DPP v P.J. Carey (Contractors) Ltd

CourtCourt of Criminal Appeal
JudgeMr. Justice Hardiman
Judgment Date17 October 2011
Neutral Citation[2011] IECCA 63
Docket Number[C.C.A No. 173 of 2008]
Date17 October 2011
PJ Carey (Contractors) Ltd v DPP





[2011] IECCA 63




Burden of proof

Reversed burden of proof - Onus of proof on accused -Standard of proof - Alleged breach of statutory safety provisions -Alleged failure to provide safe system of work - Prima facie case against accused - Whether burden of proof reversed - Whether onus of proof on accused - Whether breach of statutory safety provisions - Whether reversed burden of proof evidential or legal - Whether failure to provide safe system of work - Whether prima facie case established - v Smyth [2010] 3 IR 688 and Hardy v Ireland [1994] 2 IR 550 applied - Safety Health and Welfare at Work Act 1989 (No 7), ss 6 and 50 - Appeal allowed (173/2008 - CCA - 17/10/2011) [2011] IECCA 63

People (DPP) v PJ Carey (Contractors) Ltd

Facts The applicant sought leave to appeal against its conviction on Count 2 on the indictment for an offence contrary to the Safety Health and Welfare at Work Act, 1989. The applicant had been initially charged with 5 offences, but the learned trial judge directed that Counts 4 and 5 be withdrawn from the jury, Count 3 was subsequently withdrawn and the applicant was acquitted of Count 1. The charges arose from an incident whereby an employee of the respondent was killed when an unsupported trench collapsed and buried him. It was submitted on behalf of the applicant that the learned trial judge erred in failing to withdraw the entire case from the jury on the basis that there was no case to answer. The basis of that application was that all of the evidence called on behalf of the prosecution favoured the defence. No expert evidence was called by the prosecution and the evidence of the defence expert was consistent only with the applicant's innocence. The respondent relied on res ipsa loquitur and also relied on section 50 of the Safety Health and Welfare at Work Act, 1989, which provided that for an offence such as the one at issue here "it shall be for the accused to prove 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".

Held by the CCA; Hardiman J. (Budd, de Valera JJ) in allowing the appeal and setting aside the conviction: That the phrase 'res ipsa loquitur' was not remotely adequate to carry a serious criminal prosecution such as the one in this case past an application for a direction. The offence charged herein was one that required proof of a failure to provide a safe system of work and it was clearly the case that no prosecution witness said there had been such a failure. Section 50 of the 1989 Act created a reversed burden of proof but cast only an evidential burden of proof on the applicant herein, which could be discharged by proving the existence of a reasonable doubt. That evidential burden was discharged by the applicant by the evidence of the prosecution, whether given in direct evidence or in cross-examination. It seemed that the learned trial judge misinterpreted section 50 so as to cast a substantive onus of legal proof upon the defendant. Section 50 ought not to have come into play until the respondent established a prima facie case that the applicant's system of work was unsafe. However, that was not established in this case, as both sides agreed that the prosecution evidence was wholly favourable to the applicant. In all the circumstances of this case, it was not appropriate to order a retrial.

DPP v Hardy [1994] 2 IR 550 and DPP v Kieran Smyth [2010] 3 IR 668 followed.

Reporter: L.O'S.




DPP v HARDY 1994 2 IR 550

DPP v SMYTH 2010 3 IR 668




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 28 th 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 7 th 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 9 th 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 9 th 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...

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