WHS conviction overturned, retrial to follow

The Queensland Court of Appeal has released its reasons for overturning Multi-Run Roofing Director Gary Lavin’s conviction last month, citing a judge’s misinstruction to the jury as the cause.

In February 2019, Lavin was convicted of engaging in reckless conduct — a category 1 offence under the Work Health and Safety (WHS) Act 2011 (Qld) — after his failure to provide roof safety railings led to 62-year-old worker Whareheepa Te Amo’s death in 2014.

In the original trial, the judge instructed the jury to determine his guilt based on whether it would have been “reasonably practicable” to install the safety railings.

However, section 31 of the Act — which refers to reckless conduct — states that the judge should have directed the jury to convict based on whether Lavin had a “reasonable excuse” for not installing the safety railing.

This misinstruction lead to a miscarriage of justice and Lavin was released in May, with the order to face retrial, as a result.

Determining a reasonable excuse

Sparke Helmore Lawyers’ Partner and Head of Workplace (Brisbane), Jackson Inglis, said that if Lavin was to give an excuse in his new trial, then the jury would have to determine, beyond a reasonable doubt, whether it was “reasonable” or not.

The challenge here, is that: “The Courts have not, to our knowledge, considered what the term ‘reasonable excuse’ means in the context of the model WHS laws,” Inglis said.

As a result, “It is likely the Court will have to look at how the term ‘reasonable excuse’ has been applied under the common law and will be bound by the doctrine of precedent to follow that reasoning.

“For example, in the High Court of Australia case of Taikato v R (1996) 186 CLR 454 … Justice Dawson said ‘a reasonable excuse is no more or less than an excuse which would be accepted by a reasonable person … and if that defence is raised … it requires a decision to be made upon the question of the reasonableness of the excuse alleged’.”

Here, the jury would have to consider Lavin’s excuse and that he had instructed his workers to use harnesses and stay behind two scissor lifts when working near the roof’s edge.

However, if the Director of Public Prosecutions submits the same evidence as in the initial trial, then the jury may also have to consider a conversation between Lavin and a worker, where Lavin expressed desire to save money on the project, according to Inglis.

This is despite including the cost of hiring the railings in his initial job quote.

Lavin’s retrial date is yet to be determined and Inglis is dubious it will go ahead, given that Lavin has already served most of his initial non-suspended sentence and his company has gone into liquidation.

Nonetheless, Inglis said that Lavin’s first conviction “added further weight to the trends of increasing penalties being imposed on businesses and individuals for breaches of WHS duties and an increasing focus on individual liability”.

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