Henry Walker Contracting Pty Ltd v Farnworth

[2002] WASCA 167

HENRY WALKER CONTRACTING PTY LTD -v- FARNWORTH [2002] WASCA 167

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 167
Case No:	SJA:1015/2002	Heard:	24 APRIL 2002
Coram:	WHITE AUJ	Delivered:	24/06/02
No of pages:	43	Judgment Part:	1 of 1
Result:	Appeal allowed and conviction set aside
Category:	A
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Parties:	HENRY WALKER CONTRACTING PTY LTD JAMES FARNWORTH
Catchwords:	Appeal against conviction Appellant charged with a breach of the Mines Safety and Inspection Act 1994 Failing to provide and maintain a working environment in which its employees were not exposed to hazards A conveyor belt had broken and workers had stood upon it without having clamped the belt with the result that the belt moved and dislodged two workmen who were injured accordingly It was accepted that the use of belt clamps provided by the appellant would have avoided the accident Evidence of the existence of a Worksafe instruction which, if complied with, would have prevented the accident that occurred Evidence that on previous occasions the clamps required by the Worksafe instruction had in fact been used Whether the guilt of the appellant established beyond a reasonable doubt
Legislation:	Mines Safety and Inspection Act 1994, s 9
Case References:	Bunnings Forrest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 Johnson v Miller (1937) 59 CLR 467 Meiklejohn v Central Norsemen Gold Corporation Ltd (1998) 19 WAR 298 Walsh v Tattersall (1996) 70 ALJR 884 Adelaide Timber Co Pty Ltd v Shepherd [2001] WASCA 110 Australian Char Pty Ltd (1995) 79 A Crim R 427 Azzopardi v Q [2001] HCA 25 Collins v State Rail Authority of New South Wales (1986) 4 NSWLR 209 Cullen v State Rail Authority (NSW) (1989) 31 IR 207 Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234 Ferrari v Neenan [2000] WASCA 191 Geraldton Fisherman's Cooperative Limited v Munro [1963] WAR 129 Widgee Shire Council v Bonney (1907) 4 CLR 977 GJColes & Coy Limited v Goldsworthy [1985] WAR 183 Green v Mabey, unreported; SCt of WA; Library No 940711; 7 December 1994 Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53 Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40 McLean v Tedman (1984) 155 CLR 306 Morrison v Atlas Group Pty Ltd, unreported; SCt of WA; Library No 960698; 12 December 1996 Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, unreported; SCt of WA; Library No 930457; 6 August 1993 Murphy v Morrison, unreported; SCt of WA; Library No 960089; 5 February 1996 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Schultz v Tamworth City Council (1995) 58 IR 221 Sydney City Council v Coulson (1987) 21 IR 477 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Vrisakis v Australian Securities Commission (1993) 9 WAR 395 Workcover Authority of NSW v Waugh (1995) 59 IR 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : HENRY WALKER CONTRACTING PTY LTD -v- FARNWORTH [2002] WASCA 167 CORAM : WHITE AUJ HEARD : 24 APRIL 2002 DELIVERED : 24 JUNE 2002 FILE NO/S : SJA 1015 of 2002 BETWEEN : HENRY WALKER CONTRACTING PTY LTD

Appellant

AND

JAMES FARNWORTH
Respondent

Catchwords:

Appeal against conviction - Appellant charged with a breach of the Mines Safety and Inspection Act 1994 - Failing to provide and maintain a working environment in which its employees were not exposed to hazards - A conveyor belt had broken and workers had stood upon it without having clamped the belt with the result that the belt moved and dislodged two workmen who were injured accordingly - It was accepted that the use of belt clamps provided by the appellant would have avoided the accident - Evidence of the existence of a Worksafe instruction which, if complied with, would have prevented the accident that occurred - Evidence that on previous occasions the clamps required by the Worksafe instruction had in fact been used - Whether the guilt of the appellant established beyond a reasonable doubt

(Page 2)

Legislation:

Mines Safety and Inspection Act 1994, s 9

Result:

Appeal allowed and conviction set aside

Category: A

Representation:

Counsel:

Appellant : Mr G Clifford
Respondent : Ms C J Thatcher

Solicitors:

Appellant : Hollingdales
Respondent : State Crown Solicitor

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

Bunnings Forrest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
Johnson v Miller (1937) 59 CLR 467
Meiklejohn v Central Norsemen Gold Corporation Ltd (1998) 19 WAR 298
Walsh v Tattersall (1996) 70 ALJR 884

Case(s) also cited:

Adelaide Timber Co Pty Ltd v Shepherd [2001] WASCA 110
Australian Char Pty Ltd (1995) 79 A Crim R 427
Azzopardi v Q [2001] HCA 25
Collins v State Rail Authority of New South Wales (1986) 4 NSWLR 209


(Page 3)

Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234
Ferrari v Neenan [2000] WASCA 191
Geraldton Fisherman's Cooperative Limited v Munro [1963] WAR 129 Widgee Shire Council v Bonney (1907) 4 CLR 977
GJColes & Coy Limited v Goldsworthy [1985] WAR 183
Green v Mabey, unreported; SCt of WA; Library No 940711; 7 December 1994
Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998
Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149
Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53
Kirby v A & M I Hanson Pty Ltd (1994) 55 IR 40
McLean v Tedman (1984) 155 CLR 306
Morrison v Atlas Group Pty Ltd, unreported; SCt of WA; Library No 960698; 12 December 1996
Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, unreported; SCt of WA; Library No 930457; 6 August 1993
Murphy v Morrison, unreported; SCt of WA; Library No 960089; 5 February 1996
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Schultz v Tamworth City Council (1995) 58 IR 221
Sydney City Council v Coulson (1987) 21 IR 477
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Workcover Authority of NSW v Waugh (1995) 59 IR 89

(Page 4)

1 WHITE AUJ: This is an appeal against the decision of Mr Bloeman SM given in the Court of Petty Sessions at Broome on 17 January 2002, whereby his Worship found the complaint, Karratha Charge No 15437 of 1997, proved and convicted the appellant.

2 The appellant is a substantial company engaged in the civil engineering business at many work sites in Australia, employing more than 900 persons as direct employees, besides sub-contractors and agents. The charge arises out of an incident that occurred at Yandi II Mine in this State on 19 January 1997.

3 It appears that the conveyor belt CV202, which was carrying ore to the ore processing plant at the Mine, broke. It was necessary for men to stand on the belt in order to remove the ore on the section of the conveyor belt that had broken, before repairs to it could be carried out. The ore was to be removed by the use of shovels. In such a case, it has been found that there is a danger that the belt may move under the influence of gravity, posing a risk to men who are standing on the belt at the time. It is common cause that this danger can be averted by the use of clamps which hold the belt in position and so prevent its moving. For this purpose, the appellant provided clamps at the site which, if they had been affixed in position, would have prevented the movement of the belt when the ore was being removed from it.

4 On the day in question, although the clamps were available, they had not been affixed, the belt moved when men were standing on it and two of the men, namely Dennis Rapana and Gordon Neil, fell from the belt and were injured as a result.

5 The charge was that the appellant:

"being an employer, failed, so far as practicable, to provide and maintain at a mine a working environment in which its employees were not exposed to hazards in that if failed to make arrangements for ensuring so far as was practicable that the maintenance of plant, namely conveyor CV202, was carried out in such a manner that its employees were not exposed to hazards, contrary to Sections 9(1)(e) and 9(7) of the Mines Safety and Inspection Act 1994."

6 The prosecution furnished further particulars, including:

"5. The arrangements which the complainant alleges the defendant failed to make were the provision and use of a means

(Page 5)

of ensuring that the belt did not slip while the employees were on it. A practicable means was the securing of the belt with clamps."

7 On the facts, the complaint was of the failure to use the clamps which had been provided to secure the belt before the men were allowed on to it. It was common cause that the clamps had been provided by the appellant and would, if properly affixed, have avoided the hazard. As it was, the learned Magistrate found that, for "some unknown reason", the clamps were not used.

8 When the charge first came before the Court of Petty Sessions, the appellant took a successful objection to the broad scope of the prosecutor's opening and to the amended further particulars on which the prosecutor sought to rely. At the close of the prosecution case, counsel then appearing for the appellant submitted that there was no case to answer and the learned Magistrate upheld that submission. The Crown appealed against his Worship's decision to a single Judge and that appeal was upheld. The appellant appealed that decision to the Full Court which ruled that the learned Magistrate was right to have refused to allow the prosecutor to broaden the case and remitted the matter back to the Magistrate for a continued hearing on the basis that the appellant could elect whether or not to call evidence. It did so, dealing with the size of the operation of the appellant and also with the "worksafe" procedure that the appellant had for repairing split belts. At the end of the hearing, the learned Magistrate convicted the appellant on the charge and the matter now comes before me on appeal from that decision, pursuant to leave granted by Pullin J on 12 February 2002.

9 At the hearing before the learned Magistrate, the following statement of agreed facts was presented and formed the basis for the prosecution case.

"STATEMENT OF AGREED FACTS

1. On 19 January 1997 the following persons were employees, or were deemed pursuant to s 9(3) of the Mines Safety and Inspection Act 1994 to be employees, of Henry Walker Contracting Pty Ltd: Sean Beer, Nathan Collins, David Chu, Stuart James, Greg Barry, Gordon Neil, Barry Grocke and Dennis Rapana.

(Page 6)

2. On 19 January 1997 the CV202 conveyor belt at the Yandi iron ore plant ('the conveyor belt') and its surrounds was a workplace controlled by Henry Walker Contracting Pty Ltd.

At about 2.15 on 19 January 1997 the CV202 conveyor belt split completely across the belt ('separated') whilst on the underside portion of the conveyor.

4. At approximately 6.30am Sean Beer, Nathan Collins, David Chu, Stuart James, Greg Barry, Gordon Neil, Barry Grocke and Dennis Rapana were engaged in the task of removing ore from the CV202 conveyor belt. Jim Heaton, a fitter, was working in the vicinity of the belt performing other tasks.

5. While the ore was being removed, as detailed in paragraph 4, the belt was not clamped.

6. At approximately 6.40am on 19 January 1997, while the persons identified in paragraph 4 were removing ore from the conveyor belt, the belt began to move downwards, feeding through rollers on which the belt rested.

7. As a result of the incident Dennis Rapana sustained a fractured right ankle, a fractured right forearm, a compression fracture of the T12 spinal vertebrae and some bruising around his ribs with no obvious fracture.

8. As a result of the incident Gordon Neil suffered lacerations to the back of his right leg and left shin which were stitched."

10 His Worship's Reasons for Decision in relation to the conviction of the appellant were:

"This matter came before the Court during November 1998 and then again on the 6th of July 1999 when the matter was heard and a decision given.

A submission made by Defence Counsel of a no case to answer was upheld. The complaint was dismissed with costs for the Defendant.

The Complaint appealed the decision to the Supreme Court of Western Australia before a single Judge.

(Page 7)

Justice Wheeler heard the matter and published her decision on the 5th of November 1999.

Justice Wheeler upheld the appeal and ordered a new trial before a different magistrate.

The Defendant then appealed to the Full Court. The appeal was heard by Justice Miller, Justice Ipp and Justice Heenan. The decision of the Full Court was published on the 12th of September 2000.

The Full Court of Appeal held that the Defendant was partially successful and that the case should be remitted to the same magistrate for further re-hearing of the matter according to law.

The Full Court agreed with Justice Wheeler that there is a case to answer but disagreed with Her Honour on other points, one of them being that the matter should be heard by a different magistrate.

Upon the resumption of the case on the 7th December 2001, the Defendant called one witness, Mr Brenton Bastian. The witness was not directly involved during the accident. He did give evidence as to what the Defendant's policy was in relation to the safety procedures.

The Complainant's final submission is that the question for determination is whether the Complainant has established beyond reasonable doubt that the Defendant failed to make arrangements for ensuring so far as was practicable that the maintenance of plant, the conveyor belt CV202, was carried out in such a manner that the employees were not exposed to hazards.

The duties of an employer are not absolute but the Defendant must provide a safe working environment as far as is practicable.

The Defendant submitted that the complaint as worded does not disclose negligence in accordance with evidence heard and presented by the Complainant.

In a letter dated the 28th of November 1998, particular 5 of the Particulars provided for by the Complainant reads:

(Page 8)

'The arrangements which the Complainant alleged the Defendant failed to make were the provision and use of a means of ensuring that the belt did not slip while the employees were on it. A practicable means was the securing of the belt with clamps.'

The Complainant alleged that there were two arrangements that the Defendant failed to make. It is the second arrangement referred to in particular 5 that gave rise to the dispute.

As stated by Justice Ipp on page 4, paragraph 4:


'According to the appellant (Defendant) properly construed, particular 5 meant that the respondent (Complainant) was alleging that the appellant (Defendant) had failed to make arrangements for the use of means of ensuring that the belt did not slip (in effect by failing to make arrangements for the use of clamps). The respondent (Complainant) on the other hand contended that the relevant allegation in particular 5 was that the appellant (Defendant) had failed to make arrangements of the kind in question by failing itself, to use clamps to secure the belts.'

There is evidence before the Court and accepted by both parties that the clamps had been brought to the side in the vicinity of the belt.

And it is accepted by both parties that clamps were not in use on the belt at the time of the accident.

There is evidence that the maintenance supervisor was present and the production supervisor, together with his men, were present and ready to shovel by hand the ore from the belt.

The maintenance supervisor had gone to make a phone call to instruct the maintenance men to repair the belt.

During the absence of the maintenance supervisor, the production supervisor did give instruction to his workers to 'get up there'. All workers had been 'tagged out' which is a safety precaution to notify everyone involved that the belt should not be operated for as long as it is 'tagged out'.

(Page 9)

There is evidence that the supervisors and workers knew of belt clamping. The evidence from witness Rapana is that he experienced on four to five occasions the breaking of a conveyor belt and had removed ore from such conveyor belt by shovel while it was clamped.

My findings are that the belt had broken and was in need of repair and maintenance. The maintenance supervisor was aware of the repair needed and was in the process of making arrangements for the belt to be repaired.

The production supervisor and his men were ready to remove the ore from the conveyor belt by hand.

The employees removing the ore from the conveyor belt were acting within the scope of their employment.

An accident occurred and employees got hurt because of the slipping of the conveyor belt.

That the conveyor belt was not clamped at the time of the accident occurred and the Defendant well knew of the need to clamp the belt prior to removing ore from the conveyor belt. The charge was under section 9(1) and (7) of the Mines Safety & Inspection Act, 1994.

I find that the Complainant has satisfied this Court beyond reasonable doubt that the Defendant contravened Section 9(1) and (7) of the Mines Safety & Inspection Act, 1994.

Taking into account all matters, the belt was not clamped as required. For some unknown reason the clamps were not used.

I find that there was a lack of communication between both supervisors as both supervisors well knew of the need of the use of clamps but did not do so.

The Defendant failed in so far as was practicable, that the maintenance and repair to the conveyor belt was carried out in such a manner that its employees were not exposed to hazards.

I find that the Complainant has proven their case."

11 The grounds of appeal against that decision are:

(Page 10)

"1. The trial Court erred in concluding that:

(a) The maintenance supervisor had gone to make a phone call to instruct the maintenance men to repair the belt; and

(b) During the absence of the maintenance supervisor the production supervisor gave instructions to his workers to 'get up there';

in that there was no evidence called at the trial capable of supporting these conclusions beyond reasonable doubt or at all.


2. The trial Court erred in concluding that there was a lack of communication between both supervisors regarding the use of belt clamps in that:

(a) This conclusion is directly contradicted by an earlier (correct) finding that the reason clamps were not used was unknown; and

(b) No evidence was called capable of supporting such a conclusion beyond reasonable doubt or at all.


3. The trial Court erred in convicting the appellant of failing so far as was practicable to provide and maintain a working environment in which its employees were not exposed to hazards based upon a finding that there was a lack of communication between supervisors in that:

(a) The essential factual ingredients alleged in the complaint as particularised did not disclose a lack of communications between supervisors as the (or an) essential factual ingredient of the complaint; and

(b) The trial Court had on the 18th of November 1998 (at transcript page 42) disallowed (correctly) an application by the complainant to supplement (or amend) its particulars of the complaint to include as an essential factual ingredient a reference to a

(Page 11)

lack of communications between supervisors regarding the use of belt clamps; and

(c) The Full Court of the Supreme Court of Western Australia unanimously upheld the trial Court's ruling disallowing the complainant's application to 'add' to its essential factual ingredients to particularise an allegation of a lack of communications between supervisors regarding the use of belt clamps (see Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253, delivered 12 September 2000; per Ipp J at paragraph 6, Miller J at paragraph 29).

4. The trial Court erred in convicting the appellant in that there was no evidence before the Court upon which it could conclude beyond reasonable doubt or at all that:

(a) There was a failure to use clamps that operated on the mind [sic] of the company (the only rational inference available on the evidence being that the failure to use the clamps was as a result of a casual omission of an unidentified employee); and

(b) Any detriment to safety (unreasonable exposure to the particularised hazard) was causally connected to the corporate defendant,

and the evidence before the Court showed the reason clamps were not used was unknown."

12 The appellant's grounds of appeal are based upon three broad contentions, namely that:

"(a) The appellant has been convicted of committing an offence (a particular contravention of s 9(1)(e) and (7) of the Mines Safety and Inspection Act 1994 (WA) ('the Act')), with which it has not been charged.

(b) If the appellant had been charged with the particular contravention of s 9(1) and (7) of which it has been convicted there is no or clearly insufficient evidence to justify that conviction.

(Page 12)

(c) There is no evidence to support, and the trial Court has not dealt with, the elements of the offence necessary to convict a corporate defendant (mens rea)."

13 Subsections (1) and (7) of s 9 of the Mines Safety and Inspection Act 1994 provide relevantly:

"9. Duties of employers

(1) An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must –


(a) provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards; and

(b) provide such information, instructions and training to and supervision of employees as is necessary to enable them to perform their work in such a manner that they are not exposed to hazards; and

(c) consult and cooperate with safety and health representatives, if any, and other employees at the mine where that employer's employees work, regarding occupational safety and health at the mine; and

(d) where it is not practicable to avoid the presence of hazards at the mine, provide employees with, or otherwise provide for the employees to have, such adequate personal protective clothing and equipment as is practicable to protect them against those hazards, without any cost to the employees; and

(e) make arrangements for ensuring, so far as is practicable, that –

(Page 13)

(i) the use, cleaning, maintenance, transportation, and disposal of plant; and

(ii) the use, handling, processing, storage, transportation, and disposal of substances,

at the mine is carried out in such a manner that that employer's employees are not exposed to hazards.

...

(7) An employer who contravenes subsection (1) commits an offence and is liable in the case of a corporation to a fine of $100 000 and in the case of an individual to a fine of $10 000.

... "

14 Counsel for the appellant submitted that, as a matter of law, the culpability (if any) of the defendant is not absolute. He relied on the repeated use of the phrase "so far as is practicable" and on Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 per Wallace J at 109 and 110, where his Honour, referring to the analogous provisions of the Occupational Health, Safety and Welfare Act 1984 said:

"It is important to construe the Act. It clearly does not impose an absolute duty upon an employer to provide and maintain a safe working environment not exposed to hazards. 'Practicable' is defined in the Act as meaning

'reasonably practicable having regard to the severity of any potential injury that may be involved and the degree of risk of it occurring having regard to inter alia the means of removing or mitigating that risk and the availability of knowledge thereof'."

15 On behalf of the appellant, counsel submitted further that:

"5. The relevant particular of the charge (the essential factual ingredient) is put as a failure to make arrangements for the provision and use of belt clamps, so far as was practicable, to prevent slippage of a conveyor belt. The particulars do not and for the reasons set out below cannot include as an essential factual ingredient an

(Page 14)

allegation or conclusion that the appellant's failure leading to belt slippage was a communication failure between two of its supervisors.

The pleading of a charge and the legal effect of particulars

6. An accused person is entitled to require the Crown to define with precision the transaction upon which the Crown relies to ground a charge. This brief but important proposition has now been the law in this country for over 50 years. The proposition has been referred to and affirmed in all relevant superior Courts including the following: Johnson v Miller (1937) 59 CLR 457; S v The Queen (1989) 168 CLR 266 at 272-277, 278-282; Stanton v Abernathy (1990) 19 NSWLR 656 at 671-672; Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100; Vrisakis v Australian Securities Commission (1993) 9 WAR 395 at 416; Bunnings Forrest Products Pty Ltd v Shepherd (unreported, Full Court, Supreme Court of WA, Library No 980235), per Anderson J at pages 8, 9, 13 and 17 and Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 at 14.

7. Particulars properly provided define the charge an appellant is required to answer. An appellant cannot be convicted on the basis of evidence outside the defined particulars (the charge). Interstruct Pty Ltd v Wakelam (supra), per Pidgeon J at page 118 and per Rowland J at page 120; Bunnings Forrest Products Pty Ltd v Shepherd (supra), per Anderson J at pages 8, 9, 13 and 17; Johnson v Miller (supra) at pages 489 – 490 per Dixon J; Vrisakis v Australian Securities Commission (supra); Byrne v Baker [1964] VR 443; Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249, per Brennan J at page 252."

16 In Meiklejohn v Central Norsemen Gold Corporation Ltd (1998) 19 WAR 298, Anderson J, dealing with the provisions of s 30B(1) of the Mines Regulation Act 1946 (which in its terms is almost identical to s 9(1) of the Mines Safety and Inspection Act 1994) said at 312:

(Page 15)

"I think each charge under s 30B(1) of the Mines Regulation Act must relate to an identifiable act or omission that is productive of unreasonable exposure to a hazard or hazards."

17 If the prosecution case is based on an alleged specific failure, it is necessary that the failure be distinctly stated in the complaint: Walsh v Tattersall (1996) 70 ALJR 884, per Kirby J; Johnson v Miller (1937) 59 CLR 467 at 489, per Dixon J. It is not for the court at the trial of a criminal prosecution to see whether the offence was committed by some act other than is alleged in the complaint: Bunnings Forrest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998, per Anderson J at pp 13 - 15 and 17.

18 The appellant submitted that there was no evidence given at the trial capable of supporting the following findings of the learned Magistrate, beyond a reasonable doubt or at all:

(1) That the maintenance supervisor was present;

(2) That the maintenance supervisor had gone to make a phone call to instruct the maintenance men to repair the belt;

(3) That during the absence of the maintenance supervisor the production supervisor gave instructions to his workers to "get up there";

(4) That there was a lack of communication between both supervisors regarding the use of belt clamps.

19 It may be, counsel submitted, that to some extent those findings of fact seem to have been based not upon the evidence but upon the opening address by the prosecutor, in which he said (AB 18 E-F, 19 E-F):

"There are maintenance personnel and there are production personnel. Both maintenance and production personnel in turn have a supervisor. The arrangements were made in this case by the maintenance supervisor for belt clamps to be brought to the site and there were communications between the maintenance supervisor and the production supervisor for the morning shift in which the production supervisor was asked to arrange for personnel to come over to remove the ore from the belt.

That occurred, the workers were instructed to start work on the belt. At that time that happened, the maintenance supervisor was not actually present. He had gone off to make a phone call to arrange for the belt repairers to come to the site at an

(Page 16)

appropriate time to actually repair the belt. Accordingly, notwithstanding that the maintenance supervisor considered it was necessary for there to be belt clamps in place, while he was absent, the production supervisor went ahead and directed his staff to commence work without having any communications in that regard with the maintenance supervisor.

...

There will be evidence that the circumstance of this particular accident occurring, whereby there was not any clear control either centred with the plant supervisor or the maintenance supervisor, was a circumstance which had been brought to the attention of mine management prior to the incident.

The maintenance supervisor at the time, Mr Ellis – he was the ... (indistinct) ... relevant morning of the incident – had previously experienced numerous situations in which Mr Hoffman had, in effect, interfered with his turf or taken steps and controlled his employees who he considered should be under his control. He had expressed concerns in that regard to the plant superintendent on numerous occasions and about the effect that it may have potentially if this occurred on there being an accident at the site."

20 The appellant supported his Worship's finding that the reason the clamps were not used was unknown. No evidence was called by the prosecution in that regard.

21 The gravamen of the charge against the appellant was its alleged failure to make arrangements for the provision and use of clamps to prevent the belt from moving during the clearing away of the ore on the belt. The appellant contended that the evidence established that the appellant had in fact made adequate arrangements for the provision and use of such clamps. Counsel submitted that:

"The evidence regarding arrangements made

17. The evidence established beyond any argument that the appellant made arrangements for the provision of belt clamps on this and all known prior occasions. The trial Court found that belt clamps were brought to the site of the belt prior to the commencement of any work on the conveyor (AB 9B, 18A-B).

(Page 17)

18. The appellant had employees who were available to affix the belt clamps. The conveyor had been flagged off, its electrical operations switched off and employees had tagged out and isolated the conveyor belts operational controls prior to any workmen getting on the conveyor. (See AB 9C-D, E).

19. The respondent put its case on the footing that the appellant had an adequate system of work including the use of clamps with employees and supervisors. See AB 18E, Henry Walker Contracting Pty Ltd v Farnworth (supra) at page 9. See also AB 61C-62A, 75-76.

20. The respondent's evidence was that on every other known occasion that maintenance of this type had occurred on conveyors at the site, belt clamps had in fact been provided and used. In fact on this occasion the employees (at least Mr Rapana) thought the belt had been clamped (See AB 9D, 39E-40B, 38C).

21. The appellant had procured and provided belt clamps for use in clamping the belt while it was being repaired for a considerable time prior to the accident in question in this case. As such it is clear the appellant saw belt clamps as a practicable means of ensuring a belt did not slip. The prosecution accept belt clamps as an adequate means of ensuring a belt does not slip (AB 18 A-B).

22. Importantly there was no evidence as to why clamps were not used on this occasion. The trial Court found the reason was 'unknown' (AB 10A(para 2)).

24. [sic] Exhibit 7 (AB 75-76) showed that the appellant's job safety work procedure in operation on the mine site included a step that clamps be used during maintenance on a belt.

25. There was no evidence of any previous accidents of this type occurring (See AB 60E). The appellant company's operations involved substantial undertakings employing large numbers of people (in excess of 900 employees) (See AB 60F-61B).

(Page 18)

The drawing of inferences from proven facts and the onus of proof in that regard

26. To draw an inference against the company as a result of non-use of the clamps involved mere speculation and was against the weight of the other evidence. (See AB 9D, 39E-40B, 38C)

Schellenberg v Tunnel Holdings (1999) 200 CLR 121 at 131 and Azzopardi v The Queen (Unreported) [2001] HCA 25 3 May 2001 at page 7, para 21 and page 9 para 34.

27. Having regard to the evidence and the trial Court's findings referred to above, it is clear that the respondent failed to prove at all or at least to the requisite degree (beyond reasonable doubt) that the appellant had failed so far as is practicable to make arrangements for the provision and use of clamps on the belt (Schellenberg at page 131 and Azzopardi at paragraph 34). In Schellenberg the High Court approved Justice Ipp's conclusion in the Full Court of the Supreme Court of Western Australia where he said 'On the basis of His Honour's findings, the cause of the accident was known in the sense that it must have been one of the factors to which the learned Judge referred. Thus for the [plaintiff] to succeed he had to prove that the management did not use proper care in regard to all the factors mentioned. Without such evidence it could not be said that the management's lack of care caused the accident'.

The proper inferences to be drawn in this case

28. Having regard to the uncontested evidence set out above, the only relevant reasonable inferences which could have been drawn by the trial Court were:

(a) The appellant company's policy was to use belt clamps.

(b) The appellant company had in place at the relevant time a proper and safe procedure to ensure non-exposure to the hazard being the use

(Page 19)

of belt clamps in the maintenance of conveyor belts to prevent slippage occurring.

(c) The appellant company in fact used belt clamps.

(d) The reason why clamps were not fixed to the belt on this one-off occasion was unknown (as in fact the trial Court did find)."

22 In relation to the third ground of appeal, counsel for the appellant submitted:

"29. Even if (which is denied) there was any evidence of any lack of communication between supervisors, it was not open for the trial Court to convict the appellant of failing so far as was practicable to provide and maintain a working environment in which its employees were not exposed to hazards based upon a finding that there was a lack of communication between supervisors.

30. The essential factual ingredients alleged in the complaint as particularised did not disclose a lack of communications between supervisors as the (or an) essential factual ingredient of the complaint.

31. The trial Court had on the 18th of November 1998 (AB 28D-E) disallowed (correctly) an application by the complainant to supplement (or amend) its particulars of the complaint to include as an essential factual ingredient a reference to a lack of communications between supervisors regarding the use of belt clamps. Relevantly, one of the disallowed proposed further and better particulars was:


'(h) Require the production supervisor and the plant supervisor to obtain approval from the other supervisor before instructing employees, ordinarily within the control of the other supervisor, to commence a task.' (See AB 16F).

32. The Full Court of the Supreme Court of Western Australia unanimously upheld the trial Court's ruling disallowing the complainant's application to 'add' to its essential factual ingredients to particulars an allegation of

(Page 20)

a lack of communications between supervisors regarding the use of belt clamps (see Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253, delivered 12 September 2000; per Ipp J at paragraph 6, Miller J at paragraph 29).

33. There was no evidence establishing beyond reasonable doubt that any lack of communication between supervisors:

(a) was attributable to the appellant company; or

(b) if it was attributable to the appellant company (which is denied), was the reason for any unreasonable exposure to the hazard of belt slippage."

23 As to the fourth ground of appeal, the appellant submitted that:

" Liability of a corporate defendant

34. Section 9(1) does not impose an absolute liability. Mens rea of an accused must be established. A company can only act through natural persons. The necessary element of mens rea in prosecutions of this type must be established by showing a person of sufficient seniority in the management of the company had the requisite mens rea.


Tesco Supermarkets Ltd v Nattrass [1972] AC 153; GJ Coles & Coy Limited v Goldsworthy [1985] WAR 183; Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477, per Brennan J at 514-515; specifically in the context of cases such as this see Collins v State Rail Authority of New South Wales (1986) 4 NSWLR 209, per Street CJ at 214-215.

35. Such persons existed and could have been called by the prosecution in this case (for example the project manager of the mine). The prosecution appears to have been aware of the need to adduce such evidence (and that potential witnesses were available in that regard) to establish the appellant company's guilt and did not do so (see AB 19F, 20A-B, 20F).

(Page 21)

36. The prosecution appear to have accepted in opening the need to do more than simply establish that clamps were not used in order to obtain a guilty verdict (see eg. AB 19F, 20A, 20F, 24D-E). The prosecution's closing submissions are less clear in this regard (see AB 95).

37. If at the end of the evidence there is any doubt raised as to whether the events (unreasonable exposure to the hazard) were caused by the failure alleged against the appellant employer (as particularised in the complaint) or some other factor unrelated to the actual failure alleged, then the appellant is entitled to the benefit of that doubt. Cullen v State Rail Authority (NSW) (1989) 31 IR 207, per Fisher P at 210-211;

38. In respect of each element of the offence, if there remains a reasonable hypothesis consistent with the innocence of the appellant the complaint must be dismissed.


See Cullen v State Rail Authority (NSW) (1989) 31 IR 207, per Fisher P at 210-211; Bunnings v Shepherd (supra), per Anderson J at 22-23; where His Honour citing from Cullen and Collins states:

[citing Cullen] ' .... where it is ... obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus on the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt.'

[citing Collins] 'It imports also the recognition that an employer with a very substantial undertaking under his or its responsibilities may well act reasonably or, put more precisely, may well not be properly held to have failed to act reasonably, if that employer has responsibility delegated within its workforce the due performance of obligations such as are imposed by this section'.

The position of the appellant company in this case

(Page 22)

39. The evidence established the appellant had a proper and safe procedure for the maintenance of conveyor belts, which included using belt clamps. Even if it were established beyond reasonable doubt that the failure to use the belt clamps was somehow attributable to the employer appellant, this would not have been sufficient to establish guilt (Bunnings v Shepherd (supra), per Anderson J at 22-25). Certainly proof of a single instance of negligent supervision by particular supervisors is not necessarily proof that the appellant failed to provide and maintain a safe working environment (Bunnings v Shepherd (supra), per Anderson J at 22).

40. On the question of the state of the employer appellant company's mind the evidence established the following:


(a) The respondent did not establish the appellant failed to exercise due diligence to see the proper and safe practise that was in place for using belt clamps was observed.

(b) There was no evidence that the employees were other than competent.

(c) The respondent's case was that supervisory personnel were provided and there was no evidence that those supervisors were not competent.

(d) There was no evidence to suggest the employees would depart from the safe and proper system of work. In fact the evidence was directly contrary to this, being that clamps were provided and used on all known prior occasions.

(e) There was no evidence to suggest that the appellant employer was aware that its employees would depart from the proper and safe practise for using belt clamps.

(f) There was no evidence to suggest that the appellant employer was aware that its employees or supervisors were in any other way not competent to perform the tasks required.

(Page 23)

Bunnings v Shepherd (supra), per Anderson J at 22-23.

41. The evidence was not capable of supporting a finding, especially one beyond reasonable doubt, that the reason for any unreasonable exposure to the hazard of belt slippage was a failure attributable to the appellant company. The respondent did not established [sic] beyond reasonable doubt that the failure to use belt clamps was attributable to the appellant company. In fact the trial Court's finding was that the reason clamps were not used on this particular occasion was unknown.

42. Even if it was open for the trial Court to conclude (by inference) that an unidentified employee of the appellant company simply forgot to use the clamps, this is simply a casual act of negligence for which the appellant company cannot be held responsible. In any event such an explanation as to the cause of the accident is an acceptable hypothesis reasonably consistent with the innocence of the appellant, which has not been negatived by the prosecution."

24 The respondent, on the other hand submitted that:

"Background Law

8. The objects of the Mines Safety and Inspection Act 1994 (WA) ('the Act') include:


(a) to promote, and secure the safety and health of persons engaged in mining operations; and

(b) to assist employers and employees to identify and reduce hazards relating to mines, mining operations, work systems and plant at mines; and

(c) to protect the employees against the risks associated with mine, mining operations, work systems at mines, and plant and hazardous substances at mines by eliminating those risks, or imposing effective controls in order to minimise them.

(Page 24)

9. The safety provisions of the Act are designed to prevent industrial accidents. It imposes a positive duty upon employers to ensure that employees are not exposed to hazards which might cause injuries or loss of life.

Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, Unreported, Supreme Ct of WA, 6 August 1993, Lib. No. 930457, per Commissioner Ng at 7.

10. One of the chief responsibilities of employers is the safety of those who work for them. In the main, such a responsibility can only be discharged by taking an active, imaginative, and flexible approach to potential dangers in the knowledge that human frailty is an ever present reality.

Australian Char Pty Ltd (1995) 79 A Crim R 427 per Phillips CJ, Smith & Ashley JJ at 437-438

11. The object of the safety provisions of the Act is to make workplaces safe from real, foreseeable and avoidable risks and it is upon the employer that that obligation is placed because the course of human experience is that even careful and conscientious employees, from time to time, will drop their guard.

Green v Mabey, Unreported, Supreme Ct of WA, 7 December 1994, Lib. No. 940711, per Parker J at 6

12. Long experience has shown that employees do sometimes act inadvertently or without due care for their own safety. It is in that context than an employer must guard against such acts or omissions as may foreseeably cause injury.

Australian Char Pty Ltd, supra at 442.

13. An employer's obligations are of no lesser dimension than those which arise under the common law: Australian Char Pty Ltd, supra at 442. The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. And in deciding whether an employer has

(Page 25)

discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands.

McLean v Tedman (1984) 155 CLR 306 per Mason, Wilson, Brennan & Dawson JJ at 313

Cullen v State Rail Authority (1989) 31 IR 207 at 219

14. A system if established must be maintained.

Sydney City Council v Coulson (1987) 21 IR 477 at 480

15. A breach by an employee would not amount to a defence for an employer.

Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 per Pidgeon J at 116

16. It is not sufficient for an employer to say that he had no knowledge of a particular risk. The test for knowledge by an employer of the relevant risk is what the employer knew or ought to have known.

Morrison v Atlas Group Pty Ltd Unreported, Supreme Ct of WA, 12 December 1996, Lib. No. 960698, per Scott J at 20

17. The obligation to provide and maintain a safe system is always upon the employer and the system that is actually worked is the system that is provided in the relevant sense by the employer.

Schultz v Tamworth City Council (1995) 58 IR 221 at 226 and 229

18. A mere appointment of a competent foreman does not go any way towards meeting obligations under the Act.

Murphy v Morrison Unreported, Supreme Ct of WA, 5 February 1996, Lib. No. 960089, per Parker J at 7

(Page 26)

19. Where dangerous procedures are adopted in potentially risky situations and an accident occurs when there is no or insufficient supervision, then a causal connection between a failure to supervise and a detriment to safety is made out in the absence of other evidence.

Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at 182

20. When considering a statute giving expression as a matter of public policy to standards of safety, management has a positive obligation to inform itself of circumstances of safe working.

Workcover Authority of NSW v Waugh (1995) 59 IR 89 at 100

21. In Bunnings Forest Products Pty Ltd v Shepherd, Unreported Full Ct of Supreme Court of WA; Lib. No. 980235; 5 May 1998, Anderson J said that:

'Proof of a single instance of negligent supervision is not necessarily proof that the appellant failed to provide and maintain a safe working environment'
(See also Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53 at [45]. These comments should not be taken to mean that a single instance of negligent supervision or a casual failure by an employee, supervisor or otherwise cannot support a conviction."

25 Ms Thatcher, of counsel for the respondent, accepted that there was no evidence supporting the learned Magistrate's findings that the maintenance supervisor had gone to make a phone call to instruct maintenance men to repair the belt and that there was a lack of communication between both supervisors regarding the use of clamps. She submitted further that:

"Ground (d) – No evidence that failure operated on mine of company

29. In so far as the legislative requirements touching industrial safety had become more demanding on

(Page 27)

employers, this must have its impact on community expectations of the reasonably prudent employer. The nature of the duties and hence the question of whether an employer has offended against s 9(1) of the Act should be construed in that context.

Henry Walker Contracting Pty Ltd v Farnworth, supra per Miller J at [33], citing Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 per Hungerford J.

30. Section 9 of the Act imposes duties on employers, as distinct from proscribing particular conduct. The duties imposed are personal to the employer, and each duty can be described as a duty to do what is reasonably practicable for the purposes of obtaining that objective in the course of its own activities. The duties are non-delegable, meaning that an employer who arranges for another to discharge its duty cannot escape liability if the duty so delegated is not properly performed.

Hamersley Iron Pty Ltd v Robertson, unreported SCt of WA; Lib No 980573; 2 October 1998 per Steytler J at p9

31. The Appellant admitted that it employed a number of people, including Mr Rapana, on 19 January 1997 and that the conveyor belt at Yandi iron ore plant and its surrounds was a work place controlled by the Appellant (Statement of Agree Facts, AB 15). As a consequence, the Appellant came under a duty under s 9(1) of the Act to, as far as was practicable, provide and maintain a working environment in which hits employees were not exposed to hazards.

32. The Appellant further admitted that the CV202 conveyor belt split across the belt whilst on the underside portion of the conveyor and that numerous of its employees were engaged in the task of removing ore from that conveyor belt. The belt was not clamped while the ore was being removed and began to move downwards while employees were removing ore from the conveyor belt, resulting in injuries to employees (State of Agreed Facts, AB 15).

(Page 28)

33. There is no question of the Complainant needing to prove that the relevant failure under s 9(1) of the Act operated on the controlling mind of the Appellant.

34. It is not necessary to show either that the controlling mind of the Appellant knew of the failure to use clamps or that in some way the failure to use clamps operated on the mind of the Defendant. See comments in Morrison v Atlas Group Pty Ltd, supra at p 20.


See by analogy Interstruct Pty Ltd v Wakelam, supra 100 per Wallace J at p 111, per Pidgeon J at p 117

Geraldton Fishermen's Cooperative Limited v Munro [1963] WAR 129 at p 133

Widgee Shire Council v Bonney (1907) 4 CLR 9777 at p 981-2

See also Ferrari v Neenan [2000] WASCA 191 at [12], [18], [21]


35. A breach of s 9(1) of the Act was established on its face (by evidence of a means of securing the belt against slippage not being used while workers were on the belt debris). Although there may have been explanations as to why the belt clamps were not in position which were exculpatory in nature, there was simply no evidence before the Court to explain why, in fact, the belt clamps were not in place. There was no evidence for the Respondent to negative. In these circumstances, the only appropriate course was for the learned Magistrate to find the complaint proved."

26 In addition, Ms Thatcher contended that:

"36. Notwithstanding the errors in the learned Magistrate's reasons for decision, the Respondent contends that the conviction of the Appellant should stand. The learned Magistrate had before him a Statement of Agreed Fact (AB 15) together with the uncontested evidence from the Respondent's witnesses Mr Rapana (AB 31-40) and Mr Farnworth (AB 40-50). The evidence led by the

(Page 29)

Appellant afforded no explanation for how it came about that belt clamps were not used on the occasion, the subject of the complaint. The evidence clearly disclosed a failure to use belt clamps in circumstances that exposed employees to a hazard, where it was reasonably practicable to use belt clamps. In the absence of evidence explaining why belt clamps were not used, the appropriate conclusion is that the Appellant has failed in its duty under s 9(1) of the Act and should be convicted.

See by analogy Adelaide Timber Co Pty Ltd v Shepherd [2001] WASCA 110 per Wallwork J at [29]-[31]"

27 At T 44, I asked Ms Thatcher:

"Is it your case that, in order to make the belt safe, clamps should have been fixed?"

Ms Thatcher: "Yes."

I asked: "Clamps were not fixed, therefore the company is guilty?"

Ms Thatcher: "Yes ... It's not that it cannot go no further, but as that is the evidence, then, yes, we would say that is sufficient. We would say not only is that sufficient but the Full Court in the majority have effectively said that, by saying that on the evidence the complainant had led in the Court of Petty sessions there was a prima facie case."

28 Ms Thatcher drew attention to the decision of the Full Court in Henry Walker Contracting Pty Ltd v Farnworth[2000] WASCA 253, delivered 12 September 2000 – the decision on the appeal against the judgment of Wheeler J delivered on 5 November 1999 in which her Honour allowed the appeal from the decision of the learned Magistrate upholding the no case to answer submission to which reference has been made above.

29 In that decision, the following passages deal specifically with the no case to answer submission.

30 Ipp J said, at par 8:

(Page 30)

"As regards the question whether the learned Magistrate wrongly held that there was no case to answer, counsel for the appellant, in essence, submitted that, although there was evidence that the clamps were not used, there was nothing in the evidence which established criminal culpability on behalf of the corporate appellant for the failure to use clamps. Having regard to what was said in this respect in Morrison v Kiwi Electrix Pty Ltd & Anor (1998) 19 WAR 482, and particularly in regard to the drawing of inferences which are reasonably open, I consider that his Worship should not have granted the application. There was evidence that on several past occasions clamps had been used but not on the occasion which gave rise to the complaint. The inference is available from this that the appellant well knew of the need to clamp the belts, but failed to do so. In the circumstances, I see no reason why the matter should not proceed before the same magistrate, as Miller J proposes, for the completion of the trial."

31 Heenan J said, at par 11:

"The factual basis of the charge, as shown by particular 5, was that the conveyor belt was not secured by clamps, or by some other means, before the employees went on to it. The evidence before the learned Magistrate clearly showed a prima facie case. As Wheeler J pointed out in the course of the last passage from her judgment quoted by Miller J, it was open to his Worship to find not only that the belt had slipped because it was not secured but also to infer that arrangements had not been made to ensure that it was secured, since there was nothing to indicate any reason why arrangements, if made, would have been unsuccessful."

32 Miller J said, at pars [32] – [38]:

"[32] This was essentially the evidence for the prosecution and at the close of the prosecution case it was submitted to the learned Magistrate that there was no case to answer. The essence of the submission made by the appellant was the submission made before Wheeler J and on the hearing of this appeal. It was described by Wheeler J as being 'wholly unintelligible' but that was perhaps too harsh a description of it. What the appellant was submitting was that the complaint was confined to an allegation that the appellant had failed to make

(Page 31)

arrangements for maintenance of plant. That failure (it was contended) must by definition occur prior to the future activity of maintenance being carried out. Maintenance (it was said) included keeping the conveyor in working order, but the appellant's case was that maintenance included repairing the conveyor, repairs including but not being limited to replacing/fixing the split belt. It was put that the complaint did not charge that the appellant had committed an offence by failing to clamp belts or failing to use clamps but that the case against it was an alleged failure to take 'a step in preparation for maintenance of plant'. It was put this way in the appellant's outline of submissions:

'32. ... Specifically it was alleged the failure was to arrange for the provision and use of clamps. Notably the appellant was not charged with failing to use clamps. Such a charge requires a different factual enquiry to a "make arrangements" charged confined by its particulars to the provision of clamps.

33. The term "arrangements", by definition refers to preparatory measures, in this context measures made prior to the doing of the act of maintenance. The term "maintenance" is of wide import and should be construed widely in the context in which it appears. It clearly encompasses repairing the conveyor to its fully operational capacity by the removal of the split belt and its replacement and all acts necessary for that to occur. On a proper reading of the relevant provision (section 9(1)(e)(i)) of the Mines Safety and Inspection Act 1994 ("the Act"), the act of providing clamps and the act of using clamps were part of the maintenance activity itself and not "arrangements" for that maintenance activity.'


[33] In support of this submission the Court was referred to my decision in Leighton Contractors Pty Ltd v Ridge, unreported, SCt of WA; Library No 980650; 23 October 1998. Although in that case I held that the words 'provide and maintain' should be given a wide interpretation and not a restrictive one, the conclusion reached in the case was simply that the requirement cast on the appellant in that case to 'provide and maintain plant of a kind that so far as practicable the deceased was not exposed to hazards' meant that the appellant had an obligation not

(Page 32)

limited to the provision of plant and maintenance of it by the 'supply, furnishing or equipping' of a tractor and the 'preservation of it in good order' but an obligation extending to ensure that dangerous features on the tractor should be rectified. I do not consider the case to be of particular import in this appeal. Further, and in any event, in Leighton Contractors (supra) I pointed out that the objects of the Occupational Health and Safety Act (which are in similar terms to the Act) had at all times to be considered. I quoted the following passage from Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 per Hungerford J (at 49 - 50):

'I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace.'

Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: 'Accident prevention is unquestionably one of the modern responsibilities of an employer.' The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty Limited v Braistina (1986) 160 CLR 301 at 309: 'In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer.' It is my view that the nature of the duties, and hence the question of whether an employer has offended against s 16(1), are to be construed in

(Page 33)

that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179:

'The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable.'

Again, and to a similar effect, Isaacs J commented in Rice v Henly (1914) 19 CLR 19 at 22:

'In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit.'

These general principles are equally applicable to consideration of the present appeal and call in my view for a broad interpretation of the provisions of s 9(1) of the Act and not the narrow one urged for by the appellant. As I see it, the charge contained within the complaint (as particularised) did not allege a failure to make arrangements for the provision and use of belt clamps but a failure to make provision for and to use a means of ensuring that the belt did not slip while employees were on it. I accept the argument of counsel for the respondent that the provision and use of belt clamps in the circumstances relevant to the complaint was an arrangement for maintenance rather than maintenance itself. I accept also that the particulars provided identified the section which was breached, the date and location of the alleged offence, the plant being maintained, the incident that occurred, the hazard, the employees affected, what arrangements it was alleged the appellant had failed to make, and what arrangements could have been made. I am firmly of the view that the alleged failure to make arrangements properly included in its scope a failure to give instruction to use the clamps to fix the belt and prevent it from slipping on the day in question. Wheeler J (somewhat caustically) dismissed the appellant's argument in the following way:

(Page 34)

'I think, in the end, the submissions boil down to two propositions, perhaps three. The first is that, for reasons which entirely escape me, the complaint and particulars were only ever to be understood as alleging that the respondent had failed to provide clamps; however, since clamps had been provided although they were not used the charge could not be made out. I see no reason to accept this submission.

Alternatively, it seems to be suggested that the respondent did not fail to make arrangements for the provision and use of clamps because the bringing of the clamps to the site constituted such "arrangements". This proposition overlooks the fact that the statutory requirement is not to make any arrangement, however perfunctory or unlikely to succeed, but to make arrangements "for ensuring, so far as is practicable …". To "ensure" is to make certain, qualified in this case by the circumstance that absolute certainty is not required, but certainty "so far as is practicable".

Alternatively, it was suggested that the combination of the circumstance that clamps had been brought to the site and the circumstance that Mr Rapana had seen clamps used on the four or five previous occasions on which he had witnessed a split conveyor belt, meant that it was impossible to exclude the hypothesis that there had indeed been a system of some kind and that all arrangements practicable had been made for securing the belt but that these arrangements had somehow mysteriously failed.

…

The manner in which the maintenance of the belt was carried out on this occasion was plainly one which was not safe and which did expose employees to the hazard of slippage, which in fact occurred. The work was being carried out by employees of the company acting in the course of their employment. Because of his Worship's earlier rulings, there was no evidence of direct instruction, but equally there was nothing to suggest that they were acting outside the scope of their employment.

(Page 35)

There was evidence that there was a supervisor in charge of the injured employee and there is no evidence that the supervisor either himself attempted to secure the belt or directed others to do so, or warned the employees that the belt was not secured. There was evidence of the availability of belt clamps and that they were a practicable means of ensuring that slippage would not occur. It was therefore open to his Worship to infer that arrangements had not been made to ensure that the clamps had been used, since there was nothing to indicate any reason why arrangements, if made, would have been unsuccessful.'

[34] I respectfully agree with these conclusions.

[35] The learned Magistrate's acceptance of the submission that there was no case to answer was expressed in very brief reasons (which, as Wheeler J pointed out, were hardly reasons at all) and in the following terms:


'I came to the view that I accept without hesitation the submission made by the defence counsel and I find that a jury reasonably instructed could not reach a verdict as in my opinion there is no evidence in relation to the complaint as it stands now. And, as I stated, I did find that arrangements were made; the clamps were at the site, were at the bottom of the conveying belt but were not put on. I therefore uphold the submission by defence counsel that there is a case --- no case to answer.'

[36] The test as to whether there is or is not a prima facie case has been clearly stated in this Court in Morrison v Kiwi Electrix Pty Ltd & Anor (1998) 19 WAR 482. It is properly stated in the headnote to that report in the following terms:

'Where a no case to answer submission is made by an accused in reply to the prosecution case, the trial judge is required to ask whether the evidence of the Crown, taken at its highest, is capable of establishing beyond reasonable doubt the guilt of the accused. That same test is to be applied in a case depending upon circumstantial evidence as it is in a case depending upon direct evidence. In a circumstantial case, the question becomes

(Page 36)

whether, on the assumption that all the evidence of primary facts considered at its strongest from the point of view of the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, the evidence is capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt at the guilt of the accused.'

This statement is in fact the formulation of the test by King CJ in R v Bilick (1984) 36 SASR 321 at 337.

[37] As identified by Wheeler J, there was evidence in the present case which established a prima facie case. The respondent, in its outline of submissions, accurately summarised that evidence in the following terms:


'(a) the Respondent was an employer (AB 36A);

(b) on 19 January 1997 at Yandi II Mine (a mine controlled by the Respondent), employees of the Respondent were in the process of removing ore from the conveyor belt that had split, ie, they were in the process of conducting maintenance of plant, namely Conveyor CV202 (AB 87B, 88F-91E, 36A-B);

(c) employees were exposed to a hazard (and two employees were injured) when the broken belt began to move downwards, feeding through rollers on which the belt rested (AB 89D-91E, 36C-E);

(d) clamping the conveyor belt was a means of reducing and mitigating the risk of exposure to the hazard and was a practicable arrangement to make (AB 106E-107A, 109E);

(e) the conveyor belt was not clamped (AB 36C).'


[38] Although counsel for the appellant argued that the respondent had failed to negative all reasonably available hypotheses consistent with innocence of the appellant, it is my view that the case had not reached the point where that question needed to be considered. It was not a circumstantial evidence

(Page 37)

case but one in relation to which the evidence of Rapana and the statement of agreed facts constituted direct evidence. Once a prima facie case had been made out, it was for the respondent to elect whether or not to testify. If it elected not to do so, the question before the learned Magistrate would be whether on the whole of the evidence he could be satisfied beyond reasonable doubt of the guilt of the appellant. The question what inferences could or could not then be drawn might well arise. However, there was, in my view, a clear prima face case for the reasons that I have outlined. This fact was recognised by Wheeler J and I respectfully agree with her in relation to it."

33 Accordingly, the Full Court was clearly distinguishing the position before and after the close of the defence case in any trial, with particular reference to a submission of no case to answer. As Miller J pointed out, the case had not yet reached the stage where the question whether the prosecution had negatived all reasonably available hypotheses consistent with innocence needed to be considered. Of course, that stage has since been reached.

34 Ms Thatcher said that there was a simple and a complex way of looking at the facts. The simple way was that the Full Court had "found a prima facie case and the further evidence simply did not undermine that in any way shape or form and it didn't offer anything by way of exculpation". The complex way, she submitted, required reference at the start to the decision in Bunnings Forrest Products Pty Ltd v Shepherd(supra) where Anderson J (with whom Franklyn and Ipp JJ agreed) said, at p 22: "Proof of a single instance of negligent supervision by particular supervisors is not necessarily proof that the appellant failed to provide and maintain a safe working environment." His Honour quoted from the decision of Fisher P in Cullen v State Rail Authority (NSW) (1989) 31 IR 207.

35 Ms Thatcher submitted, I think correctly, that Anderson J was not saying that if there is a single instance of negligent supervision by a particular supervisor, then the corporate defendant cannot be convicted.

36 The prosecution witness, Mr Rapana, gave the following evidence as to his experience of the use of belt clamps:

"In relation to belt clamps specifically, had you previous to this accident observed the use of belt clamps in relation to conveyors where belts had snapped on the conveyor? - - - Yes.

(Page 38)

Can you describe on how many occasions you had seen that occur? - - - Yeah. Just this one mine?

Belt clamps in relation to conveyor belts where they had snapped? - - - Well, I've seen a few but on this - - on Yandi mine, like I said, about four or five times I've seen it."

37 Ms Thatcher accepted that from that evidence, an inference could be drawn that there was in place at the Yandi Mine a system that clamps be used when a belt broke. She submitted, however, that that inference would not suffice to exonerate the appellant. She referred to Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100. In that case, a workman employed by the appellant was injured when he fell from a working platform less than 3 metres high which had been erected by him shortly before the accident. He was at the time using his own ladder which was shorter than the length required by the Occupational Health, Safety and Welfare Regulations 1988. The appellant had in fact provided a longer ladder which complied with the regulations and which was in an adjacent storeroom. The appellant had been convicted of failing to provide and maintain, so far as practicable, a non-hazardous working environment (Occupational Health, Safety and Welfare Act 1984) and failing to provide an access ladder complying with Reg 350(2) of the Occupational Health, Safety and Welfare Regulations 1988. The appeal was allowed in respect of both counts (Pidgeon J dissenting in relation to the former count.) Wallace J held, at 109 that:

"It is important to construe the Act. It clearly does not impose an absolute duty upon an employer to provide and maintain a safe working environment not exposed to hazards. 'Practicable' is defined in the Act as meaning

'reasonably practicable having regard to the severity of any potential injury that may be involved and the degree of risk of it occurring having regard to inter alia the means of removing or mitigating that risk and the availability of knowledge thereof.'

...

In my opinion, the onus in this case lay upon the prosecution which alleged a breach of statutory obligation to show that the offender failed, so far as is practicable, to provide the statutory environment."

(Page 39)

38 Pidgeon J, in dealing with the question of the requirement of mens rea, said at 117:

" The essence of the regulation is that the employer shall ensure that a ladder of specified length be provided and secured to a working platform. I consider this regulation must be interpreted to refer to a working platform of which the employer has knowledge. If the platform is already in existence it would be easy for him to ensure that it has the appropriate ladder. I consider he would have the necessary knowledge if there was a possibility of a working platform coming into existence during the performance of the contract, but I consider in that event his obligation would be discharged by making available to a man, who knows how to place it, a suitable ladder.

If the interpretation were otherwise then an employer would be guilty without his doing any culpable act or having a guilty knowledge. The relevant principle at common law is stated in Sherras v De Rutzen [1895] 1 QB 918 at 921 in a passage that was quoted by Gibbs CJ in He Kaw Teh v The Queen (1985) 157 CLR 523 at 528. The relevant passage from the firstmentioned case is:


'There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.'

In this State the law applicable is governed by s 23 of the Criminal Code. This and other sections relating to criminal responsibility contained in Ch V of the Code can be expressly or impliedly excluded by the law creating the offence: Geraldton Fishermen's Co-operative Ltd v Munro [1963] WAR 129. I would approach the matter on the basis that there is an intention that Ch V of the Code relating to criminal responsibility would apply unless impliedly excluded. It would be difficult to make sense of reg 350 unless it is interpreted to refer to a landing or working platform of which the employer has or ought to have knowledge. I would see no intent to exclude those provisions of the Code to which I have referred.

(Page 40)

I do not consider in the present case that it has been shown that the appellant was aware that the working platform was in existence at the time. It has been shown that it could be expected that such platform would come into existence when scaffolding had been erected but I consider the appellant has carried out its obligation by having the ladder in the storeroom next to the scaffolding components."

39 Ms Thatcher submitted that the obligation of the appellant under the Act was non-delegable. She said (at T 61-62):

" ... The simple fact is that it's an obligation and in that sense the nature of the offence under section 9 and section 19 of the Occupational Safety and Health Act is an unusual offence by comparison, for example, to the vast majority of offences in the Criminal Code.

The Criminal Code says, 'You can't do this,' in all except those couple of instances, for example, failing to provide the necessities of life, and negligent use of a dangerous vehicle I think is another example, and so in those situations if you are looking at trying to prosecute a company for that kind of offence, you have to show some connection with the company. You have to show that the company has done something wrong.

The situation here is the nature of the offence is the company has an obligation. If at the end of the day that obligation hasn't been complied with, there's no question of the identity of the defendant. The identity of the defendant is established by the fact that they are the employer of the people at the work site; they have the responsibility. They can delegate it to whom they wish but if the people to whom they delegate it let them down, then the fact that their duty is non-delegable means that the failure of their delegates is their failure.

It depends of course on precisely how you particularise the charge because if one had said that the charge was a failure to provide a system, then the evidence, had it been a little bit stronger led by the defendant may well have been sufficient to establish there was a system, but that's not the failure here. The failure is not a failure to have a system, it is a failure to use the belt clamps, the failure to make arrangement for ensuring so far as was practicable that the maintenance of the plant was carried

(Page 41)

out in such a manner that its employees were not exposed to hazards."

40 Ms Thatcher concluded her oral submissions by saying:

" At the end of the day it gets back to how one considers the charge must be approached. We would say that the prosecution does not have to prove mens rea. The prosecution by establishing what it set out to establish, that is, that belt clamps were not used, has produced sufficient evidence to establish the charge. That it opened on a broader case and that the court in Petty Sessions and in the Full Court has said, 'No, you can't lead that evidence,' does not mean that the evidence that was led is not capable of sustaining the charge and the prosecution would say that, given the obligations placed on an employer such as the appellant, the evidence before the Court of Petty Sessions simply can lead only to one conclusion, and that is the conclusion of conviction. Unless there are particular issues your Honour wishes me to address, those are my submissions."

41 That submission seems, by implication, to suggest that the obligation on the employer to provide a non-hazardous environment is absolute which is incorrect. Based on that submission, the respondent's contentions appear to be that if belt clamps had been used, the offence would not have been committed and that, because belt clamps were not in fact used, the appellant is guilty of the offence.

42 There can be no doubt, in my opinion, that the securing of the conveyor belt with belt clamps would have been practicable, in the sense in which that term is used in the Act, and effective. Why this was not done is unknown, as the learned Magistrate found. The clamps were provided for the purpose and on site at the relevant time. Mr Rapana's evidence shows that, on previous occasions, where a belt had split, clamps were used.

43 Wheeler J, in her reasons for decision in relation to the first appeal in this matter said, in the passage cited with approval by Miller J in the Full Court as set out above:

"It was therefore open to his Worship to infer that arrangements had not been made to ensure that the clamps had been used, since there was nothing to indicate any reason why arrangements, if made, would have been unsuccessful."

(Page 42)

44 There was, however, another inference reasonably available, in my opinion. There was evidence of the existence of the Worksafe instructions requiring the use of clamps in relation to work on conveyor belts and the evidence of Rapana of the four or five previous occasions that, in his experience at the Mine, a conveyor belt had split, when clamps had been provided and used. In my opinion, those facts would, as indeed was conceded by Ms Thatcher, give rise to a reasonable inference that the appellant had in place a system for the use of the clamps provided when a belt split. I would equate such a "system" with an "arrangement" for the purposes of the charge.

45 It is apparent that the appellant and its employees well knew of the need to clamp a split belt before workmen climbed on to it for the purpose of removing ore preparatory to the repair of the belt. The learned Magistrate did not find that the accident that occurred was of a kind that does not ordinarily happen without negligence. He held that the reason for the failure to clamp the belt was unknown. In Collins v State Rail Authority of NSW (1986) 5 NSWLR 209, the Court of Criminal appeal of New South Wales held that where an employer is found to have laid down a safe and proper practice and there is no evidence of failure by the employer to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a breach of s 17 of the Occupational Health and Safety Act 1983 (NSW).

46 The learned Magistrate made no express finding that the appellant had or had not laid down a safe and proper practice in relation to the clamping of a broken belt. The evidence disclosed the existence of the worksafe instruction and that clamps had been provided. On each of the previous occasions when a belt had broken, Mr Rapana said that clamps had been used successfully. It is not in dispute that the use of those clamps in accordance with the instructions would have prevented the accident. It is, I think, implicit in his Worship's findings that there was in place a system or arrangement which, had it been observed, would have prevented the accident. In saying that, I refer to the finding that:

"Taking into account all matters, the belt was not clamped as required. For some unknown reason the clamps were not used." (Stress added.)

47 The phrase "as required" can only mean, I think, "as required by the worksafe instruction".
(Page 43)

48 In view of the learned Magistrate's finding that the reason for the failure to secure the belt with clamps was unknown, I am of the opinion that the prosecution failed to establish the guilt of the appellant beyond a reasonable doubt.

49 Accordingly, I shall allow the appeal and set aside the appellant's conviction.