Austin v The Electricity Networks Corporation - [2014] WASCA 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: AUSTIN -v- THE ELECTRICITY NETWORKS CORPORATION [2014] WASCA 89

CORAM: PULLIN JA
NEWNES JA
MURPHY JA

HEARD: 21 FEBRUARY 2014

DELIVERED : 29 APRIL 2014

FILE NO/S: CACV 37 of 2013

BETWEEN: DALE ANTHONY CHARLES AUSTIN
Appellant
AND
THE ELECTRICITY NETWORKS CORPORATION
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :EATON DCJ
Citation  :AUSTIN -v- THE ELECTRICITY NETWORKS CORPORATION [No 2] [2013] WADC 41
File No  :CIV 1735 of 2008

Catchwords:

Tort - Negligence - Occupiers' Liability Act 1985 (WA) - Appellant suffered electric shock while removing electrical wire from disused quarry to sell as scrap metal - Electrical wire the property of respondent - Whether injuries suffered as a result of criminal conduct - Offenders (Legal Action) Act 2000 (WA), s 5(1) - Whether honest claim of right - Criminal Code (WA), s 22 - Whether circumstances in which injury suffered common to persons not involved in criminal conduct - Offenders (Legal Action) Act, s 5(2)(b)(ii)

Legislation:

Criminal Code (WA), s 22
Occupiers' Liability Act 1985 (WA)
Offenders (Legal Action) Act 2000 (WA), s 5(1), s 5(2)(b)(ii)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T Lampropoulos SC
Respondent: Mr G R Hancy

Solicitors:

Appellant: Simon Walters Solicitor
Respondent: DLA Piper Australia

Case(s) referred to in judgment(s):

Austin v The Electricity Networks Corporation [No 2] [2013] WADC 41
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

PULLIN JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of Eaton DCJ in the District Court dismissing the appellant's claim against the respondent for damages for personal injury.
The appellant was injured as a result of an electric shock he received in a disused quarry while attempting to remove electrical wires from overhead power lines to sell as scrap metal. He claimed against the respondent, the owner of the electricity network, alleging that it was negligent and in breach of the Occupiers' Liability Act 1985 (WA), in substance, in failing to disconnect the electricity to the quarry or to provide adequate warning that the power lines in the quarry were still live.
The primary judge held that the appellant was engaged in criminal conduct in collecting the scrap metal and that as the injuries sustained by him were as a result of the criminal conduct, the respondent had a defence to the claim under s 5(1) of the Offenders (Legal Action) Act 2000 (WA): Austin v The Electricity Networks Corporation [No 2] [2013] WADC 41. The appellant appeals against his Honour's decision.

Background

The accident which caused the appellant's injuries occurred in a disused quarry in the Avon Valley, east of Perth. The quarry was one of a number of quarries in the area. It had been operated by Boral Resources (WA) Ltd (Boral), but Boral had ceased operations at the quarry in 1998. It had not been used since and the plant and equipment on the site had been partly dismantled.
When in operation, the quarry had relied on a supply of electricity to power excavators, crushers, conveyers and other equipment. The electricity had been supplied by the respondent via an overhead wire network carrying three phrase, 22,000 volt electricity. Transformers in the quarry were used to convert the 22,000 volt electricity to the 415 volts used by Boral's equipment.
It was not in issue that whilst Boral owned the freehold to the site, the transformer and overhead power network belonged to the respondent.
In December 1998, after operations at the quarry had ceased, Boral asked the respondent to disconnect the electricity supply to the quarry. The respondent did so by disconnecting the electricity supply between the overhead power lines and the transformer in the quarry, at a point just

above the transformer. The power lines and other wiring above that point therefore continued to carry 22,000 volts.

In about June 2002, Mr Reece Craddock, a friend of the appellant, and Mr Dave Graham were collecting firewood in the Avon Valley when they noticed the quarry on the other side of the river. They crossed the river and inspected it, observing that it was no longer an operating quarry and there was a great deal of metal, in various shapes and forms, lying about the site.
Mr Craddock and Mr Graham subsequently drove to the site. As they approached the quarry they came upon a gate secured with a padlock. Mr Craddock cut off the padlock and replaced it with one of his own. They then proceeded to the quarry, which they explored. After collecting some of the metal, they left by the same route.
Mr Craddock discussed the find with the appellant, describing it as 'like a gold mine out there for … scrap metal' (ts 116). They decided to return to the quarry with a utility to gather some of the material on the site and sell it as scrap metal. Mr Mark Daly's father owned a utility, so Mr Daly became involved in the plan.
At about 5.30 pm on Sunday, 21 July 2002, the appellant, Mr Craddock and Mr Daly drove to the quarry in the utility. They took two torches and some tools, including wire cutters and a hacksaw. They went by the same route Mr Craddock and Mr Graham had taken, gaining access to the quarry by unlocking the gate on which Mr Craddock had put his own padlock. To the right of the gate was a large sign which bore the words 'NO UNAUTHORISED ENTRY BEYOND THIS POINT'. The sign also bore the name 'Boral Resources' and two panels of the gate had a sign bearing the words 'Western Quarries'. The primary judge found as a fact that the signs would have been illuminated by the vehicle headlights and would have been seen by the appellant [76]. That finding was not challenged on the appeal.
By the time they arrived at the quarry, some one and a half hours after setting out, the sun had set and it was dark. The group worked by torchlight for several hours using the hacksaw to cut copper wiring they found on the site into lengths which would fit into the tray of the utility. That activity came to an end when the hacksaw blade broke.
The appellant and Mr Craddock then decided to look around the rest of the quarry for smaller gauge wire. The appellant had a pair of pliers or wire cutters and Mr Craddock had a torch. They made their way to an enclosure fenced on all sides with 2.4 m high metal sheeting. A concrete plinth stood in the centre of the enclosure. On the plinth was a metal structure, on top of which an electricity transformer was secured. The top of the transformer was about 3.3 m above the ground. The enclosure was rectangular in shape and the transformer was a distance of about 1.75 m from the eastern and western sides of the fence and about 1.3 m from the northern side of the fence. There were signs affixed to the fence on two sides of the enclosure stating 'Danger High Voltage'.
The eastern and western sides of the fence each had a gate and both gates had provision to be bolted and padlocked. One gate was padlocked and while the other gate was not padlocked or bolted it could not be opened because of a build‑up of mud at its base. Immediately adjacent to the outside of the northern side of the fence were some metal posts which had previously been the supports for the switch room that had earlier been sold and removed. Each of the metal posts had a small metal plate on the top. The posts were approximately a metre high (the appellant pleaded that they were 84 cm high).
The appellant and Mr Craddock stood on top of the metal posts to look over the fence. They noticed wires hanging from the overhead power network above the transformer. They scaled the sheet metal fence and from the top of the fence leapt onto the top of the transformer. Bearing in mind that the fence was 2.4 m high, the transformer was 3.3 m high, and at its closest point the transformer was about 1.3 m from the fence, that was, as the primary judge said, perhaps with a degree of understatement, a feat of 'youthful athleticism'.
As there was limited space on the top of the transformer, Mr Craddock jumped or climbed down from it, leaving the appellant standing on top of the transformer with the wire cutters. Mr Craddock shone the torch on wires that could be cut. The appellant leaned out in the direction of a wire hanging down from the overhead power line, which unbeknown to him carried 22,000 volts of electricity. Just before the wire cutters made contact with the wire, the electric current arced across to the wire cutters and passed through the appellant to the metal transformer on which he was standing. The force of the electric shock knocked the appellant off the top of the transformer and he fell to the ground inside the compound.
Mr Craddock left the compound to find Mr Daly and the two of them then lifted the appellant over the fence of the enclosure, using a metal cable tray as a ladder, and placed him in the emptied tray of the utility. They then drove the appellant to a nearby town. From there, the appellant was taken by ambulance to Royal Perth Hospital where he subsequently underwent bilateral below‑knee amputations. He spent four weeks in Royal Perth Hospital, before being transferred to Shenton Park Rehabilitation Clinic where he was fitted with prostheses to both legs.

The appellant's action

The appellant commenced proceedings against the respondent for damages for personal injury. The appellant alleged that the respondent was negligent and in breach of the Occupiers' Liability Act in, among other things, failing to disconnect the electricity supplied to the quarry at a power pole some distance outside the quarry; failing to erect prominent signs warning that, despite the quarry having been closed, the power line near the top of the transformer was still alive and dangerous, carrying 22,000 volts; allowing the enclosure and the overhead wires leading to it to remain in an unsafe state after closure of the quarry; and failing to prevent access to the area of the enclosure and its electricity supply.
The respondent denied liability. It alleged, among other things, that it had a defence under s 5(1) of the Offenders (Legal Action) Act, as when the injuries were suffered the appellant was in the enclosure with the intention of committing, or in the course of committing, an indictable offence, namely stealing, attempted stealing or attempted criminal damage.
In reply, the appellant relied on s 22 of the Criminal Code (WA), contending that he honestly and reasonably believed that the metal and wire at the quarry had been abandoned and that it was permissible to take it for scrap metal. Alternatively, he relied on s 5(2)(b)(ii) of the Offenders (Legal Action) Act, contending that the injuries he suffered arose from circumstances which were separate from those to which he was exposed by reason of his criminal conduct and were circumstances to which he was exposed in common with other persons who were not engaged in criminal activity.
The primary judge dismissed the claim, finding that the respondent had a defence under s 5(1) of the Offenders (Legal Action) Act.

The statutory provisions

It is convenient, before turning to the primary judge's reasons for decision, to describe the Offenders (Legal Action) Act. It is a very short Act.
It is described in its long title as '[a]n Act to prevent offenders and others from taking legal action in respect of harm suffered in the course of committing an offence'. It applies to an action whether the cause of action arose before or after the coming into operation of the Act: s 4. (The Act came into operation on 17 November 2000.) The only substantive provision is s 5, which is as follows:
(1)It is a defence to an action in respect of injury or loss suffered by a person (the offender) for the defendant to show that the injury or loss was suffered in the course of criminal conduct by the offender.
(2)Subsection (1) does not apply if the person bringing the action can show that the injury or loss suffered by the offender -
(a)arose from an unlawful act that was intended to result in the offender suffering injury or loss; or
(b)arose from circumstances -
(i)which were entirely separate from those to which the offender was exposed by reason of being engaged in criminal conduct; and
(ii)to which the offender was exposed in common with other persons who were not engaged in criminal conduct.
(3)This section has effect despite anything in section 5 of the Occupiers' Liability Act 1985.
The Act provides, by s 3, as follows:
(1)In this Act, unless the contrary intention appears -
action means an action in tort, an action of a similar kind to an action in tort, or an action under the Fatal Accidents Act 1959;
criminal conduct means -
(a)the commission of an offence; or
(b)anything done or omitted to be done for the purpose of the commission of an offence, including -
(i)planning it;
(ii)preparing for it;
(iii)travelling to or from the place where it is committed;
(iv)concealing it;
(v)disposing of anything used in the course of it or obtained from it.
(2)A reference in subsection (1) to an offence is a reference to -
(a)an indictable offence against a written law or a law of another State, a Territory or the Commonwealth;
It is notable that 'criminal conduct' is very widely defined.
For completeness, it is appropriate also to set out the relevant part of s 22 of the Criminal Code, which provides that:
[A] person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without an intention to defraud.

The reasons of the primary judge

The primary judge noted at [83] that the onus lay on the respondent to prove that the appellant was engaged in criminal conduct and to do so to the level of satisfaction described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 ‑ 363.
His Honour observed that the quarry had been disused since 1998 and accepted that at the time of the accident it had the appearance of being disused. There was, however, no evidence that Boral or the respondent had in fact renounced ownership of the material in the quarry and the appellant did not contend otherwise. The primary judge concluded that the plant, equipment and other material at the quarry remained the property of either Boral or the respondent [56]. His Honour further found that it was the intention of the appellant and his companions to remove material from the site and sell it, the effect of which would be to permanently deprive the owner of that material [57].
The primary judge noted that an honest claim of right as to the material in the quarry must be an honest claim by the appellant as to an entitlement in, or with respect to, that material. His Honour accepted that an honest claim of right need not be reasonable and that it may be made out even though it might be unfounded in law or in fact.
His Honour did not, however, accept that the appellant had an honest belief that the owner of the material in the quarry had relinquished or abandoned ownership of it - that 'nobody owned it' - and that he was entitled to take it [62].
His Honour considered that the material the appellant intended to take was plainly someone else's property. It was clearly valuable and could not reasonably have been regarded as having been discarded in the way that a householder might discard chattels by putting them on the verge for collection by the local authority or scavengers [62].
As mentioned above, his Honour found that when they arrived at the gate which Mr Craddock had relocked with his own padlock, the appellant saw the signs erected at the gate. His Honour also concluded that due to the close association between the appellant and Mr Craddock, the appellant would have been aware that they were going through a gate that would have been locked to them but for Mr Craddock's earlier interference with the padlocks [63].
The primary judge did not accept the appellant's explanation that they went to the quarry at night because the utility was available to them only that day and the appellant had been delayed until late afternoon at the circus with his son. His Honour found that they deliberately went at night because they were less likely to be detected [64].
The primary judge referred to the cross‑examination of the appellant as to his state of mind when going to the quarry. His Honour noted that it had emerged from the cross‑examination that what the appellant knew about the quarry before setting out that night he had learned from speaking to Mr Craddock. When asked what had led him to the belief that no‑one owned the property and that he could take what he liked, he had said because Mr Craddock had told him it was a disused quarry with piles of scrap metal lying everywhere [70]. The appellant had agreed that Mr Craddock had not suggested that he had a right to go there and take things, and that he did not ask Mr Craddock if he (Mr Craddock) had permission to do so [71].
The primary judge summarised his findings of fact as follows:
1.The [appellant] had never been to the quarry before 21 July 2002.
2.What he knew of the quarry prior to his arrival was derived from his conversations with Reece Craddock.
3.He made no enquiry as to the ownership of the land, the fixtures or any property at the quarry.
4.He made no request of anyone for permission to enter the quarry or to take or damage things from it.
5.He went to the quarry with the intention of taking property with a view to later selling it.
6.He went with the intention of damaging property, in order to take it.
7.When the appellant entered the quarry he knew that he was on another's property, probably that of Boral Resources [80].
The primary judge found that the appellant, Mr Craddock and Mr Daly had no belief that they had an entitlement to take material from the quarry. His Honour concluded that they must have known that the property in the quarry was the property of the quarry owner or, in the case of the transformer, of the electricity supplier. They went to the quarry in order to take property which they regarded as valuable and with the intention of depriving the owner permanently of it [81] ‑ [84].
The primary judge then turned to the appellant's contention that s 5(1) of the Offenders (Legal Action) Act did not apply because of the operation of s 5(2)(b)(ii).
The appellant pleaded that when electricity was supplied to a transformer a 'humming noise' was emitted by the transformer. It was alleged that the appellant was negligent in failing to erect prominent signs warning that despite the absence of a humming noise the power lines near the top of the transformer were still live and dangerous, carrying 22,000 volts of electricity. The appellant argued that the absence of such a warning sign exposed any person, whether or not they were engaged in criminal conduct, to the risk of injury from the live power lines above the transformer.
The primary judge rejected that argument. His Honour accepted that all transformers make a humming noise to some extent when operating, but found there was no evidence that the appellant or Mr Craddock knew that [90]. The appellant's evidence was simply that when he looked over the fence all was quiet.
The appellant also contended that the risk of injury from electric shock extended beyond someone engaged in criminal conduct because the live power lines were strung for a distance of 950 m from the transformer, whereas the electricity could have been disconnected at a point outside the quarry. The appellant relied upon the finding by the primary judge that the area around the quarry was frequented by walkers, campers and others, and that, although the quarry was not a picturesque area, some of them may stumble upon or be attracted into the quarry [91]. The appellant submitted that such people would be exposed to the risk of injury from electric shock by, for example, a broken wire or fallen pole, or from gaining access to the enclosure.

The primary judge rejected that contention. His Honour noted that for virtually their whole length the overhead power lines were at least 5.5 m, and mostly 7 m, above the ground. The poles were approximately 100 m apart. It is a form of network common not only in rural areas but also urban areas. It did not of itself ordinarily pose a risk to members of the public [97]. His Honour considered that someone who came across the quarry or was in the vicinity of the compound would not be exposed to risk. The only persons exposed to risk were those involved in criminal activity of the sort in which the appellant and his companions were involved, namely stealing, attempted stealing or attempted criminal damage [102]. His Honour concluded that s 5(2)(b)(ii) of the Offenders (Legal Action) Act had no application.
The primary judge then turned to the appellant's claims under the Occupiers' Liability Act and in negligence. His Honour found that having regard to s 5 of the Occupiers' Liability Act and his findings under the Offenders (Legal Action) Act, the respondent had a good defence to the claim under the Occupiers' Liability Act. His Honour considered that there was effectively no distinction between an action at common law for negligence and an action under the Occupiers' Liability Act, because the latter merely stipulates the content of the duty of care owed by an occupier at common law. There was therefore no need separately to consider the common law claim in negligence [106] ‑ [108].
The appellant's claim was dismissed.

The grounds of appeal

The appellant relied upon the following grounds of appeal:
1.In determining for the purposes of s 5(1) of the Offenders (Legal Action) Act 2000 whether or not the Respondent had established fraudulent intent for the purposes of s.371 of the Criminal Code, and absence of an honest claim of right under s.22 of the Criminal Code, the learned trial Judge erred in law and fact by failing to properly determine those issues.
Particulars
1.1It was necessary for the trial Judge to isolate and only consider the evidence of the subjective knowledge and intent of the Appellant, but failed to do so and treated the knowledge of the Appellant, Mr Craddock and Mr Daly collectively.
1.2The learned trial Judge drew inferences that certain discussions took place, and therefore the Appellant had knowledge arising from those discussions, when those matters were not put in cross examination of the Appellant or Mr Craddock, and there was no direct evidence of any such discussions, and no proper basis for drawing those inferences.
1.3The learned trial Judge failed to consider whether the Respondent had proved that the Appellant did not have a belief that the metal on the quarry was scrap and abandoned in relation to the elements of s.371, and therefore failed to determine whether the Appellant had established a fraudulent intention (which is a different issue to whether or not the owner had in fact and law relinquished ownership or deserted the goods).
1.4Hypothetical questions to the effect that the Appellant did not have express permission, and that Mr Craddock did not use words to the effect that he had a 'right' to go to the quarry and take things, were of no probative value, when the issue was what was in fact said, and whether the Respondent had proved the absence of belief.
1.5The learned Trial Judge did not consistently bear in mind that the onus was upon the respondent to prove that the Appellant did not have the requisite belief, rather than the Appellant establishing that he did.
1.6If the learned trial Judge correctly assessed the evidence, the correct conclusion would have been that the Respondent had not established criminal conduct within the meaning of s.5(1) of the Offenders (Legal Action) Act 2000.
2.In considering the proper interpretation and operation of s.5(2)(b) of the Offenders (Legal Action) Act 2000, the learned trial Judge erred in law and fact by unduly limiting the relevant circumstances and risks to the offender, and other persons not involved in offending, and thereby failed to find that s 5(2)(b) applied in the circumstances of this case.
…
2.3
The learned trial Judge took too narrow a view of the relevant circumstances and the risks by focusing upon the circumstances of this particular accident, rather than identifying the relevant circumstances as being that the whole 950 meters of power line was unnecessarily kept live and carrying 22,000 volts, and the relevant risk to entrants upon the quarry being direct or indirect contact to the electricity in the live power lines.
2.4The learned trial Judge failed to determine how the circumstances, by reason of being engaged in criminal conduct, exposed the Appellant to risk of injury, and merely found that the Appellant was in the course of criminal conduct when he suffered his injuries.
2.5The learned trial Judge incorrectly found that there was no evidence that the Appellant knew the transformers in operation omitted a humming noise. In any event, the state of the compound and surrounding area suggested that the transformer was no longer in operation, and the contradicted evidence was that there is no way of knowing simply by looking at power lines that they are live. The risk to an unsuspecting person regarding contact with electricity in the power lines is the same regardless of the exact circumstances in which that occurs, and it makes no difference to risks associated with such contact whether that person happened to be engaged in the commission of a relevant offence at the time.
2.6By focusing on too narrow a range of relevant circumstances, the learned trial judge failed to have regard to the risks that the 950 metres of power line posed to persons in the vicinity of the power line who were not involved in the commission of an indictable offence in determining whether the Appellant was exposed in common with other persons to the risk of direct or indirect contact with high voltage electricity.

The disposition of the appeal

Ground 1

In his oral submissions, senior counsel for the appellant identified particular 1.2 as the mainstay of this ground of appeal (appeal ts 3). It was submitted on behalf of the appellant that the finding of the primary judge that the appellant and his companions had known that what they were doing was wrong was based on an inference his Honour had impermissibly drawn that there had been prior discussions between the appellant and Mr Craddock in which the appellant had been told things that made it apparent that he could not have any claim of right (appeal ts 7). In addition, it was argued that in finding the appellant and his companions had set out at night to avoid detection his Honour had wrongly rejected the evidence of the appellant that they would have left earlier but he had been delayed in leaving for the quarry because he had gone to the circus with his son (appeal ts 9 ‑ 10).
It was submitted that it was not open to the primary judge to find that there had been such prior discussions between the appellant and Mr Craddock in circumstances where it had not been put to the appellant or to Mr Craddock that any such conversation had occurred. Similarly, it was not open to his Honour to reject the appellant's explanation that they were late in leaving for the quarry because he had been delayed at the circus, when it had not been put to the appellant that his explanation was untrue. Counsel referred to Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 [71] ‑ [72], [74] (Heydon, Crennan & Bell JJ) for the proposition that it is not open to a judge to find that a witness was not speaking the truth on a particular point and is not to be believed on that point, unless the witness is on notice that his evidence is challenged and is given an opportunity to deal with it.
It was submitted that it was those findings which had led his Honour erroneously to conclude that the appellant did not hold an honest belief that he was entitled to take material from the quarry.
That submission should be rejected. It is based upon a misunderstanding of the process of reasoning which led the primary judge to reject the appellant's honest claim of right.
Before turning to consider the appellant's submission in light of his Honour's reasons, I should observe that no objection was taken to his Honour's statement of the relevant principles. The primary judge noted at [83] that in order for the appellant to have a belief that he had a right or entitlement to take the property from the quarry, he must have an honest belief that the owner of the property had relinquished or renounced ownership of it. His Honour also noted that it was for the respondent to show that the appellant did not have that belief [69].
It is evident from the primary judge's reasons that there were a number of matters which led him to conclude that it had been established the appellant did not hold the requisite belief.
The primary judge observed that in cross‑examination the appellant had said that his belief he could take material from the quarry was based on statements by Mr Craddock that the quarry was disused and there were 'piles of scrap' there including old conveyors and rusting equipment. The appellant had agreed, however, that Mr Craddock had not suggested to him that he or Mr Craddock had a right to take things from the quarry and the appellant himself had made no enquiry as to the ownership of the quarry or the equipment located there.
His Honour also had regard to the nature of the equipment and its location at the quarry, concluding that it was obvious that it was someone else's property, in all probability that of the owner of the quarry. It was clearly valuable, as the appellant and his companions recognised. His Honour concluded that in the circumstances it could not reasonably have been regarded by the appellant and Mr Craddock as having been discarded by the owner, in the sense that the owner had relinquished or renounced ownership of it. The primary judge recognised that the appellant's belief for the purposes of s 22 of the Criminal Code did not have to be reasonable [83]. But the reasonableness of the belief was plainly a relevant factor in determining whether such a belief was honestly held.
His Honour further found that when they reached the gate to which Mr Craddock had attached his padlock, the appellant would have seen the large sign prohibiting unauthorised entry to the property. It was not suggested that the appellant thought their entry was authorised in some way.
In addition, the transformer where the accident occurred was located within a securely fenced enclosure that was obviously designed to keep out members of the public and the electrical wire the appellant sought to remove was not in the nature of loose odds and ends but remained attached to the power supply network.
As I have mentioned, the appellant sought to challenge his Honour's finding that, due to the long and close association between Mr Craddock and the appellant, the appellant would have been aware that they would have been locked out of the property had Mr Craddock not replaced the previous padlock on the gate with his own padlock. Senior counsel for the appellant submitted that it was implicit in the finding that there had been a conversation to that effect between Mr Craddock and the appellant, although there was no evidence of such a conversation and it was not put to either Mr Craddock or the appellant in cross‑examination.
I do not think it matters whether or not that inference was open to his Honour. I do not consider that the finding is of any real significance. What is clear is that the appellant was aware that he was entering upon land the road to which was barred by a gate and contrary to a sign which the owner of the land had erected prohibiting entry. Whether or not the appellant had a conversation with Mr Craddock about the replacement of the padlock is of no real consequence. I would add, however, that it would have been remarkable if there had been no discussion as to the circumstances in which Mr Craddock had come to place a padlock on the gate to someone else's property.
Senior counsel for the appellant also sought to attack his Honour's finding that the appellant and his companions had gone to the quarry at night in order to avoid detection, submitting, as I have said, that the finding was not open as the appellant's explanation that it occurred because he was delayed at the circus had not been challenged at trial. I do not accept that submission. It is unnecessary to consider the effect of what was said by the majority in Kuhl. The proposition that the appellant and his companions had gone at night to avoid detection was sufficiently put to the appellant in cross‑examination, and rejected by him on the ground that there was no such advantage in going at night. In the course of the appellant's cross-examination, the following exchange occurred:
You were just going out there for a look---Yes
At night time---No, we wasn't going out there - we were going out there during the daytime but I took longer at the circus, that's why we went out that night. We had already organised it.
Well, you agree with this that if you go out to a place like this that you don't have permission to go to, to take something from it, you go in darkness, there's less chance of you being seen---Why, when you got headlights on the ute and if there are people around they're going to see you because we're in pitch black (ts 98 ‑ 99).
His Honour was entitled to reject the appellant's explanation for the nocturnal trip to the quarry. It was inherently unlikely that no arrangement could have been made to go in a suitable vehicle in daylight hours, either on that day or another day, and the activity they were intending to embark upon was hardly one conveniently carried out in an unfamiliar location, by torch light, on a winter's night.
In any event, again I think this is simply a distraction. Whether the appellant went at night to avoid detection or because he had been delayed at the circus was not essential to his Honour's ultimate finding as to the appellant's state of belief as to his entitlement to take material from the quarry.
On the facts, it was clearly open to the primary judge to conclude, as he did, that the appellant did not have an honest belief that the owner of the material had relinquished or renounced ownership of the electrical wire, or indeed of any of the other material in the quarry.
It is not the case that, as submitted by the appellant, in finding the appellant did not have the requisite state of mind his Honour had regard to the collective knowledge and intent of the three men rather than that of the appellant alone. True it is that it was unnecessary for his Honour to make findings as to the state of mind of Mr Craddock or Mr Daly, but in circumstances where all three were involved in the enterprise together it is entirely understandable that his Honour should do so. That does not mean that his Honour lost sight of his task and had regard to some collective state of mind. It is plain that his Honour found that none of the appellant, Mr Craddock or Mr Daly held the requisite belief.
It is also clear that, contrary to the appellant's submission, his Honour understood that it was for the respondent to establish that the appellant did not have such a belief, not for the appellant to establish that he did. His Honour expressly directed himself to that effect at [69] and [83] and on a fair reading of his judgment there is nothing to suggest that he departed from it.
I am not persuaded that his Honour was in error in finding that the appellant did not have an honest belief that he was entitled to remove material from the quarry. Indeed, on the evidence it is not easy to see how his Honour could have arrived at any other finding.
I would dismiss this ground of appeal.

Ground 2

It was submitted on behalf of the appellant that in concluding that s 5(2)(b)(ii) of the Offenders (Legal Action) Act had no application, the primary judge had erred by taking too narrow a view of the relevant circumstances. The appellant's counsel submitted that the relevant circumstances were that 950 m of power line was unnecessarily left carrying 22,000 volts of electricity through a disused quarry which members of the public might enter for a number of reasons and in which they may come into contact with the electricity in the power lines and suffer injury.
In support of that submission, reference was made to a finding of the primary judge that the area in which the quarry was located was frequented from time to time by campers, bush walkers, bird watchers, four wheel drive enthusiasts and others [91]. It was argued that such persons, and even trespassers not involved in committing an indictable offence, were exposed to the danger of electric shock from, for instance, a power line breaking and hanging close to the ground, a power pole falling over or a power line coming into contact with a tree. It was further submitted that an inquisitive youth who might be in or about the transformer enclosure was exposed to the same risk as the appellant. Those circumstances were unrelated to the criminal conduct in which the appellant was involved and were common to persons not involved in criminal conduct.
That submission must be rejected. The appellant's injuries did not arise from circumstances in which he was exposed to electric shock by reason of the 950 m long power line running through the quarry. The power line was 5.5 m from the ground at its lowest point and for most of its length was some 7 m from the ground, strung between power poles approximately 100 m apart. It was, as the primary judge pointed out, a system used not only in rural areas but also still commonly used in the Perth metropolitan area. It did not itself expose anyone within its vicinity to a risk of injury, in the absence of some accident to, or failure of, the power line, and the appellant's injuries did not arise from some accident to, or failure of, the power line.
The appellant came into contact with the live wire only by gaining access to the enclosure and standing on top of the transformer. The appellant was able to do so only by a feat of considerable agility. The enclosure was intended to be, and ordinarily would have been, inaccessible to any person coming upon it. There was no legitimate reason for the appellant, or any other person who came upon the quarry, to enter the enclosure, much less to climb onto the top of the transformer. The appellant did so solely for the purpose of stealing wires hanging down above, or in the immediate vicinity of, the transformer.
The primary judge was correct to find that s 5(2)(b)(ii) of the Offenders (Legal Action) Act had no application. The appellant's injuries were not separate from but were directly related to the circumstances to which he was exposed by reason of being engaged in the commission of a criminal offence. The appellant's injuries were suffered in the course of the very act of attempting to steal the respondent's electrical wire. The

relevant circumstances were not circumstances to which persons not involved in criminal conduct were exposed.

This ground of appeal must fail.

Conclusion

I would dismiss the appeal.
MURPHY JA: I agree with Newnes JA.