Director of Public Prosecutions v Midfield Meat International Pty Ltd (Ruling No. 4)

[2021] VCC 1569

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00335

DIRECTOR OF PUBLIC PROSECUTIONS

v

MIDFIELD MEAT INTERNATIONAL PTY LTD

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JUDGE:	O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 30 September, 1–11 October 2021
DATE OF RULING:	12 October 2021
CASE MAY BE CITED AS:	DPP v Midfield Meat International Pty Ltd (Ruling No. 4)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1569

RULING
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Subject:CRIMINAL LAW

Catchwords:   Submission of no case to answer; Whether evidence of failure to provide and maintain safe system of work; Whether particulars of Charge 2 provide an alternative basis for liability; Submission upheld in respect of Charge 1, Particular 6(b); Submission rejected in respect of Charge 1, Particular 6(a) and Charge 2, Particulars 5(a) & 5(b).

Legislation Cited:  Occupational Health and Safety Act 2004

Cases Cited:Doney v The Queen (1990) 171 CLR 207

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APPEARANCES:	Counsel	Solicitors
For the Accused	Dr D Neal SC with Mr S Russell	FCW Lawyers
For the DPP	Ms M Tittensor SC with Mr D Chisolm	Office of Public Prosecutions

HIS HONOUR:

Ruling No. 4 – No case to answer application

Introduction

1The accused, Midfield Meat International Pty Ltd (‘Midfield Meat’), is charged with two offences contrary to ss 21(1) and 21(2) of the Occupational Health and Safety Act 2004, namely failing to provide and maintain a system of work that was, so far as is reasonably practicable, safe and without risks to the health of employees.

2The prosecution case is now closed and before announcing its course, the accused company has made a submission that there is no case to answer in respect of both charges.

3The evidence not in issue has established that Midfield Meat owned and operated a meat processing and abattoir facility in Warrnambool, and as part of those operations it agisted cattle for processing at a property known as Wandobah in Dunkeld.

4On 15 December 2017, Mr Patrick Smith, a Midfield Meat employee and field officer, went to Wandobah for the purpose of weighing and drafting cattle in an enclosed yard. Shortly after he commenced that task that morning, he was fatally injured by a bull stag. He was working alone at the time.

5The elements to be proved in respect of each charge, it is accepted by both parties, as fourfold. They are:

(a)   the accused was an employer;

(b)   there was a risk in the working environment to the health and safety of employees;

(c)   the accused failed to do something, that is, take an identified measure, which would have limited or reduced that risk; and

(d)   it was reasonably practicable in circumstances to have taken steps to eliminate or reduce that risk by taking the identified measure.

6Mr Russell, who took the carriage of this argument on the behalf of the defence, focused on the third element of the charges and what he contended was the prosecution’s failure to prove that Midfield Meat had failed to take the identified measures particularised in each of the charges. He further submitted that there were other problems with the charges, with which I will deal below, that were likely to cause confusion and uncertainty and which aditionally supported his application.

7The principles to be applied in assessing these submissions were succinctly stated in the High Court decision of Doney v The Queen (1990) 171 CLR 207. The court there stated the principle in the following form:

‘…if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.’

Charge 1

8Turning to Charge 1, the dangerous cattle charge. Particular 3 of Charge 1 alleges as follows:

Certain cattle represent a higher risk to employees due to their aggressive or agitated behaviour where they are uncastrated or where they are improperly castrated (dangerous cattle).

9The risk identified in this charge is a risk of serious injury or death to employees which arises when they enter an enclosed yard with dangerous cattle. It is alleged that the risk materialised when Mr Smith entered the enclosed cattle yard at Wandobah in circumstances where amongst the cattle was a Friesian cross bull stag which, by virtue of its incomplete castration, was a dangerous bull stag.

10The charge alleges that it was reasonably practicable for Midfield Meat to eliminate or reduce that risk to health and safety by providing and maintaining a system of work in which

(a)   cattle are assessed and those identified as dangerous are then separated and/or

(b)   Midfield Meat employees were not required to enter an enclosed yard with dangerous cattle.

11Mr Russell submitted that Charge 1 makes two separate allegations: that is, it alleges a failure to provide a safe system, and, second, it alleges a failure to maintain a safe system of work. It was contended that there could be no issue that Midfield Meat had not failed to provide a system of work in which cattle were assessed as dangerous and employees were not required to enter an enclosed yard with dangerous animals.

12The only question that could legitimately arise on the evidence, he submitted, was whether Midfield Meat had failed to maintain a safe system of work. Accordingly, the allegation that the accused had failed to provide a safe system of work should be excised from the charge.

13Turning to particular 6(a), Mr Russell submitted that there was clear evidence from virtually all of the employees called as witnesses that field officers were instructed to identify dangerous cattle. Mr Farley gave explicit evidence as to the need to separate a dangerous animal once identified. He submitted that it was not open on the available evidence to find that there had been a failure of the type alleged.

14As to particular 6(b), Mr Russell acknowledged that this was a separate and distinct allegation that, if proved, was capable of making out Charge 1 independently of any finding in respect of particular 6(a). He contended that there was an abject lack of evidence capable of proving this particular. Patently, employees were not required to enter yards with dangerous animals. The evidence of Mr McKenna, Mr Farley and Ms Price was emphasised as to that point.

15To use one example relied on by Mr Russell regarding the witness Keely Price, she was asked at p 410, line 25:

That you were required to enter yards with dangerous cattle, what would you say about that?‑‑‑Absolutely not.

16Accordingly, Mr Russell put that there was no case to answer in respect of that identified measure, namely that Midfield Meat had failed to provide and maintain a safe system of work in which employees were not required to enter an enclosed yard with dangerous cattle.

17In response on behalf of the prosecution, Ms Tittensor submitted that it is not sufficient for the accused to say, 'We provided a system'. The allegation here is that the accused failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to the health of employees in undertaking the task with dangerous cattle. That is explicitly set out at particular 5 of Charge 1. Such system as was in place did not do as the law requires. Accordingly, the allegation that there was a failure to provide and maintain a safe system remained valid and the allegation of ‘failure to provide’ should not be excised.

18As to particular 6(a), Ms Tittensor submitted that the jury will need to consider the particular context in which these allegations arise. It is not at the abattoir. The evidence of Mr McKenna and the field officers focused on that setting where cattle were not to be handled again at the abattoir but instead were processed.

19Similarly, in the transport context, the system for dealing with dangerous cattle involved different considerations. There was, Ms Tittensor contended, no system dedicated to what should occur in the agistment setting. Leaving it to the worker to sort it out offsite was not a system. Even if it were thought there was some sort of system in place, that system did not separate the animal, and that was the step that would have eliminated the risk. Moreover, there were no documents or instructions setting out was required of field officers in this setting. There may have been expectations, but that was inadequate.

20As to 6(b), Ms Tittensor submitted that it was an inherent part of an employee or field officer's job to get into enclosed yards with dangerous animals. To get cattle through the larger yards, field officers had to get into the yards and that exposed them to the identified risk to their health and safety. By prohibiting employees from entering yards with dangerous animals, that risk would be eliminated.

Analysis: Charge 1

21Dealing with these arguments in sequence, I accept the prosecution's submission that the allegation of a failure to provide a safe system is much more than the provision of any system, however inadequate it may be.

22In my view, particular 5 of Charge 1 provides a complete answer to the accused's submission in that it alleges that the accused failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health in regards to undertaking the task with dangerous cattle.

23Whether or not the accused provided such a system will be a matter for the jury. However, I will not excise the words 'to provide' from Charge 1 as suggested by the defence.

24As to particular 6(a), that is that cattle are assessed and those identified as dangerous are then separated, the prosecution allege that the accused should have had in place and maintained a system where cattle were assessed and those identified as dangerous were then separated.

25In my view, if the charge had simply alleged that the accused had failed to provide and maintain a system whereby dangerous cattle are identified, then it would not be capable of sustaining conviction. The evidence relied on by Mr Russell, through Mr McKenna, through Ms Price, through Mr Farley, overwhelmingly established a system, albeit informal, to that effect. There is nothing that I can see to the contrary.

26However, what is alleged goes further in that the particular alleges that once the animal was identified as dangerous, it is then separated, implicitly safely separated. The issue was dealt with by Dr Bush in his evidence-in-chief at p 557, line 16:

Assuming this animal back in June of 2017 had simply been identified as a stag behaving dominantly, marching up and down, bellowing, that kind of thing, should that have been separated back in June
?‑‑‑Definitely. That dominant behaviour and the traits, visual traits and behavioural traits, are very consistent with an entire bull behaviour.

Now, again, with that knowledge, so once he's identified, what should Midfield's processes have been? It should have been that no one gets into the yard; is that what you're saying?‑‑‑Where it's impractical for no one to get in the yards, especially in a larger yard, so the process would be to have at least two people present on site so that they can work together in order to separate that animal from the remainder of the herd in order to do the weighing that they were meant to be doing.

All right, and do you achieve that separation? Is there known ways of achieving that separation?‑‑‑You've got a few options depending on where the animal is in relation to the gates. You could potentially move it through with a number of other animals and then put it into smaller yards with those other animals and then from outside the yards direct it up the race and into a separate pen, and that way it's separated from the mob.

Yes. Now how many people would need to be involved in that process?‑‑‑At least two.

27Mr Russell, quite properly, pointed to this evidence in his written submissions. However, he did suggest that there was some dilution of Dr Bush's evidence in cross-examination. I am not sure that that is so, but it will be matter for the jury to determine. I am satisfied that Dr Bush's evidence, when taken with a lack of evidence from the field officers as to a system where dangerous cattle on an agistment property are safely separated, provides a basis for a jury, acting rationally, to convict the accused of Charge 1 on the basis of particular 6(a).

28I make no comment on the cogency or otherwise of that evidence. That will be a matter for the jury. However, I find that there is a case to answer in respect of Charge 1 on the basis of particular 6(a).

29Turning now to particular 6(b), which is expressed in the following way:

(Midfield Meat) employees are not required to enter an enclosed yard with dangerous cattle.

30The wording of this particular is difficult. It is expressed as a negative that, at first blush, appears to presuppose that Midfield Meat required its employees to enter enclosed yards with dangerous cattle.

31If that were the allegation, I think it is plain, having regard to the evidence relied on by Mr Russell, that there was no such requirement. The evidence, in my view, is not capable of establishing, for example, that Mr Smith was obliged or required by Midfield Meat to enter the enclosed yard at Wandobah in the circumstances that confronted him that morning.

32On reflection, however, the particular is probably better understood as a failure to expressly prohibit employees from entering an enclosed yard with dangerous cattle. Even so, that formulation remains problematic in my view, for two reasons.

33First, there is evidence to the contrary from Mr McKenna. At p 183, line 7, he was asked in cross-examination:

Does the Midfield system require employees to enter cattle yards with dangerous cattle?‑‑‑Definitely not. It prohibits doing that.

34Consistent with that answer, it is implicit in all of the field officers' evidence that they would not have entered the yard at Wandobah in the circumstances that confronted Mr Smith on 15 December 2017.

35The second problem with particular 6(b) is that particular 6(a) refers to a system whereby dangerous cattle are separated. The method of separation will, in some instances, as Dr Bush made clear, involve getting into an enclosed yard where there is a dangerous animal, but doing so with appropriate safety measures – for example, ensuring that there is a means of escape or safety areas in the yards and having other people present. Dr Bush's evidence was silent as to this issue of prohibiting employees entering yards with dangerous animals.

36If particular 6(b) is read, as I think it should be, as alleging a failure by Midfield Meat to expressly prohibit employees entering an enclosed yard with a dangerous animal, it does not address how dangerous animals are to be safety separated in the manner Dr Bush described. I note further that the document introduced subsequently by Midfield Meat is in the following terms:

Under no circumstances are Midfield employees to enter pens or yards that have cattle encaged in that area without another competent person present.

37The qualifying words 'without another competent person present' is not part of the particular alleged at 6(b).

38There is, therefore, as I perceive it, a tension, if not a conflict, between 6(a) and 6(b) that the evidence does not appear capable of resolving.

39During oral argument, Ms Tittensor was pressed as to what evidence might support particular 6(b). She submitted that it was an inherent part of a field officer's job to enter an enclosed yard with a dangerous animal. Certainly that may be so in the circumstances described by Dr Bush, but, in my view, the evidence is not capable of establishing that they would be required to do so in circumstances where it may otherwise be unsafe, such as the circumstances that confronted Mr Smith on the morning of 15 December 2017.

40Even taking the evidence in support of particular 6(b) at its highest, I am of the view that the evidence is not capable of sustaining a verdict based on that particular. I therefore uphold the accused's submission on particular 6(b).

Charge 2

41I turn now to Charge 2. Particular 3 of Charge 2 is in the following terms:

There was a risk of serious injury or death to employees from contact with cattle in the enclosed yards when working alone at the workplace.

42The risk identified in this charge focuses on the danger of working alone in the conditions confronting Mr Smith on 15 December 2017.

43Particular 5 is in issue, and it states as follows:

It was reasonably practicable for Midfield Meat to eliminate or reduce the risk to health and safety by providing and maintaining a system of work in which

(a) risk assessment of the enclosed was undertaken for the purposes of identifying a safe area or effective escape route, and

(b) another person was present to act as a backup and to provide assistance in the event of an emergency or 'man down' situation when undertaking work in the yard.

44Mr Russell drew a distinction between the wording of particulars 6(a) and 6(b) of Charge 1, and the wording of particulars 5(a) and 5(b) of Charge 2, in that 6(a) and 6(b) of Charge 1 are expressed in the alternative using the and/or conjunction. By contrast, 5(a) and 5(b) of Charge 2 are expressed with the single conjunction 'and', plainly denoting, in his submission, that the prosecution had set themselves the task of proving both 5(a) and 5(b) cumulatively, such that if one failed the charge failed. It was put that that was also consistent with how the prosecution had set out its case in its written summary of prosecution opening.

45As to particular 5(a), Mr Russell submitted that the evidence overwhelmingly established that each field officer would carry out a risk assessment of cattle yards prior to entry. That can be taken from the evidence given from Mr McKenna, Mr Farley, Mr Ross, Mr Finnigan, Mr Robertson, and Ms Price, that the evidence was not capable of establishing a failure because the evidence all went the other way. He further submitted that if it was suggested that a risk assessment had to be in writing, there was no evidence to suggest such a written assessment would have revealed any defect in the yards of Wandobah. Dr Bush, for example, made clear that those yards were indeed fit for purpose.

46As to particular 5(b), Mr Russell contended, as I understood him, that there was a rule already in place in which a second person would be required to assist. Usually it would be the farmer, or, if not, another employee from Midfield Meat would be available to assist. It followed that Midfield Meat had in fact provided a system of work that the prosecution suggests they had failed to implement. Mr Smith's accident may have been an isolated instance; or, in the alternative, it was open to find that Midfield Meat may have failed to maintain its system, but not failed to provide it.

47It followed that particular 5(b) was not capable of being established on the evidence, in least insofar as it alleged a failure to provide a system as distinct from a failure to maintain a system.

48In response, Ms Tittensor indicated that it should be clear to all concerned that the prosecution put that Midfield Meat failed to provide and maintain a safe system of work that encompassed a risk assessment and a second person to act as a backup. Although both were alleged, either one or both would make out the charge. It was not put as cumulative. She said this was made clear in her oral opening to the jury last Monday, and that if there was any concern or uncertainty from or on the defence part, that should have been raised at the appropriate time then, and not after the close of the prosecution case.

49As to particular 5(a), Ms Tittensor said that it was open to the jury to find on the evidence as it presently stands that such informal risk assessments as occurred were not Midfield Meat's system, but rather the individuals’ themselves. Employees' practice may vary, and therefore vary in its capacity to eliminate or reduce risk. The evidence, she submitted, was therefore capable of establishing a failure by Midfield Meat to provide and maintain a safe system with respect to the carrying out of risk assessments.

50With respect to particular 5(b), Ms Tittensor argued that contrary to there being a rule to have two people, the evidence suggested that there was no such rule. She referred to a passage arising in re-examination of Mr McKenna. That passage is at at p 217, line 4 of the transcript:

All right, is there any document that would indicate, prior to the date that we're dealing with, that employees shouldn't be drafting or getting in enclosed spaces, yards, without a second person present?‑‑‑Outside of the abattoir, not that I'm aware of.

No? So there was a rule within the abattoir that you're not allowed into a cattle yard unless there's another competent person present?‑‑‑With - with dangerous animals.

No, I'm just asking generally?‑‑‑No, no. There - no. There was not a rule because there was no need to be, and there still is no need to be, uh, in my opinion.

You were aware that on occasion Mr Smith had been assisted by other people from Midfield out at the Oliver farm, including yourself?‑‑‑Correct.

And is the case that Midfield would simply assume that a field officer like Mr Smith would ensure that another person was present?‑‑‑When handling big - when handling larger numbers of livestock, yes.

But there was nothing. No documentation that outline that as ‑ ‑ ‑?‑‑‑Not - not that I am aware of.

51It was submitted that as at 15 December 2017, whether or not two people were present was a matter of discretion for the particular field officer concerned. Effectively, there was no system in place, and the evidence exposed what the prosecution will contend was a glaring failure.

Analysis: Charge 2

52As to the no case submission relating to particular 5(a), I should emphasise that I'm not at all permitted to engage in any assessment of the cogency of the evidence. With that in mind, I am satisfied that there is evidence capable of making out particular 5(a) of Charge 2.

53There is evidence of heavy reliance on the experience and discretion of individual field officers. Their practice must have varied as to the carrying out of these assessments to some reasonable degree. Nothing was documented, as it was after the event, and in my view it is open to find that such systems as may have been in place as at 15 December 2017 amounted to a failure to provide and maintain, so far as was reasonably practicable, a safe system of work in which a risk assessment of the yards should be undertaken.

54With respect to particular 5(b), I have had little difficulty concluding that there is a case to answer with respect to both the provision and the maintenance of a safe system requiring the use of another person to act as a backup. Suffice to say that Dr Bush's evidence seemed to me to be unambiguous about that issue.

55At p 552, line 1 in examination-in-chief, Dr Bush was asked as follows:

What do you say as to the risk associated with an employee getting into an enclosed yard alone, no one else present in order to weigh and draft a mob of 1-7 cattle?‑‑‑Okay. The risk is going to be increased because their ability to monitor every animal in that yard is limited and the larger the yard, there's a requirement for a person to be in the yard with the animals. Once the yards are smaller, you can handle from outside the yards more easily but in the larger yard, that would not be possible.

So is it the case that the risk to the handler would be reduced if there was a second person present with them?‑‑‑Correct.

If we're to assume that there's no documented rule by an employer about whether or not there needs to be a second person present, and we have a general manager of the company who indicates that he saw no need for a rule for two people to work with the cattle unless there was dangerous cattle, what do you say about that system of work??‑‑‑Well, given the size of the animals that are being handled, having two people is going to definitely make it a safer environment in which to work.

56That evidence provides a foundation which is capable of providing the basis for conviction on the basis of particular 5(b). I therefore find that there is a case to answer in respect of that particular of Charge 2.

57Turning now to the difficulty posed by the drafting of particulars 5(a) and 5(b), and whether both should need to be proved to make out the charge. Given the nature of the controversy I requested – and I should say I was grateful to receive in a short space of time – the transcript of the prosecutor's opening address. My note of Ms Tittensor's address in this respect was inadequate and Mr Russell indicated that he was uncertain as to what had actually been said.

58At p 167, line 15 of that address, Ms Tittensor said the following:

Considering Charge 2, the same thing for the third element. Particular 5 of Charge 2 you'll find at the bottom of p3 of the third page. The prosecution has again identified two things that would have eliminated or reduced the risk to Midfield's employees when carrying out their work drafting cattle in enclosed yards. First, the prosecution says they should have provided and maintained a system that ensured risk assessments in the enclosed yards were undertaken for the purposes of identifying a safe area or escape route'.

This would be something like the cattle yard checklist Midfield introduced following the incident. Second, there should have been another person present to act as a backup and provide assistance in the event that something went wrong. So this doesn't have to be a person inside the cattle yard with them, it could be someone assisting from outside the cattle yard. You'll no doubt consider Midfield's direction to its employees after Midfield's death, that they were not to conduct such work without another competent person present.

So, assuming you find that those measures would have reduced the risk to employees, the prosecution says if you're satisfied that Midfield failed to do one or both of those things, then you'll find that element proven. (emphasis added)

59That was the way the matter was presented to the jury and, in my view, that is the way it should go to the jury at the end of the trial. Mr Russell, candidly and, again, appropriately, indicated that he could not submit that the defence had been prejudiced in some tangible way by the difficulty created by the drafting of 5(a) and 5(b).

60In those circumstances, particulars 5(a) and 5(b) will be put to the jury as alternative bases on which to ground liability for Charge 2. The jury will need to be unanimously satisfied as to (a) or unanimously satisfied as to (b), or both, to convict the accused.

Conclusion

61In summary, the effect of my ruling is as follows. As to Charge 1, I find there is a case to answer with respect to particular 6(a) and it will go before the jury. As to Charge 1 particular 6(b), I find there is no case to answer and that particular will be taken away from the jury and they will be instructed accordingly.

62With respect to Charge 2 and particulars 5(a) and 5(b), I find there is a case to answer on particular 5(a). I also find there is a case to answer on particular 5(b). Notwithstanding the use of the conjunction 'and', the jury will be instructed that particulars 5(a) and (b) provide alternative bases for liability and they will need to be unanimous as to one or the other or both.