Farmer fails to prevent second trial over defective tractor

A Cork farmer whose defective tractor was responsible for the death of a boy has failed to stop a second prosecution being taken against him over the incident.

The High Court has ruled that the Health and Safety Authority (HSA) can proceed with a prosecution against George Ross, over the death of Michael ‘Haulie’ Murphy, at Knocknacullota, Killavullen, Co Cork, on August 23, 2013.

The 14-year-old boy, who was the son of one of Mr Ross’s employees, fell out through the door of the tractor, which was kept shut with plastic cable ties, as the lock was broken.

The ruling follows an application by Mr Ross, aged 67, of Convamore, Ballyhooly, Co Cork, for a judicial review of the decision by the HSA to initiate a prosecution against him in Cork Circuit Criminal Court, under the Safety Health and Welfare at Work Act 2005, on the grounds that the tractor was an unsafe place to work because of the defective door lock.

Mr Ross is challenging the proceedings because he was convicted and fined €700 by Mallow District Court in October 2014 under the Road Traffic Act for allowing to be driven a vehicle that was a danger to the public.

Mr Ross claimed he should not be prosecuted a second time for what is substantially the same offence.

Lawyers for the farmer argued it was an abuse of process to be facing another trial, where the offences were on an ascending scale of gravity. They also claimed that the trial for the workplace offence should have taken place at the same time as the other prosecution.

Mr Justice Michael Twomey said the road traffic offence was minor, while the other was a serious and indictable offence, where Mr Ross could face trial by a jury, as it carried a maximum fine of €3m and a two-year prison sentence.

The judge said the difference between the two offences was highlighted by the fact that there was no requirement that any harm was actually caused to any person under the road traffic offence, unlike the offence under workplace legislation.

Mr Justice Twomey said the elements necessary to prove the two offences were not the same. He claimed the two charges were different in nature, in degree, and in moral turpitude.

The court noted that Mr Ross was aware, since mid-2015, that the HSA was conducting an investigation into the accident, as it had seized his tractor after his prosecution in Mallow District Court.

Mr Justice Twomey said the farmer should have known a prosecution was possible, if not probable.

He added:

For this reason, Mr Ross should not have been surprised that the death of a young boy might lead, at a minimum, to further investigation and perhaps a charge

The judge said it was perhaps understandable why Mr Ross had sought to prohibit the HSA prosecution, which he regarded as a “second” trial, as the degree of the farmer’s moral culpability for Michael’s death was very different to other deaths that appeared before the courts.

Mr Justice Twomey said it would also have been preferable if the HSA proceedings could have been prosecuted more quickly.

Although Mr Ross should not have had the prospect of a trial hanging over him for four years, Mr Twomey said the power to prohibit a prosecution should only be used in exceptional circumstances and its use was not justified in the case before him.