DPP v O'Reilly Commercials Ltd

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 03 October 2018
• Neutral Citation: [2018] IECA 358
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 205/2013
• Date: 03 October 2018

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

O'REILLY COMMERCIALS LIMITED

Appellant

[2018] IECA 358

Record No: 205/2013

THE COURT OF APPEAL

Conviction – Failing to conduct an undertaking so as to ensure so far as reasonably practicable that persons other than employees are not exposed to risks to safety or health contrary to ss. 7(1) and 48(1)(a) of the Safety, Health and Welfare at Work Act 1989 – Unsatisfactory trial – Appellant seeking to appeal against conviction – Whether trial was satisfactory

Facts: The appellant, O'Reilly Commercials Ltd, appealed to the Court of Appeal against conviction on foot of a health and safety prosecution, the background to which lay in a single vehicle road traffic accident which occurred on the 4th of April 2006 near Erry, Clara, Co Offaly. The accident involved a Mercedes school bus which overturned and in which a schoolboy suffered serious injuries from which he died. The specific conduct that was said to constitute a failure by the appellant to discharge the duty to which it was subject by virtue of s. 7(1) of the Safety, Health and Welfare at Work Act 1989 was the failure to note the modified rear suspension in the bus in question in the course of the (DOE) CV Test carried out by the appellant between the dates specified. The appellant submitted that: 1) the trial judge erred in failing to accede to the defence application to quash the indictment before the commencement of the trial; 2) the judge erred in ruling that documents relating to vehicle testing produced by the appellant could not be shown to a prosecution witness in the course of evidence; 3) the judge erred in allowing the prosecution to adduce the opinion evidence of Mr Wynne which went to the ultimate issue in respect of count one on the indictment; 4) the judge erred in ruling that if counsel for the defence put a proposition to a prosecution witness who interviewed a director for the appellant company that was based on information favourable to the appellant then the prosecution would be allowed to refer to other material which was unfavourable to the appellant; 5) the judge erred in failing to direct the jury to record verdicts of not guilty in respect of all the counts on the indictment on the basis of the four grounds advanced by counsel for the appellant; 6) the judge erred in ruling that the 'Nolan' report was inadmissible on the basis that it was not an expert report in respect of which an opinion had been formed; and 7) the verdict of the jury was perverse in recording a conviction on count one on the indictment after recording verdicts of not guilty in respect of counts two, three and four.

Held by the Court that, in circumstances where it had rejected all of the appellant's complaints, it was satisfied both that the trial was satisfactory and that the verdict was safe.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 3rd of October 2018 by Mr. Justice Edwards .

Introduction

1 This appeal is against the appellant's conviction on foot of a health and safety prosecution, the tragic background to which lies in a single vehicle road traffic accident which occurred on the 4th of April 2006 near Erry, Clara, Co Offaly. This accident involved a Mercedes school bus which overturned and in which a schoolboy, Michael White, suffered serious injuries from which he died.

2 It is uncontroversial that the direct cause of the accident was a failure of the rear suspension of the vehicle, causing the back axle to detach while the vehicle was being driven with catastrophic consequences. Moreover, the rear suspension which failed was not the vehicle manufacturer's original leaf spring suspension, but a modified air ride suspension fitted by a previous owner of the vehicle and which was not approved by the vehicle's manufacturer.

3 As a commercial vehicle, the school bus in question was required to have, and at the time of the accident did have, a Certificate of Roadworthiness issued by the relevant issuing authority (a city or county council which exercises or performs the functions of a licensing authority under the Finance (Excise Duties) (Vehicles) Act 1952) under Regulation 15 of the European Communities (Vehicle Testing) Regulations 2004, S.I. No 771/2004, ('the 2004 Regulations'). As a prerequisite to obtaining this certificate, the vehicle's owner had to present his vehicle for a Department of the Environment (DOE) Commercial Vehicle Test ('(DOE) CV Test') to be carried out by an authorised tester pursuant to Regulation 12 of the 2004 Regulations, and obtain a statement of vehicle roadworthiness (a 'Pass Statement') given by the authorised tester under Regulation 14 of the 2004 Regulations. Once obtained, the Pass Statement was then submitted to the relevant issuing authority in support of the application for the Certificate of Roadworthiness.

4 In this case, the appellant was an authorised tester for the purposes of the 2004 Regulations and the vehicle in question had been presented for, and had undergone, a (DOE) CV Test carried out by the appellant who had issued a Pass Statement in respect of it, on foot of which the Certificate of Roadworthiness in force at the time of the accident had been obtained. There was a conflict on the evidence concerning the exact date on which the actual inspection comprising the (DOE) CV Test was carried out, but it was uncontroversial that the Pass Statement was issued on the 1st of September 2005.

5 Section 7 (1) of The Safety, Health and Welfare at Work Act 1989 ('the Act of 1989'), which was in force up until the 31st of August 2005, provided that:

'It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not exposed to risks to their safety or health.'

6 Section 48 (1)(a) of the Act of 1989 in turn rendered it an offence for a person to fail to discharge the duty to which he is subject by virtue of s.7(1) of the Act of 1989.

7 Following an investigation by the Health and Safety Authority arising out of the bus crash in which young Michael White died, the appellant was prosecuted on a four count indictment before the Dublin Circuit Criminal Court in respect of four separate alleged offences under s.7(1) of the Act of 1989, in respect of the conduct of its undertaking as an authorised tester of commercial vehicles. On the 27th of March 2013, the appellant was convicted by a majority verdict of a jury on count No. 1 on the indictment, but was acquitted on counts nos. 2, 3 and 4.

8 Count no. 1 was pleaded in the following terms:

'STATEMENT OF OFFENCE

Failing to conduct an undertaking so as to ensure so far as reasonably practicable that persons other than employees are not exposed to risks to safety or health contrary to Section 7(1) and Section 48(1)(a) of the Safety, Health and Welfare at Work Act 1989 as amended.

PARTICULARS OF OFFENCE

You, O'Reilly Commercials Limited, between 5th and 6th days of August 2005, both days inclusive, at or near Ballinalack, Mullingar, County Westmeath, being a place of work, and you being an employer within the meaning of the Safety Health and Welfare at Work Act, 1989 (as amended) did fail to conduct your undertaking in such a way as to ensure, so far as was reasonably practicable, that persons not in your employment who may be affected thereby were not exposed to risks to their safety, or health in that, while conducting a vehicle test in respect of a bus bearing registration number 89 WD 2218 pursuant to the European Communities (Vehicle Testing) Regulations 1981 to 2008, you did fail to note the modified rear suspension in the said vehicle.'

9 Accordingly, in terms of count No. 1, the specific conduct that was said to constitute a failure by the appellant to discharge the duty to which it was subject by virtue of s.7(1) of the Act of 1989, was the failure to note the modified rear suspension in the bus in question in the course of the (DOE) CV Test carried out by the appellant, between the dates specified.

10 Following a twenty-four day trial, the appellant was convicted on count No. 1 and acquitted on the other counts on the indictment. The appellant now appeals against his conviction on count No. 1 on seven grounds.

Grounds of Appeal

11 The grounds on foot of which the appeal is advanced are as follows:

1. The trial judge erred in failing to accede to the defence application to quash the indictment before the commencement of the trial;

2. The trial judge erred in ruling that documents relating to vehicle testing produced by the appellant could not be shown to a prosecution witness in the course of evidence;

3. The trial judge erred in allowing the prosecution to adduce the opinion evidence of Tony Wynne which went to the ultimate issue in respect of count no. 1 on the indictment;

4. The trial judge erred in ruling that if counsel for the defence put a proposition to a prosecution witness who interviewed a director for the appellant company that was based on information favourable to the appellant then the prosecution would be allowed refer to other material which was unfavourable to the appellant;

5. The trial judge erred in failing to direct the jury to record verdicts of not guilty in respect of all the counts on the indictment on the basis of the four grounds advanced by counsel for the appellant;

6. The trial judge erred in ruling that the "Nolan" report was inadmissible on the basis that it was not an expert report in respect of which an opinion had been formed;

7. The verdict of the jury was perverse in recording a conviction on count one on the indictment after recording verdicts of not guilty in respect of counts two, three and four.

Uncontroversial matters

12 At the opening of the...