REGINA v MOORE [2015] NSWCCA 316

REGINA v MOORE [2015] NSWCCA 316

Taking the Crown case at its highest, it was open to find that in the specific circumstances—including the respondent's control over the site, assumption of safety responsibility, knowledge of the risk, and potential to avert it easily—a common law duty of care could exist, making the prosecution not foredoomed to fail. The permanent stay was granted in error and should be quashed. The statutory duty in s 20 of the Occupational Health and Safety Act did not itself support a charge of manslaughter, but did not preclude a common law duty arising in the factual context.

Parties
Appellant: Crown; Respondent: Wayne Moore
Jurisdiction
Australia
Judgment Date
15 December 2015
Procedural Posture
Criminal Appeal / Appeal Against Permanent Stay of Indictment (pre Trial Interlocutory)
Outcome
Appeal allowed (majority); order granting permanent stay quashed; matter remitted for trial. (Simpson JA dissented, would have dismissed the appeal.)
Legal Topics
Involuntary Manslaughter, Criminal Negligence, Duty of Care, Employer Liability, Statutory Interpretation, Permanent Stay of Proceedings
Criminal Law Involuntary Manslaughter Criminal Negligence Duty of Care Employer Liability Statutory Interpretation Permanent Stay of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Crown

Appellant

Wayne Moore

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Permanent Stay of Indictment (pre Trial Interlocutory)

Legal Issues

  1. 1 Whether the respondent (a director/employee) owed a legal duty of care to a fellow employee sufficient to found a charge of manslaughter by omission
  2. 2 Whether a breach of s 20 of the Occupational Health and Safety Act 2000 (NSW) could found manslaughter by criminal negligence
  3. 3 Whether the case should be stayed as foredoomed to fail because no such duty could arise

Ratio Decidendi

Taking the Crown case at its highest, it was open to find that in the specific circumstances—including the respondent's control over the site, assumption of safety responsibility, knowledge of the risk, and potential to avert it easily—a common law duty of care could exist, making the prosecution not foredoomed to fail. The permanent stay was granted in error and should be quashed. The statutory duty in s 20 of the Occupational Health and Safety Act did not itself support a charge of manslaughter, but did not preclude a common law duty arising in the factual context.

Court Disposition

Appeal allowed (majority); order granting permanent stay quashed; matter remitted for trial. (Simpson JA dissented, would have dismissed the appeal.)

Orders

  • Appeal allowed.
  • Quash the stay granted by Whitford DCJ on 8 September 2014.