FEDERAL COURT OF AUSTRALIA

Comcare v John Holland Pty Ltd [2009] FCA 1196

EVIDENCE – pecuniary penalty proceedings under s 16(1) of the Occupational Health & Safety Act 1991 (Cth) – whether to admit written victim impact statements from victim's family members 

Held: Immediate family of deceased worker may table written material detailing the impact of death of deceased worker on their lives, being background information of assistance to Court. Material not taken into account to increase or decrease pecuniary penalties

Evidence Act 1995 (Cth) s 56(2)

Occupational Health & Safety Act 1991 (Cth) s 16(1)

Comcare v Commonwealth of Australia [2009] FCA 700 cited

R v Penn [1994] 19 MVR 367 cited

R v Previtera (1997) 94 A Crim R 76 cited

COMCARE v JOHN HOLLAND PTY LTD (ACN 004 282 268)

QUD 37 of 2009

COLLIER J

23 OCTOBER 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  The Court will receive material from Mr Paul Everett, Mrs Ann Everett and Mr Andrew McCallum, being immediate family members of Mr Mark McCallum, which material will be confined to the impact of the demise of Mr Mark McCallum on their lives.

2.                  The material referred to in paragraph 1 of these orders will be in the form of written statements.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     In the substantive proceedings before the Court the applicant alleges that the respondent has contravened s 16(1) of the Occupational Health & Safety Act 1991 (Cth) (“the Act”). The respondent admits the contravention. It is common ground that, if the Court takes a similar view, the Court may make a declaration to that effect and impose a pecuniary penalty on the respondent. The quantum of such penalty is the remaining issue in contention between the parties in the substantive proceedings.

2                     It is also common ground that, as a result of the events comprising the respondent’s contravention of the Act, Mr Mark McCallum died. Three of Mr McCallum’s relatives wish to table material by way of written statement, explaining the impact of the loss of Mr McCallum on their lives. The parties have come to an agreement regarding the Court’s reception of such material, subject to the exercise of the Court’s discretion (TS 12 October 2009 p 2 ll 25-33 and p 3 ll 19-21). However prior to reaching such agreement the respondent had opposed this course of action on the following bases which are relevant to the exercise of the Court’s discretion:

·                    The Court is not exercising criminal jurisdiction in these proceedings.

·                    Evidence that is not relevant is not admissible: s 56(2) of the Evidence Act 1995 (Cth).

·                    Even if such evidence is, or could be, relevant it should not be admitted to these proceedings. The respondent referred to comments of Hunt CJ in R v Previtera (1997) 94 A Crim R 76 in which his Honour observed, inter alia, that loss or injury suffered by persons other than the victim directly injured by the crime were not relevant to sentencing, and further that the law already recognises, without specific evidence, the value which the community places upon human life.

·                    There is no legislative authority for the reception and use of a victim impact statement of a family member in these circumstances.

·                    There is authority that it is wrong for a judge, in sentencing, to receive and act upon evidence called to show the extent of the sorrow and misery to a particular victim’s family: R v Penn [1994] 19 MVR 367.

·                    The Act provides little guidance as to the considerations to be taken into account in fixing a penalty, however reception and use of a victim impact statement is not an object of the Act.

3                     In these proceedings there is merit in permitting the immediate family members of Mr McCallum to table written material detailing the impact of the loss of Mr McCallum on their lives. The Court has discretion, as a superior court of record, to regulate its own affairs in a way which permits the Court to hear and assess such information as the Court determines to be of assistance to the Court in resolving the matters before it. I consider that in the context of these particular proceedings this material would be of some assistance in understanding the background to these proceedings: cf North J in Comcare v Commonwealth of Australia [2009] FCA 700. However I consider that the principles raised by the respondent in relation to the tabling of this material have force. In permitting this material to be admitted:

·                    the Court will receive such material only from three immediate family members of Mr McCallum, namely Mr Paul Everett, Mrs Ann Everett, and Mr Andrew McCallum (respectively, the step-father, mother and brother of Mr Mark McCallum);

·                    the material will be in the form of written statements only;

·                    the Court will not rely upon such material to increase or decrease the penalty which might otherwise be imposed in this matter by reference to the material; and

·                    the reception of this material does not mean that the Court will punish the respondent with a higher or lower penalty because of the particular value placed on the life of Mr McCallum by his family.

4                     In my view the appropriate orders are as follows:

1.                  The Court will receive material from Mr Paul Everett, Mrs Ann Everett and Mr Andrew McCallum, being immediate family members of Mr Mark McCallum, which material will be confined to the impact of the demise of Mr Mark McCallum on their lives.

2.                  The material referred to in paragraph 1 of these orders will be in the form of written statements.

Associate:

Dated:         23 October 2009