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Conviction for failure to ensure safety in a fire set aside due to judge’s charge

By: Bakshi Mohit BL

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Court of Appeal quashes conviction for failure to ensure safety in a fire, and reorders trial on the grounds that: (a) there were concerns about how the ingredients of the offence other than “control” were dealt with in the trial judge’s charge; (b) it was misleading for the jury to be told that the accused’s knowledge was irrelevant, without any qualification and without linking of the issue of knowledge to the “reasonably practicable” issue; and (c) there were concerns that the appellant may have been convicted in circumstances where the jury did not properly understand the ingredients of the offence, or how these might be proved by the prosecution.

McCarthy J: Criminal Law – appeal against conviction and sentence – conviction for failure to ensure safety in the event of a fire – breach of an obligation contained in s.18(2)(d) of the Fire Services Act 1981 – appellant sentenced to pay a fine of €50,000 in monthly instalments of €1,000 over 50 months and 12 months’ imprisonment in default should any payment or part thereof be missed – judgment about conviction only – fire broke out in Kennedy Plaza Apartments, a five-floor building of which accused was the sole owner – premises consisted of twenty-four apartments spread over three floors – occupied by thirty-two residents at the time of the fire – appellant stated in interview that a new fire alarm system was installed after he had purchased the property in 2010 – an engineer noted that the alarm was certified to standard as there were 135 checks before the alarm was “signed off” for use to ensure that it was compliant with the regulations – one Mr Gorski was employed as a caretaker for general “handyman type work” on the property as well as for other properties belonging to the appellant – Mr Gorski did not give evidence at trial but had previously been interviewed by Gardai – large parts of what Mr Gorski had said were elicited by both parties at the trial – this was hearsay and inadmissible but this having occurred the jury could act on it, the fact it was hearsay going to weight – at around 12:30am one Mr. Muzurek, a resident of the building, called Mr Gorski to inform him that a fire alarm had been going off for thirty minutes – Mr Muzurek had to ring Mr Gorski as he worked in the building from 8am to 5pm (Mondays to Fridays) – outside these hours, he was on call – Mr Gorski advised Mr Muzurek to check on the apartment where the fire alarm went off and he told him to turn it off – Mr Muzurek stated that he was told by Mr Gorski to manually disconnect the alarm by removing the fuse and batteries and that he would reset the alarm the next day – Mr Gorski was present in the building effecting repairs when he was told about the fire – the fire alarm system was still disabled when the fire started – fire was first noticed at 4:20pm – whether the trial judge erred in law and/or in fact in failing to grant a direction on application by the defence – whether the trial judge erred in law and/or fact in permitting the Prosecution to amend the indictment following the close of the Prosecution case – “control” is not defined in the relevant section of s.18(2) of the Fire Services Act 1981 – the question of who is or is not the person “having control” must be decided by applying the common law definition of that concept to the evidence – while there is a distinction between ownership and control, there was sufficient evidence of control – appellant was owner, in receipt of rent, retained a caretaker who was responsible for the alarm, appellant was also responsible for the installation of the alarm which by definition imports of control or is at least evidence relevant to prove it – whether or not the amendment could have given rise to the prejudice identified, namely, the creation in the minds of the jury of an erroneous understanding of the offence – there was no risk that this occurred – indictment referred to “control” both before and after the amendment – ownership is relevant to control and the inclusion of the reference to the fact that the appellant was the owner merely highlighted that without substituting it for the word “control” – the trial judge explained the nature of the offence in the charge and made it clear that the key issue was control – although the Court rejects the two grounds of appeal relied upon by the appellant’s counsel, the Court proposes nonetheless to quash the conviction and order a re-trial – because of concerns about how the ingredients of the offence other than “control” were dealt with in the trial judge’s charge – in particular her direction to the jury that knowledge on the part of the appellant was entirely irrelevant – considerable confusion on all sides about matters of strict liability, mens rea, knowledge and reasonable practicability – this culminated in the trial judge charging the jury that the offence was one of strict liability and that the issue of “knowledge” was irrelevant - in a context where a live factual issue in the trial was whether or not the appellant knew that the alarm had been disabled the night before the outbreak of the fire - only direct evidence to this effect was the hearsay evidence of Mr Gorski – necessary to recall the wording of the legislative provisions creating the offence – The words “as far as is reasonably practicable” are key – they indicate that the duty is not strict or absolute – that there are circumstances where the person may be absolved of liability even though there has in fact been a failure to ensure safety – person must also have failed in his or her duty to take “reasonably practicable” steps to ensure safety – onus is on the prosecution to prove inter alia that the person failed to meet an objective standard of taking all “reasonably practicable steps” – knowledge of appellant on all of these matters would have been relevant on the ultimate issue which was whether he had taken “reasonably practicable” steps – his knowledge, particularly regarding what had happened the night before, was relevant even though it was not the ultimate test of his liability – it was misleading for the jury to be told that the accused’s knowledge was irrelevant, without any qualification and without linking of the issue of knowledge to the “reasonably practicable” issue – jury may well have thought that it simply did not matter whether or not the appellant knew that the alarm had been disabled the night before, whereas we are of the view that this should have formed an important part of their deliberations – concerns that the appellant may have been convicted in circumstances where the jury did not properly understand the ingredients of the offence, or how these might be proved by the prosecution – conviction quashed and matter remitted for a retrial.

Note: This is intended to be a fair and accurate report of a decision made public by a court of law. Any errors should be notified to the editor and will be dealt with accordingly.

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