Baiada Poultry Pty Ltd v The Queen

[2012] HCATrans 15

[2012] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M126 of 2011

B e t w e e n -

BAIADA POULTRY PTY LTD

Appellant

and

THE QUEEN

Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 FEBRUARY 2012, AT 10.17 AM

Copyright in the High Court of Australia

MR P.G. PRIEST, QC:   If the Court pleases, I appear with my learned friend, MR M.J. CROUCHER, SC, for the appellant.  (instructed by Norton Rose Australia)

MR D.A. TRAPNELL, SC:   May it please the Court, I appear with my learned friend, MS K. ARGIROPOULOS, for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ:   Yes, Mr Priest.

MR PRIEST:   If the Court pleases, each member of the court below was of the view that ground 4 in that court which went to practicability had been made out.  The difference in approach between Justice Nettle and the majority in the court however was, of course, that Justice Nettle held that the proviso could not be applied in the circumstances of the case, whereas the majority were of the view that it could.  Essentially, Justice Nettle held that the proviso could not be applied because there had been a failure properly to put Baiada’s secondary defence before the jury and in those circumstances, his Honour was of the view that the situation was not functionally dissimilar to a situation where there had been a denial of procedural fairness, and we would say his Honour of course was right to come to that view.

The other members of the court came to the view that the proviso could be applied, but, in our submission, they made a number of errors along the way, the first of those errors being, in our submission, that the majority took the view that the application of the proviso involved the exercise of discretion, and so much is plain, in our submission, from the words that they used. 

FRENCH CJ:   In what sense do you say they were using the word “discretion”?

MR PRIEST:   Your Honour, discretion, we would submit, in its ordinary ‑ ‑ ‑

FRENCH CJ:   In what sense was the court using it?  We know it is a slippery ‑ ‑ ‑

MR PRIEST:   Yes, of course, but generally when judges in criminal courts use the word “discretion” it suggests a choice between alternatives, all of which might be open, and it suggests, in our submission, a choice between alternatives.  The language that was used by the court was emblematic of that because they spoke of a discretion which they were capable of exercising.  We would submit that that demonstrates a fundamental error in the application of the proviso when one has regard to the statutory language of the proviso.

FRENCH CJ:   I am just wondering whether, having regard to the second sentence in 57 of what appears at 617 of the appeal book and what appears at paragraph 60, whether they were not using the word “discretion” in the evaluative sense – that may well be an inaccurate sense – of determining whether there has been a substantial miscarriage of justice.

MR PRIEST:   In our submission, no.  Could I go to paragraph 57, page 617:

The Court’s discretion to apply the proviso . . . can be exercised on appeal where the trial judge has failed to direct a jury on all the elements of an offence or has misdirected the jury in part.

That sentence, in our submission, does not admit of any other interpretation than that the court thought that they had a discretion whether to apply the proviso or not.

CRENNAN J:   Inasmuch as the majority of the Court of Appeal refer there to the elements of an offence, can I ask you whether in any other part of the judgment the majority of the Court of Appeal refer to the reasonably practical requirement in terms of a defence as distinct from the element of the offence?

MR PRIEST:   I believe not, your Honour.  Perhaps I should develop this a little further before I go back and try and answer your Honour the Chief Justice’s question.  There are a number of ways in which the majority erred.  The first is, as we have already identified, in our submission, they held that the application of the proviso involved the exercise of discretion.  The second matter we rely on, of course, is they relied on the jury’s verdict in coming to the view that there was no substantial miscarriage of justice in circumstances where, in our submission, they were not entitled to do so, the defence, if you like, not having been considered by the jury.  So in no respect has the jury’s verdict have bound up within it the notion that they had rejected the fact that Baiada could rely on independent contractors.

The third reason we submit for rejection of what the majority concluded flows from paragraph 63 of their judgment, which I will come back to in a moment, but which involves a series of propositions, some of which are plainly wrong.  The fourth reason I have already touched on perhaps.  At paragraph 59 of their judgment at page 618 they said, the third sentence:

It is not irrelevant that, although the direction on the reasonable practicability requirement was inadequate, that element was not altogether ignored by his Honour, who re‑directed the jury at the request of defence counsel in the terms set out by Nettle JA.

In our submission, it was wholly irrelevant because all that was done was to repeat a bare argument of counsel.  It was not put in any way as a proposition of law with the imprimatur of the judge’s office behind it.  Fifthly, of course, it is not, we would submit, that this is situation which is not functionally dissimilar from a denial of procedural fairness, so the proviso is inapplicable.

GUMMOW J:   Do you challenge the first sentence of paragraph 57 of the Court of Appeal majority at 617?

MR PRIEST:   Yes.

GUMMOW J:   Whatever they meant by:

discretion . . . can be exercised on appeal where the trial judge has failed to direct a jury on all the elements of an offence –

or hear the elements of a defence.

MR PRIEST:   Yes.  Well, it is a mixture of both, your Honour.  In our submission, what the majority has ‑ ‑ ‑

GUMMOW J:   Do those cases in footnote 23 support that proposition?

MR PRIEST:   In our submission, no, because what the court has done is this.  They have failed to draw a distinction between the required steps, those steps that are required by the language of the statute itself.  The first step, in our submission, based on the language of the statute, is to determine whether or not – and probably only the second and third limbs would be applicable here – whether or not there was a wrong decision on a question of law or whether there was a miscarriage of justice and we would submit if a trial judge has failed properly to expose the defence to the jury, on any view it has got to be a miscarriage of justice.  So that is step one.  Step two requires the court to then determine whether or not there has been a substantial miscarriage of justice and it is at that point, in our submission, that value judgments might intrude, but in determining whether or not there is a substantial miscarriage of justice, the court is not exercising a discretion.

GUMMOW J:   It is exercising a power.

MR PRIEST:   Making a value judgment perhaps about whether in the circumstances the particular defect in the trial, if I can use that expression, constitutes a substantial miscarriage of justice.  Once that value judgment is made, then there is no question of discretion.  Either there is a substantial miscarriage of justice or there is not.  If there is a substantial miscarriage of justice, the appeal, with respect, has to be allowed and it is only if it is shown there is no substantial carriage of justice that the appeal can be dismissed. 

So taking what the majority has said overall and reading it in context and, in particular, the introductory sentence of paragraph 57, in our submission, one can discern that the majority have confused what it is or the way in which they ought to approach the proviso and, in effect, have run together two different steps.  So assuming for the sake of argument that that proposition is accepted by this Court, really the question may turn on whether or not in the circumstances of this case, whether the majority have approached it wrongly or not, whether it could be said that there was a substantial miscarriage of justice or, more to the point, it could be said that there was no substantial miscarriage of justice.

We had not really turned much to the way in which the trial unfolded either in our written submissions or in the summary of propositions, but we have noticed that it has been said against us that there was no evidence really to support what was said to be the defence.  Of course, we rely on what Justice Nettle found, that there was a denial here, but it might be worthwhile just taking the Court in short form ‑ ‑ ‑

FRENCH CJ:   Just before you do, can I just ask in relation to paragraph 60, if paragraph 60 is correct as a proposition, would you accept that the proviso would apply?

MR PRIEST:   No, your Honour.

FRENCH CJ:   You will take us to argument ‑ ‑ ‑

MR PRIEST:   Because there are some cases where the departure from the notions of ‑ ‑ ‑

FRENCH CJ:   You say this is a fundamental sort of departure?

MR PRIEST:   If it is not fundamental, it is pretty close to it, your Honour.

CRENNAN J:   Are you saying you do not get to ask that question?

MR PRIEST:   No.  There were only two defences at trial.  One went to the question of control and the other one went to this question of practicability.  The second defence was very important to the appellant, particularly for this reason.  The jury’s verdict must have been founded on a right to control, it must have been.  There was no evidence of actual control in this case.  So the jury’s verdict must have been founded on a right to control and, indeed, so much seems to have been the conclusion of the majority when they say at 616 of the appeal book, second sentence of paragraph 55, talking about what the Crown had to prove:

First, it had to prove beyond reasonable doubt that the applicant had a right of control in respect of the loading and unloading –

and so on.  So this case must have – and the jury’s verdict must have been based on a right to control.  Once the jury came to the conclusion that this was a case that involved a right to control, it was a very short step to conviction if the secondary defence was not properly put to the jury and that is because the whole of the defence then revolved around the notion that the element of practicability in this case was made out – or the defence was made out on the basis that Baiada was entitled to rely on its independent contractors.  You see, once the jury came to the conclusion, well, yes, they had a right to control but they did not give any directions, well, it is conviction time without the judge properly directing the jury on the secondary defence.

Perhaps minds might differ on this, although perhaps it might not be said to be fundamental, it was very close to it because it was, as we say, once the jury came to the conclusion there was a right to control, then that was the end of the case for the accused without there being a proper direction on the possible reliance on independent contractors.  So it was right at the nub of the case.  There was some criticism, as we followed it, of a fact that the defence, if you like, was raised late in the trial. Well, it does not matter when it was raised, the question is whether it was open and, in our submission, of course it was. 

Can I just take the Court very briefly – and frankly I had not intended to do this but having read the respondent’s summary of propositions perhaps I ought – can I take the Court very briefly, first of all, to appeal book 511 and line 7.  This is the defence address and the Court will see line 7 and following and perhaps, in particular, line 26:

Baiada was entitled to rely on competent and experienced sub-contractors in order to carry out the work that they could not do themselves.  That’s what they did.  They had experienced truckies, and you’ve heard from Mr Takitimu –

he was a driver –

that Mr Azzopardi –

he was the deceased –

was experienced, one of the best, I think he described him as, and we know that there were experienced chicken catchers.

And it goes on.  Then later at 517, still in the course of the address, the best example is probably from line 25 following:

And we say again, a person is entitled to hire a subcontractor to do the job that they can’t otherwise do, and they’re entitled to rely upon the expertise and the experience of the person whom they hire as a subcontractor.

So it was raised fairly and squarely as part of the defence address and, as we say, it goes both to an element of the offence which the Crown had to disprove and the establishment of a defence and the judge simply did not direct on it, just did not direct on it.  Can I take the Court, to demonstrate this, to 521h.  I think there are some pages added to the appeal book.  His Honour set out the particulars on that page from about line 8 and this is in the context of spelling out for the court what the elements of the offence were.  He had started that at the previous page at line 10.  He turned, at line 27 on that page, to the element of reasonably practicable.  His directions on that continue from line 27 on that page over the page down to, I think, about line 18 or thereabouts.  At 521k, at line 15, he said:

I want now to say something more about what is reasonably practicable.  The questions of safety of reasonable practicability in many cases really raise issues of commonsense rather than any special knowledge.

That direction continues on over to the balance of the next page and over to the first line of page 521m. Nowhere does his Honour direct the jury that, as a matter of law, Baiada was entitled to rely on independent contractors in order to satisfy its duties under section 21 of the Occupational Health and Safety Act.  It may have been, of course, and we do not necessarily agree that this is so, but it may have been that had his Honour laid it out properly for the jury, they may factually have dismissed it.  We do not know because the defence was never properly laid out for them.  The closest that his Honour got was when he repeated the defence arguments, and you will find those at – before I do that, there was an exception taken first of all – and I am not sure why the appeal book is out of sequence, but page 556, there were five exceptions taken on that page, line 12:

The third is, your Honour, I don’t know that Your Honour has told them at any point yet that Baiada was entitled to rely on expert and experienced independent contractors.

The Court will see over the page at 557 at line 3 his Honour said:

I don’t propose to redirect on the other matters.

He would redirect on a small factual matter.  So the exception was taken.  Taking the Court back then to 542 ‑ ‑ ‑

FRENCH CJ: The question relevant to the statute was whether reliance on your independent contractor was a reasonably practicable step for the purposes of section 20.

MR PRIEST:   Yes.

FRENCH CJ:   How does it fit to the statute precisely?

MR PRIEST: Yes, well, your Honour, the elements of the offence are spelt out in section 21 of the Occupational Health and Safety Act. Section 21(1) contains the general duty and the Court will see:

An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

So that is the general duty.  Subsection (2) then spells out specific ways in which that general duty can be breached:

Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following –

(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risk to health –

The concept of practicability is picked up in the preceding section, section 20, and subsection (2):

To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable ‑

and there are a number of things enumerated.  So we, your Honours, took the appropriate exception.  His Honour refused to redirect, but then the jury asked a question.  So at 541 the jury have retired.  We took the exception, which is set out later in the appeal book and which I have taken you to, and then after the jury have retired they came back with a question which is to be found at 542, and the question is set out at 542, line 6:

“Could you please confirm what we need to do regarding the particulars and what needs to be unanimous to make a decision”.

At line 10 his Honour said:

The second thing, this case is really about the issue of whether Baiada had control over the independent contractor, and particularly Poultech.

I might add, this passage is extracted in the judgment of Justice Nettle at paragraph 45 at appeal book 613:

The Crown says it did, real or actual, the defence says there is no evidence that it did.  And that in terms of whether it was reasonably practicable to do so it relied upon an expert independent contractor.

That is it.  That is as close as his Honour got.

HEYDON J:   His Honour had referred to this subject a little earlier, I think.  As you pointed out a moment ago, the pagination is confusing.  We were on page 619 of the transcript.  If we go to page 613 of the transcript, which is 562 of volume 2 of the appeal book, we see an address by Mr Armstrong in which he says reliance on independent contractors:

can only be relevant to the question of what was reasonable for an employer to do in the circumstances . . . It hasn’t been an issue in this case ‑ ‑ ‑

MR PRIEST:   I am grateful to your Honour for taking us back to that.

HEYDON J:   The proviso is often employed where there has been some accidental slip.  Without in any way being critical, this was not an accidental slip.  Both the prosecution and his Honour seem to have treated them as being only one defence of control, not two.

MR PRIEST:   Yes.  Whilst the Court has got 562 open, can I take the Court to 561, line 1, it suggests that that is Mr Armstrong talking and indeed that was me.  If you go down the page, line 18, we made the submission:

Your Honour will of course recall one of our exceptions is that Your Honour should also tell them –

that is the jury –

that somebody in the position of Baiada, if they’re found to have control or a right to control are entitled to rely on their experience and expertise of their independent contractors.

HIS HONOUR:   Is that correct?

MR PRIEST:   In our submission, yes.

HIS HONOUR:   Don’t the authorities suggest . . . 

MR PRIEST: Yes, but you can exercise or perform your duties pursuant to s.21, a practical –

“practicable” was the word I used –

method may be by relying on the experience of their independent contractors.

This further exception comes from the jury question which is at page 542.  So there were two attempts to get his Honour to direct on it.

HEYDON J:   I do not quite follow that.  The jury question at 542 is at page 619; 619 happened before 613 and 614?

MR PRIEST:   619 happened after.

HEYDON J:   After.

MR PRIEST:   Yes.  That is why the setting out of the appeal book is confusing.  There was an exception immediately – five exceptions immediately after the jury retired.  What then happened was that the jury came back and asked a question and that question is set out at 542.  Wrongly, it is said that that is the charge.  These further directions are actually a redirection.  It is not really the charge.  It is a redirection.  My learned junior wants me to point out, your Honours, that at the bottom of 560 the question is set out and then there is the discussion of the further exception.  All that the judge did after that second exception was simply repeat one of our arguments, and that is at 542 lines 15 to 16.  Mr Croucher points out, correctly, that we explained at 565 why it was necessary for his Honour to give them further directions about it.  Line 5:

Right.  If they fail to be satisfied beyond reasonable doubt that there was the right to control, then that’s the end of the case for the prosecution – simple.  If, however, they found beyond reasonable doubt that there was a right to control and we say that it is not open for them to do so, but assuming that they did, then the next question is whether there was then a failure to provide plant or systems of work that were, so far as reasonably practicable safe and without risk to health.  Because the control is an antecedent step to deciding whether or not there was a failure to provide plants systems at work that were safe and without risk to health.  It is then that they have to look at whether or not Baiada was entitled to rely on the expertise of its independent contractors.

It was laid out for his Honour but his Honour rejected ‑ ‑ ‑

HEYDON J:   You say it again at 26 to 27?

MR PRIEST:   Yes, your Honour.  We specifically addressed on their capacity, their ability to rely on their independent contractor.  All his Honour says about it is to be found at 542 where his Honour simply repeats what one of our arguments was, which was ‑ ‑ ‑

FRENCH CJ:   The way the error is characterised by Justice Nettle at 613 – again, I am just trying to understand how this fits in with the words of the statute, paragraph 44:

Baiada has legitimate cause for complaint about the judge’s failure to direct the jury that they could not convict Baiada of failing to do what was reasonably practicable to provide and maintain . . . unless they were satisfied –

et cetera.  How does that fit in with the obligation to provide so far as is reasonably practicable?  Does that not suggest something a little more?

MR PRIEST:   Your Honours, because the workplace and workplaces vary so much, what might be reasonably practicable in one workplace might not be in another.

FRENCH CJ:   The question is, you appoint an expert independent contractor, an expert in the relevant field, and that is a practical thing to do.  Does that answer the question whether you have gone as far as is reasonably practicable if you appoint such a person and do not give them directions?  I am just trying to see how this defence fits into the statute.

MR PRIEST:   You cannot answer the question in a vacuum.  Every case of course must depend on its own particular facts.  Here, by and large, we are talking about a somewhat unskilled occupation.  Baiada itself processes chickens.  It does not have the capacity to transport them, it does not have the capacity to catch them, so the system of work here was that Baiada had its own trailers onto which it would load, at its Laverton plant with its own direct employees using a forklift, empty modules.  The truck drivers – and Mr Azzopardi was an experienced truck driver, some 15 years experience – would come along to the Laverton North plant, hook up their prime mover to the trailer ‑ ‑ ‑

FRENCH CJ:   I know about the facts.  I am just trying to fit this ‑ ‑ ‑

MR PRIEST:   Perhaps it is important to understand a little about the facts, because ‑ ‑ ‑

FRENCH CJ:   We are familiar with them.

MR PRIEST:   The fact of the matter is Baiada did not have their own drivers, did not have their own chicken catchers and, to that extent, relied on truck drivers and chicken catchers to carry out those tasks.

FRENCH CJ:   Can I just take you back to the words at 21(2)(a).  You are saying that the judge should have told the jury – although you did not frame it in that way before his Honour – that the appointment of an experienced forklift company and experienced trucking company to do the catching, collecting and transport of these chickens in the circumstances answers the description of providing systems of work that are:

so far as is reasonably practicable, safe and without risks to health.

MR PRIEST:   May have, depending on the jury that the ‑ ‑ ‑

FRENCH CJ:   But that is the logic of the defence, is it not?

MR PRIEST:   Yes, and, to that extent, the question of practicability is something that the Crown needs to disprove beyond reasonable doubt, that is, the Crown needed a trial to demonstrate to the jury or to prove to the jury beyond reasonable doubt that reliance on independent contractors was not a practicable method of ensuring Baiada’s duties to its extended employees, because these were extended employees.  So to that extent, it was an element that the Crown had to disprove beyond reasonable doubt, but the other side of that coin was because Baiada placed distinct reliance on recourse to independent contractors, it was also the nub of their second defence.

HAYNE J:   I come at the problem in this way.  Once the question of right to control was concluded against Baiada, it followed, did it not, that it was practicable for Baiada to give directions to its subcontractors about the way in which the subcontractors set about their work.  Is that right?

MR PRIEST:   That has to follow.

HAYNE J:   Does the defence or element of the offence – and let us leave aside for the moment which is the better characterisation – upon which you seek to fasten turn upon the content that is given to the word “reasonably”?

MR PRIEST:   I would like to be able to answer the question with a simple yes or no, but one cannot for this reason, because ‑ ‑ ‑

HAYNE J:   Reasonably assessed in accordance with 20(2), but ultimately as a jury question.

MR PRIEST:   As a jury question.  One of the steps in your Honour’s analysis is that Baiada had a right to give the directions.  That does not mean that if they fail to give the directions they breach the section because it may still have been practicable for them to rely on their independent contractors.  So the failure to give directions might be an argument that the prosecution could mount which might find favour with the jury so far as practicability is concerned, but it is still a jury question.  The jury may still have come to the view, or at least not be satisfied beyond reasonable doubt about it, and, to that extent, the jury – and it was denied the opportunity of dealing with that defence and, more to the point, Baiada was denied the opportunity of having the jury consider the defence. 

So one of the ramifications of that is that when the majority then take the jury’s verdict into account, they do it really in a factual vacuum because the jury has not considered that aspect of the defence or, indeed, that element of the offence.  So, in our submission, in that circumstance it really was not open to the majority to have regard to the jury verdict because the jury verdict was missing something that we say the jury ought to have been entitled to consider.  Can I turn then to some of the remarks of ‑ ‑ ‑

CRENNAN J:   Is that tantamount to saying that the distinction made in paragraph 62 at 619 made by the majority in the Court of Appeal between situations involving safety and practicability which might involve specialist skill and those which do not?

MR PRIEST:   The majority seem to think that necessarily there was a difference between those tasks that involved specialist skill and others.  That is not necessarily right, in our submission.  It might be that you can discharge your duties through the use of independent contractors whether they have a particularly specialised skill or not.  But, of course, they did not identify really what they were talking about and there are a number of things that became blurred because the chicken catchers had a process and what the members of the majority or any member of the court did not do was split up the process or look at it as a whole.

This is why, to some extent, I wanted to just remind the Court of the factual matrix because the evidence was that when the truck drivers took the trailer with the modules to the farms – the chicken catchers were a peripatetic group that would travel from one farm to another.  They were not just employed by Baiada.  The evidence was that they worked at other farms other than the Houben farm and for other companies.  They would drive their own truck to the particular farm with their own forklift on it, use their own forklift to take down the modules off the truck, lay them out in the sheds prior to catching the chickens and catch the chickens, fill the modules and then reload the truck.  So that there was a whole process involved that Baiada was incapable of carrying out for itself.  The important aspect here was forklift management and control. 

CRENNAN J:   Does it matter in that context that it seems to have been notorious that modules fell off from time to time.

MR PRIEST:   But the point is, if one is in the position of Baiada and one hires chicken catchers with their own forklifts, it matters not what you do at your own plant so long as you have hired competent people, one would think, who could use their equipment competently and, to that extent, in our submission, Baiada was entitled to rely on these people to ‑ ‑ ‑

FRENCH CJ:   The question is not whether the appointment of an independent expert contractor was a reasonably practicable thing to do.  The question was whether or not it amounted to the provision so far as is reasonably practicable of a safe system of work.

MR PRIEST:   Your Honour, there were some things that – and again, it is necessary to see how the Crown case was constructed.  It was constructed on three tiers only, three tiers only, and the first was the heads of agreement, exhibit B, between Azzopardi Haulage and Baiada.  The second were the heads of agreement between DMP Poultech and Baiada and the third was what was said to be a direction given by Baiada, or a safety reminder more to the point, given by Baiada after the accident.  The trouble with the safety reminder is that it really related to the Laverton plant and what seems to have been ignored is the fact that DMP Poultech had their own instructions about forklift safety.  That is something that does not seem to have cracked much of a mention, in our submission. 

By way of example, there were two or three of these tendered, but if one goes to appeal book 335, you see an example of workplace procedures that DMP Poultech had in place.  I should add for the sake of completeness that there was one witness who suggested that these documents were handed out after the accident, but the burden of most of the evidence was that these procedures were already in place.  You will see that a number of the aspects of this procedure deal with forklift safety.  The fourth or fifth is:

At no time should you move into the path of a moving forklift.

Jumping down two or three from there:

When working on a pallet, keep away from the loading side of the pallet.

We know that Mr Azzopardi was on the loading side.  Over the page, top of the page:

Workers must stay clear of pallets being picked up by the forklift.

The second last on that page:

Stay clear of the semi trailer while it is being loaded and when the straps are being thrown over.

And of course this document was signed by Aaron Slocombe, Aussie Slocombe, one of the chicken catchers, 4 April ‑ ‑ ‑

FRENCH CJ:   The man who went off and left the 16-year-old with the ‑ ‑ ‑

MR PRIEST:   Well, he did, but that is something that Mr Slocombe took upon himself.  The fact of the matter is that there were procedures in place for forklift safety.  So if you are in Baiada’s situation, you cannot look over the shoulder of your independent contractors the whole time when there are various farms from which you obtain chickens and so on.  You have got to rely on the independent contractors and rely on them to do their job properly and, really, that was what the secondary defence was all about and that was a jury question, in our submission, but it was a jury question which was never decided because it was never given to them.  Now, I should say a little more about what the majority said.  Can I take the Court to 619, paragraph 63 and the second sentence:

Neither DMP nor Azzopardi Haulage had specialist expertise in relation to the loading or unloading of modules which the applicant lacked.

So much is true, I suppose, but they certainly had specialist expertise in relation to the loading or unloading of modules –

The risk that a truck driver might be seriously injured or even killed while a forklift was being used to load or unload trucks and the need to take precautions to prevent forklift accidents was obvious.  The measures necessary to do so were well known to the applicant and throughout the industry.

They were well known to DMP Poultech and there were, indeed, the workplace procedures in place to address that –

They were common sense measures which did not require specialist skill or knowledge.  The applicant had entered into separate arrangements with the two contractors to undertake tasks in which their employees would be working in close proximity with one another at Houben Farm without giving the contractors any safety directions in relation to the performance of those tasks.

With respect, that looks at the facts in a vacuum and does not refer at all to the workplace procedures that we have just taken the Court to DMP Poultech had –

It was reasonably practicable for the applicant to give such directions to ensure the safety of all employees engaged on those tasks.

That sentence, of course, probably goes to the question of control not really to – that probably goes to the right to control, not to actual control or to practicability.  Next sentence –

The applicant had control over when and how the loading and unloading of modules was performed at Houben Farm –

Where that came from is anybody’s guess because that just is not the evidence.  So, insofar as their Honours have used that reasoning or that piece of evidence in aid of their reasoning, they are just wrong –

and had had already issued safety instructions in relation to loading and unloading operations at its own plant.

That is true.  It had issued safety instructions in relation to its own plant but at its own plant it had its own direct employees both loading the empty modules before they were taken out to the farms and unloading the full modules when they returned.  Their Honours then go on to say that:

Taken as a whole, the evidence has satisfied us beyond reasonable doubt –

As we say, your Honours, they took into account in their analysis the fact that the jury had returned its verdict but did not take into account that it was barren of an important consideration that was the consideration of the defence.  I just want to take the Court to one last passage whilst I have got the majority judgment open.  At 618, paragraph 59:

The jury held that the applicant was guilty of an offence under s 21(1) of the Act. This is a factor which may be taken into account in deciding whether a substantial miscarriage of justice has occurred.

Weiss is cited –

It is not irrelevant that, although the direction on the reasonable practicability requirement was inadequate, that element was not altogether ignored by his Honour, who re-directed the jury at the request of defence counsel in the terms set out by Nettle JA.

With the greatest of respect, it was wholly irrelevant, wholly irrelevant.  All the judge did at the passage referred to is repeat our arguments without either approbation or reprobation and not as a matter of law.

HEYDON J:   It is incorrect to say we directed the jury at the request of defence counsel.

MR PRIEST:   That is true, your Honour.  It was as part of a jury in answer to the jury question.  Might I just take the Court to one authority before I complete what I want to say.  It is one that our friends have placed reliance upon, Cesan v The Queen 236 CLR 358, a decision, of course, of this Court constituted by your Honour the Chief Justice, your Honours Justices Gummow, Hayne, Heydon, Crennan and Kiefel. This was the notorious case of the judge falling asleep during the course of trial. I want to take the Court, if I may, immediately to what your Honours Justice Hayne, Justice Crennan and Justice Kiefel said at page 393 of the report starting at paragraph 123 under the heading, “The proviso”:

In Weiss v The Queen, the Court said that it was neither right nor useful to attempt to lay down absolute rules or singular tests to govern the application of the proviso beyond three fundamental propositions.  First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred.  Secondly, that task is an objective task which is not materially different from other appellate tasks.  Thirdly, the standard of proof is the criminal standard.  The Court rejected the use of expressions, like loss of a real chance of acquittal, as substitutes for the statutory language.  Rather, the Court held that no single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given.

The Court further held in Weiss that a necessary, but not always sufficient, step to the application of the proviso is that the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict –

We say, interpolating, your Honours, that this was not a sufficient step in this case.  Taking up the reading –

But the conclusion that guilt of the accused was proved to that standard does not, in every case, suffice to show that there was no substantial miscarriage of justice.

And an example is given.  At paragraph 25 it is said:

In Wilde v The Queen, reference was made to the possibility that some errors occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso.

Interrupting the reading here, we would say one of the presuppositions of a criminal trial properly conducted is that the elements of the offence are properly explained to the jury and, more to the point, that any defence which is open is properly exposed for the jury’s consideration.  Taking up the reading again, perhaps at paragraph 126:

But just as the application of the proviso is not to be determined by deduction from expressions which attempt to describe the operation of the statutory language in other words, what was said in Wilde is not to be taken as if it were a judicially determined exception grafted upon the otherwise general words of the relevant statute.  And the application of the proviso is not to be determined according only to whether the form of expression used in Wilde, or some other conclusive statement, appears to be an apt description of the course of the trial.  Rather, it is necessary to have regard to the miscarriage of justice that has been identified.

We rely on paragraphs 127 and 128 over the page and at 129:

In many cases where the proviso is to be considered, the fact that the jury returned a guilty verdict will indicate rejection of any explanation proffered by the accused in evidence.

Here, at the risk of repeating ourselves, the jury verdict cannot be seen to be a rejection of the defence that it was sought to proffer because it was not put to the jury for its consideration.  Can I also take the Court to what your Honour the Chief Justice said in that case at page 383 of the report, paragraph 79?

Weiss is authority for the proposition that the question whether an appellant may have lost a fair chance of acquittal is one to be considered under the proviso.  It is not a necessary condition of the conclusion that there has been a “miscarriage of justice” as that term is used in “the dragnet ground” in s 6(1).  Observations about the necessity of such a condition have been made in earlier cases and must be seen in the light of the approach taken by the whole Court in Weiss.

At 81:

Weiss involved the admission of irrelevant but prejudicial evidence . . . There may be cases, nevertheless, in which there is a process failure of such significance that, whatever the apparent weight of the evidence against the accused person, it cannot be said that there has not been a substantial miscarriage of justice.  That may be because the process failure had deprived the appeal court of the capacity to assess whether the appellant may have lost a fair chance of an acquittal.  That proposition is supported by dicta in Simic v The Queen.

We would submit, your Honours, there has been a process failure here.  So to summarise, in our submission, the majority of the court below approached the proviso in a fundamentally flawed way, that is, they took it that there was a discretion whether to exercise the proviso or not.  We submit that is wrong for the reasons that we have endeavoured to adumbrate.  Secondly, the Court relied on the jury verdict in order to apply the proviso in circumstances where the jury’s verdict did not have as one of its components a rejection of the appellant’s secondary defence.  Thirdly, in our submission, the Court made some findings which factually were not open and which must have infected their reasoning. 

Fourthly, they said it was not irrelevant that there had been a redirection at the request of defence counsel.  Well, with respect, it was wholly irrelevant, it was not at the request of defence counsel and it did not have the imprimatur of the judge as a matter of law and, fifthly, in our submission, this is a situation which, as his Honour Justice Nettle said, is not functionally dissimilar from a case where there has a been a denial of procedural fairness.  For those reasons, in our submission, what was said by

the majority ought be rejected, the appeal to this Court ought be allowed and a retrial ordered.  If the Court pleases.

HEYDON J:   Can I just ask you this question.  Independent contractors are independent.  In some circumstances if someone in the position of Baiada began issuing instructions to independent contractors, the relevant officers might get the answer, “We know our business, do not tell us what to do.”  Was there any evidence as to what might have happened here if there had been directions – instructions?

MR PRIEST:   No.  Well, this is not a direct answer to your Honour’s question, but there was evidence from the chicken catchers that they took their directions from the employer, Poultech, but that is not to answer your Honour’s question directly.  If the Court pleases.

FRENCH CJ:   Sorry, Mr Priest, just one other matter, I think it is clear enough, but just to be beyond doubt.  Your argument does not critically depend upon a finding that the majority thought they were exercising a discretion in the sense of a choice?

MR PRIEST:   No.

FRENCH CJ:   Because you say, in any event, the matter, the defect or the deficiency could not be overcome by application of the proviso.

MR PRIEST:   That is it, yes.

GUMMOW J:   If I can just take that up a bit further.  You say the proviso, I think, that when it is says “may” what it means is that it is a power coupled with a duty to exercise it if the court considers that no substantial miscarriage of justice has actually occurred.

MR PRIEST:   Yes.

GUMMOW J:   Not a discretion in some loose sense.

MR PRIEST:   No.  Once no substantial miscarriage of justice is found, there is only one alternative.

GUMMOW J:   Yes.

MR PRIEST:   If the Court pleases.

FRENCH CJ:   Yes, Mr Trapnell.

MR TRAPNELL:   If I can deal with the questions which in our outline we say are raised by this appeal being the use of the expression “discretion”, the Court placing or at least referring to the relevance of the jury’s verdict and then, finally, whether this was a case appropriate otherwise to the application of the proviso.  With regards to the use by the majority in the court below of the word “discretion”, it is clear, in our submission, that “discretion” has a number of meanings in the law.  There is the strict sense of that word in the House v The King sense, but there is a much broader sense in which it is used to connote a circumstance where:

assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right –

That is a quotation from the judgment of Justices Mason and Deane in this Court in Norbis v Norbis (1986) 161 CLR 513 at page 518, a judgment on which Justice Brennan agreed.

GUMMOW J:   It is taken up more recently, is it not, in Dwyer v Calco Timbers 234 CLR 124 at 138 to 139?

MR TRAPNELL:   Yes, that is so, and I think that is also referred to in the – maybe it is not referred to in the court below, but that is correct, your Honour.  It is also referred to in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission 203 CLR 194 at 204, and that is in the judgment of Chief Justice Gleeson and Justices Gaudron and Hayne. So there is a clear understanding, in our submission, the law of discretion, as Chief Justice Spigelman said in DAO’s – actually it was Justice Howe in DAO’s Case – having this imprecise definition in the law and, indeed, of course, as our learned friends have pointed out in their submissions at paragraph 6.11, they refer to a number of places in cases decided in this Court where the word “discretion” is used in the context of the application of proviso.

So, in my submission, this Court ought not to draw the conclusion against the majority in the court below that they were using the word “discretion” in a sense which meant anything other than that the question whether there was a substantial miscarriage of justice and whether it actually occurred was anything other than them exercising a judgment about which reasonable minds might differ as opposed to exercising some sort of House v The King discretion.  Indeed, when you look at the ‑ ‑ ‑

GUMMOW J:   Well, that rather collapses the terms of 568, does it not?  The word is “if”, if something is so, the court may do something.  Is that not right?

MR TRAPNELL:   I am sorry, your Honour, 568?

GUMMOW J:   The relevant terms talk about if a certain thing is found, the court may do something.

MR TRAPNELL:   Yes.

GUMMOW J:   So “if” is a condition which is a precondition to the exercise of the power, is that not right?

MR TRAPNELL:   Well, the power is exercisable in relation – so far as the proviso is concerned, it is exercisable in circumstances where value judgments need to be made about which reasonable minds might differ and therefore the prerequisites for the exercise of the proviso involve those value judgments, and that is the context – in my submission, has not been demonstrated otherwise, then that is the sense in which the court is using the word.  Now, to then say, well, there is an error of law because they might have been using it in a different way, in my submission, is not correct because there are two ways it could be used and there is nothing to indicate that they are using it in a way that indicates error and, indeed, when you look at the process that the majority went through, they go through the Weiss process.  They consider the whole record, they ask the right questions and they come to a conclusion about that.  In my submission their reasoning process, as evident from their reasons for judgment, is not indicative of them exercising a House v The King discretion.

If I can turn to the relevance of the jury verdict, it is quite clear obviously from a number of cases such as Weiss and Libke and Evans and Cesan, which are referred to in our outline, that this Court has said that the jury’s verdict of guilty is a factor which may – and that is what the majority in the court below said – may be taken into account in deciding whether a substantial miscarriage of justice has occurred.  However, that is all they say about that.  They do not in any way, in our submission, place any reliance or weight on the fact that the jury has brought in a verdict of guilty.  They have made a statement which, once again, does not constitute an error of law, it is a correct statement of law, and what then really it boils down to is ‑ ‑ ‑

HAYNE J:   But on this construction of their Honours’ reasoning, this statement is simply left hanging there, is it?

MR TRAPNELL:   They are making a statement which is in Weiss and a number of other cases in this Court.  They say it may, they do not say it will or should or must.  In fact, Weiss says it must, they say may.  They do not indicate that they have given it any weight at all.  They do not make any further reference to it.  So, in our submission, once again, in order for this Court to find that by saying that the majority in the court below has – that is indicative of error, in my submission, that is not right at all.  It is simply not evident from the rest of their reasons that they have given any weight at all to the jury’s verdict.  But, in any event, it is submitted that some weight could be given to that verdict in light of the fact that this point did not stand alone.  It is not simply the redirection that my learned friend complains of.  His Honour in passages which are referred to at paragraph 2.2 in the outline of oral argument, my learned friend has taken the Court to most of those passages ‑ ‑ ‑

HAYNE J:   What does the jury’s verdict of guilt tell the appellate court that is relevant to the application of the proviso in this case?

MR TRAPNELL: In this case they were directed that it was an element of the charges that they had to be satisfied that the reasonable practicability requirement was fulfilled and so the verdict of guilty shows that they were satisfied that reasonable practicable steps had not been taken and, indeed, they were taken. It was read out to them – section 20 of the Occupational Health and Safety Act was read out verbatim to the jury on the question of what reasonable practicability involved.

HAYNE J:   But you accept in this Court, do you not, that the trial judge should have but did not tell the jury that Baiada answered the case against it by saying that it had done enough by employing competent subcontractors?

MR TRAPNELL:   Yes, I do accept that.

HAYNE J:   And that the judge should have directed the jury about what principles of law they were to apply, that is, what the statute required them to determine in determining the significance of that answer.

MR TRAPNELL:   He did direct them about what was involved in the concept of reasonable practicability which that reliance upon contractors is part of.  So they had part of what was required, but not all of it, and that is accepted because we accept there was a misdirection.  The question is what flowed from that misdirection, and that really brings me to the third aspect of the appeal which is that in order to determine whether a misdirection as to an element is such as to constitute an error of a fundamental kind which would mean the proviso cannot be relied upon, depends to a large extent as to how significant that issue was in the trial and this is, in our submission, where the crux of this is.  This was very much a peripheral issue about which there was no evidence upon which a jury, even if it had been properly instructed, could have drawn any conclusion other than that one against the appellant. 

If one goes to the closing address of my learned friend, that is at appeal book 508 to 509, my learned friend very much nailed his colours to the mast on the control element of the trial.  At page 508 of the appeal book, line 28:

I’m going to go back to where I started when I first got to my feet and addressed you.  You might have thought at different times, particularly early in the case, I’d lost my voice because I didn’t get up and ask any questions, the reason being the issue in this case is very simple.  As I said to you at the start, it’s a question of control.

The other elements of the offence, alleged offence on Count 1, yes, theoretically you do have to be satisfied beyond reasonable doubt about them, but, really, before you could convict, but, really, the only issue upon which I want address you and which, in our submission, is important to you is this issue of control.  Who had control over the matters that are referred to in the Crown’s allegations, the prosecution’s allegations?  The allegations of course are those that are contained in the Particulars of Offence. 

We call this a presentment, it’s some of the quaint language that is sometimes used, and you will see that the particulars, in one way or another, are all concerned, you might think, with forklift control – forklift management and control.  So that’s really what this case is about, you might think.  It’s about who had control over that particular matter, the matter of the operation of the forklift.  Well let’s have a look at who the possible culprits are.  Was it the Houbens?  It was their farm, their sheds, their facilities.  Well no, nobody says it was the Houbens.  They were there or at least Ms Houben was supposed to be there, according to the contract.  But nobody says it was the Houbens.

According to her, and you will remember her evidence, Baiada sub-contracted the trucking of the chickens to others and the catching and loading of chickens to others.  There doesn’t seem to be much dispute about that.  According to Ms Houben, a Mr Chan would sometimes come out to the farm, for what purpose; to check on the welfare of the chickens?  Did it have anything to do with control of the forklift, control of the loading or the unloading or anything else; no. 

So just to interrupt there, Baiada are not coming out to check on the loading or unloading of forklifts.  They are not coming out to check to see that this independent contractor is putting in place any safety provisions at all in relation to loading or unloading.  Going back to the closing address –

Her evidence is it was to do with the welfare of the chickens.  She’s not a person, you might think, who has got an axe to grind in all this.  It was to do with the welfare of the chickens.

Remember her evidence too, that after the incident who put up the cones, the witches hats, that was Poultech.  Now, we know, don’t we, that the operation there continued after 5 December.  Did Mr Clayton, the experienced investigator, having carried –

“out” it should be –

his investigations, then give –

and he talks then about who was given the prohibition notice.  This is at line 25 –

Well who had control over the forklift operations, was it the truck drivers? 

So having eliminated the Houbens as being the people that might have control, he then moves on to the truck drivers –

Well apparently not.

They had no control, the truck drivers, over the particular matters that we’re concerned with, which is the loading and unloading of the truck, according to the prosecutor, we’d say the management of the forklift.  That was left to DMP Poultech, however we do know this, don’t we, we know that Mr Azzopardi, shortly before he met his death, had been helping Mr Devent.  Now the nature of that wasn’t fully explored by the learned prosecutor, but we know that he was helping in some way, Mr Devent, because that’s what Mr Devent said.

The precise mechanism by which the module fell is unknown, and wasn’t explored with Mr Devent in any detail by the prosecutor.  It doesn’t matter, it probably doesn’t matter for our purposes.  We do know apparently, if you believe some of the evidence, that these modules were jumping off trucks like lemmings over a cliff, so regular was the way in which they fell.

Just to interpose there; yes, that is right, that was the evidence and that goes to whether the company, by engaging independent contractors, was sufficiently providing for a safe system of work in terms of section 20(2) of the Occupational Health and Safety Act.  It was notorious.  Some evidence was given that these were falling off several times a night in some locations –

Well you’d wonder what Mr Azzopardi was doing, as an experienced truck driver, knowing that these things are raining down off trucks, what he was doing wandering around the spot that he was.  But put that to one side.  The fact of the matter is nobody has suggested in this court, the prosecutor hasn’t suggested that the truckies had any control over the use of the forklifts.

And you’ll remember Mr Maroney told you that it was at their discretion, that is the truckies’ discretion, when they commenced to do their tie‑down.  That’s another way of saying they decided whether they commenced to do the tie‑down whilst modules were still being loaded.

Now, this is the quotation which my learned friend relies upon to say that this was a matter that was in issue between the parties in this proceeding and see the context in which it appears.  It is in the context of who had control over matters.

HEYDON J:   He particularly relied on the material beginning at line 26.

MR TRAPNELL:   Yes, your Honour.

HEYDON J:   Does that not raise this second defence?

MR TRAPNELL:   It raises it in the context of who had control over matters because if you read it in the context of what goes before it and what goes after it, it is dealing with this issue of control over matters:

Baiada was entitled to rely on competent and experienced sub‑contractors in order to carry out the work that they could not do themselves.

Well what is the work?  What is the work?  It is not clear here that the work is the loading and unloading of the trucks.

FRENCH CJ:   You are not saying that the defence should not have been left?

MR TRAPNELL:   No, I am – well, it is not a question of the defence not being left.

FRENCH CJ:   This is all feeding into the proviso, sort of contextualising its significance in some way.

MR TRAPNELL:   Well, yes, that is right, very much its significance, which goes to whether it constituted a fundamental irregularity by not correctly directing upon it.

FRENCH CJ:   Would you accept that a correct direction by the judge would have been to tell the jury that they must be satisfied beyond reasonable doubt that Baiada, by appointing these contractors, had not provided a system of work that so far as was reasonably practicable was safe and without risk to health?

MR TRAPNELL:   Yes.

FRENCH CJ:   And that direction was not given?

MR TRAPNELL:   No.  But what this goes to is – there are two aspects to it, in our submission.  The first is that what flows from that direction not being given – if this was, as Justice Nettle, in our submission, incorrectly held, a significant defence in the context of how this case was run, that would go to the question of whether this trial was fundamentally flawed and therefore the proviso could not be applied and that is, of course, how Justice Nettle approached the matter.  However, if it was really very much a side wind, which, in our submission, it was, very peripheral, and only raised in the closing address in the context of the ground upon which the battle was fought, which was the control over matters, then it is not a fundamental irregularity.  It is simply a misdirection as to an element which then requires the court to apply the Weiss methodology to determine, well, what has been the effect of that misdirection?  If they come to the conclusion which, in our submission, was the only conclusion the majority in the Court of Appeal could have come to, which was that no reasonable jury on this evidence could have found in favour of the appellant on that issue, then this is an appropriate case, as the majority held, to apply the proviso because there was simply no evidence in this case.

HAYNE J:   But that is saying, is it not, that the defence was not open?  Once you say no evidence, no reasonable jury could act, have you not got to the point of saying the point was not open at trial?  We begin from the opposite premise.

MR TRAPNELL:   In my submission, it is not a defence.  It goes to an element and there is a requirement to direct on elements.  The judge, when he directed in relation to the elements, said there is only one element in issue in this trial, you do not have to worry about the other four, and that is right because when I take you to the rest of Mr Priest’s closing address, you will see that that is exactly what he said; well, I have already taken you to some of it.  If I could just continue with ‑ ‑ ‑

CRENNAN J:   But is that not, with great respect, conflating the debate in the case about actual control and the notion of the right to control?  I mean, is not this defence open in relation to the latter, having regard to the conduct of the whole case?  You are pointing, are you not, with a great deal of emphasis to the debate about actual control?

MR TRAPNELL:   Well, no, because, with respect, there was a lot of debate in the case about a right to control and it was conceded by the appellant in the court below that if there was a right to control, whether or not it had been exercised, that would be sufficient to satisfy the control test.  So it is not a question of there having to be an actual exercise of that right or actual control.

CRENNAN J:   Why is not what has been referred to as the secondary defence open in that context?

MR TRAPNELL:   Because there was simply no evidence that bore upon it.  There were no questions asked about it.  The jury would have had to have been asked to speculate in a vacuum as to what procedures DMP Poultech had in place, should have had in place, what the appellant’s knowledge of that was, whether given the fact that there is a statutory definition, if you like, or elaboration of the concept of reasonable practicability which requires, had the jury been directed adequately about this, to weigh all these matters, the likelihood of the hazards – there was a lot of evidence that the likelihood was extremely high.  The degree ‑ ‑ ‑

HAYNE J:   Your proposition is, I think, reducible to the proposition that the existence of a right to control meant, without more, inevitably, that the exercise of that right was reasonably practicable within the meaning of 21(1) as understood in light of 20(2).  Is that right?

MR TRAPNELL:   I am sorry, your Honour, could you repeat that?

HAYNE J:   The existence of a right to control, that is, the existence of a right in Baiada to control, its subcontractors demonstrated, without more, that Baiada, if you like, had to exercise that right if it was to meet the standard of so far as is reasonably practicable?

MR TRAPNELL:   In the context of the way this case was run and the evidence that was led, yes.

FRENCH CJ:   Well, the appointment of the expert contractor did not go so far as was reasonably practicable on your contention to provide a safe system of work.  Now, that would have to translate into a jury proposition, would it not, that is, a jury could not have been satisfied ‑ ‑ ‑

MR TRAPNELL:   That is right, yes.

FRENCH CJ:   Sorry, must have been satisfied beyond reasonable doubt that the appointment of these contractors, without more, did not go as far as was reasonably practicable.

MR TRAPNELL:   Yes.

FRENCH CJ:   The question is whether that is the issue which should have been left to the jury, whether it was appropriate for the Court of Appeal to ‑ ‑ ‑

MR TRAPNELL:   Well, given that it was not adequately left to the jury, therefore there has been an error and that then requires the Court of Appeal to itself assess the whole of the record and determine that issue, which it did, by finding that no reasonable jury could have in these circumstances have done otherwise than convict it.

FRENCH CJ:   If you look at page 620 at around line 10 where their Honours say “The only inference that was open”, that amounts to a conclusion that you would have to have been satisfied beyond reasonable doubt that they had not gone so far as was reasonably practicable if they had not issued safety directions to contractors over whom they had a right of control.

MR TRAPNELL:   Yes.  Well, for example, issued safety directions or satisfied themselves that they had sufficient safety ‑ ‑ ‑

FRENCH CJ:   I am just looking at the context in the way in which their Honours are putting it to understand how it fits into the statutory framework.

MR TRAPNELL:   Yes, but it would not just have to be safety directions.  There would be other ways that – I mean, there was no evidence of their doing anything, issuing safety directions ‑ ‑ ‑

HAYNE J:   They would not be just issuing safety directions.  It would be enforcing them, would it not?  You would have to go to the point of saying because you have got a right to control, it is not just good enough to issue a bit of paper, here are safe working practices, you have to ensure that it is done.  That is a very large proposition.

MR TRAPNELL:   But they did not even issue the paper.  There was no evidence that they did anything.

HAYNE J:   I understand that.

MR TRAPNELL:   So you could not find that they had done anything ‑ ‑ ‑

HAYNE J:   But the content of what is reasonably practicable is the core question.  That is the core of the offence section, is it not?

MR TRAPNELL:   Yes.

HAYNE J:   I am not sure that you can meet that by saying, well, they did nothing.  The question is, are they shown not to have done what was necessary so far as reasonably practicable to maintain?

MR TRAPNELL:   If there was evidence that they had done something, there might be an issue as whether that was sufficient to satisfy what was reasonably practicable, but in this case there was no evidence that they did anything.  So they could not possibly, in our submission, satisfy any test of reasonable practicability to do nothing in regards to safety requirements in the loading and unloading of these modules.  I do not know that I can take it any further.  I mean, I have made the submission.  It does not get any stronger by being repeated.  So unless there is anything else, those are my submissions.

FRENCH CJ:   Thank you, Mr Trapnell.  Yes, Mr Priest. 

MR PRIEST:   They did do something.  They appointed independent contractors who had instructions which I took the Court to.  Your Honours, the way in which the two defences, if you like, tie in were spelt out for his Honour at 565.  I have already taken the Court to it.  I will not repeat it again, 565 lines 5 through to 27, the way in which the two fitted together and it was very importantly – there is no doubt our principal defence, if you like, was one of absence of control, but we certainly distinctly raised the secondary defence and asked his Honour on at least two occasions to put it properly before the jury and he did not.  If the Court pleases.

FRENCH CJ:   Yes, thank you, Mr Priest.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 11.49 AM THE MATTER WAS ADJOURNED