Henry Walker Contracting Pty Ltd v Farnworth - [2000] WASCA 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: HENRY WALKER CONTRACTING PTY LTD -v- FARNWORTH [2000] WASCA 253

CORAM: IPP J
HEENAN J
MILLER J

HEARD: 7-8 AUGUST 2000

DELIVERED : 12 SEPTEMBER 2000

FILE NO/S: SJA 1136 of 1999

BETWEEN: HENRY WALKER CONTRACTING PTY LTD
Appellant
AND
JAMES FARNWORTH
Respondent

Catchwords:

Criminal law - Practice and procedure - Complaint in Petty Sessions - Particulars - Entitlement to amend - Whether creation of a different offence - Meaning of making "arrangements" in relation to plant within meaning of s 9(1)(e) of Mines Safety and Inspection Act 1994 - Whether evidence established prima facie case

Legislation:

Mines Safety and Inspection Act 1994, s 9(1)

Result:

Appeal allowed in part
Matter remitted to Court of Petty Sessions, Karratha for re-hearing

Representation:

Counsel:

Appellant: Mr P G Clifford & Mr B A Millar
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Hollingdales
Respondent: State Crown Solicitor

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

Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998
Chaudhary v Ducret (1986) 67 ALR 463
Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40
Leighton Contractors Pty Ltd v Ridge, unreported, SCt of WA; Library No 980650; 23 October 1998
Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298
Meikleljohn v Central Norseman Gold Corporation Ltd, unreported; SCt of WA; Library No 960656; 20 November 1996
Morrison v Kiwi Electrix Pty Ltd & Anor (1998) 19 WAR 482
R v Bilick (1984) 36 SASR 321
R v Wakeley [1920] 1 KB 688

Case(s) also cited:

Byrne v Baker [1964] VR 443
Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Danny Mok (1987) 27 A Crim R 438
Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328
Freundt v Hayes (1992) 59 A Crim R 430
Gerakiteys v R (1984) 51 ALR 417
Gorman & Anor v Fitzpatrick & Anor (1985) 4 NSWLR 286
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Jones v Dunkel (1959-60) 101 CLR 298
Morrison v Winton, unreported; SCt of WA; Library No 960698; 12 December 1996
R v Chin (1985) 157 CLR 671
R v Landy & Ors (1981) 1 All ER 1172
R v Partridge (1930) 30 SR (NSW) 410
R v Phil Maria (1957) St R Qd 512
R v Wakeley [1920] 1 KB 688
Rippingale v The Queen [1999] WASCA 257
Robbins v Horton (1980) 3 NTR 1
S v The Queen (1989) 168 CLR 266
Saffron (No 1) v The Queen (1988) 17 NSWLR 395
Shaw v The Queen (1952) 85 CLR 365
Stanton v Abernathy (1990) 19 NSWLR 656
State Rail Authority of NSW v Dawson (1990) 37 IR 110
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
The Queen v Hermes; Ex parte Ball (1966) 10 FLR 375
Tregilgas v Howie [1926] SASR 122
Vrisakis v Australian Securities Commission (1993) 9 WAR 395
Weissensteiner v The Queen (1993) 178 CLR
Weldon v Neal (1887) 19 QBD 394

IPP J: I have had the benefit of reading the reasons to be published by Miller J. I agree with the conclusion to which his Honour has come and wish to express briefly my own reasons for coming to the same view. The relevant facts appear from his Honour's reasons.
The complaint against the appellant in its final form alleged that the appellant:
" … being an employer, failed, so far as was practicable, to provide and maintain at a mine a working environment in which its employees were not exposed to hazards in that it 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."
The complaint made it plain that the appellant was called upon to answer a case of failing to make arrangements for the maintenance of the conveyor belt.
Particular 5 of the particulars provided by the respondent in a letter of 28 November 1997 read:
"The arrangements which the complainant alleges 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."
Particular 5 therefore alleged that there were two arrangements that the appellant failed to make. There was no controversy about the first. That was an allegation that the appellant failed to provide a means of ensuring that the conveyor belt did not slip while the employees were on it. It was also clear that the respondent was alleging that the appellant should have provided clamps to ensure that the belt did not slip.
It was the second arrangement referred to in particular 5 that gave rise to dispute. According to the appellant, properly construed, particular 5 meant that the respondent was alleging that the appellant had failed to make arrangements for the use of a means of ensuring that the belt did not slip (in effect by failing to make arrangements for the use of clamps). The respondent, on the other hand, contended that the relevant allegation in par 5 was that the appellant had failed to make arrangements of the kind in question by failing, itself, to use clamps to secure the belt.
While I accept that par 5 is not a model of clarity, it seems to me that the respondent was alleging thereby that the arrangements which the appellant failed to make comprised, firstly, the failure to provide clamps and, secondly, the failure to use the clamps. The language, namely "the arrangements which the complainant alleges that the defendant failed to make were the … use of [clamps]", leads me to this conclusion. On the appellant's argument, the wording would have had to be something of the order of "the arrangements which the complainant alleges the defendant failed to make were for the provision and for the use of clamps". This would involve a failure by the appellant to instruct others to use clamps. In my view, particular 5 did not allege a failure by the appellant to make arrangements for some unidentified persons to use clamps. Rather, it alleged a failure on the part of the appellant itself to use clamps. I therefore agree with the conclusions of Miller J in this respect.
Further, I agree with Miller J that the learned Magistrate correctly refused the respondent's application to substitute a new set of particulars. The particulars in question are set out fully in the reasons of his Honour. In my opinion, they were overly general, vague in essential respects and tended to widen the case beyond the complaint as formulated. Applying the principles expressed by Anderson J in Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998, it was open to his Worship to come to the conclusion that he did.
I differ from Miller J in that I consider that the learned Magistrate correctly disallowed the question of the witness Mr Rapana, in effect as to what instructions any supervisor had given him concerning the clamping of the conveyor belt (albeit that that evidence was not hearsay, as the Magistrate held). In my view, the evidence was inadmissible, as the omission to give instructions was not part of the complaint as particularised. According to the complaint, together with the particulars thereto, the offence involved the failure to provide clamps and the failure to use clamps. It did not comprise any failure to give instructions for the use of clamps.
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.

I agree with his Honour's remarks concerning the absence of prejudice to the appellant through any delay. Accordingly, I agree with the orders proposed by Miller J.
HEENAN J: I also agree with the conclusion to which Miller J has come and I agree with his reasons for coming to that conclusion.
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.
I agree with Miller J that the Magistrate should not have disallowed the evidence of the witness Dennis Rapana as to the supervisor's telling the employees to "get up there". The evidence was not hearsay and it tended to confirm that the employees were acting within the scope of their employment at the relevant time and that the appellant was culpable. In my opinion, the evidence ought to have been admitted and on re-hearing, as on this appeal, it should be considered as having been led properly by the prosecution.
Finally, I agree with both Ipp J and Miller J that the appeal should be allowed in part and that the matter should be remitted to the Magistrate for re‑hearing according to law, with a direction that there is a case for the appellant to answer.
MILLER J: This is an appeal from a judgment of Wheeler J delivered on 5 November 1999 in which her Honour allowed an appeal from a decision of a Magistrate in the Court of Petty Sessions at Karratha on 6 July 1999,

dismissing a complaint made pursuant to the provisions of s 9 of the Mines Safety and Inspection Act 1994 ("the Act"). That complaint was dismissed by the learned Magistrate on the basis that the appellant had no case to answer. Wheeler J set aside the decision of the learned Magistrate dismissing the complaint and ordered that the matter be remitted to the Court of Petty Sessions to be re‑heard before a different Magistrate. From that decision the appellant was given leave of this Court to appeal on three primary grounds: (1) the learned Judge erred in concluding that the learned Magistrate had erred in finding that there was no case for the appellant to answer, (2) the learned Judge erred in finding that the learned Magistrate had erred in relation to certain rulings limiting the scope of evidence which the respondent was entitled to adduce, which evidence fell outside the strict limits of particulars which had been given by the respondent, (3) the learned Judge erred in concluding that the learned Magistrate was in error in disallowing an application to substitute proposed further and better particulars in lieu of those which had originally been rendered by the respondent to the appellant.

The history of the proceedings in the Court of Petty Sessions is set out in detail by Wheeler J in her judgment. It is therefore unnecessary to deal in detail with what occurred. The complaint as originally framed reflected the provisions of s 9 of the Act and (as amended at the hearing) alleged that the appellant
" 'being an employer, failed, so far as was practicable, to provide and maintain at a mine a working environment in which its employees were not exposed to hazards in that it failed to make arrangements for ensuring so far as was practicable that the maintenance of plant namely conveyor CV 202 was carried out in such a manner that its employees were not exposed to hazards; contrary to sections 9(1) and 9(7) of the Mines Safety and Inspection Act 1994'."
Section 9(1)(e) of the Act is in the following terms:
"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)…
(b)…
(c)…
(d)…
(e)make arrangements for ensuring, so far as is practicable, that -
(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."
Prior to the hearing in petty sessions the respondent answered a request for particulars rendered by the appellant. Relevantly, the particulars given were:
"2.The complainant alleges that the employees exposed to hazards were the employees, including Dennis Rapana and Gordon Neil, who went on to the conveyor belt after it had split.
3.The hazard to which the employees were exposed was slippage of the belt while they were on it.
4.…
5.The arrangements which the complainant alleges 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."
When the proceedings began in the Court of Petty Sessions at Karratha, counsel for the respondent opened the case in the following terms:
"There will be evidence that this particular conveyor was a bulk ore‑carrying conveyor, a large conveyor, and that an accident -- well, an incident occurred whereby the belt broke and then steps were taken to remove ore from the conveyor belt. At the time that those steps were taken to remove the ore - and this involved quite a number of workers standing on the conveyor belt and shovelling the ore off, manually removing it because the belt itself had broken - the belt had not been secured by a method such as the use of belt clamps.
Accordingly, in those circumstances, the particular hazard to which the employees working on the belt were exposed was movement of the conveyor belt while the employees were on the belt. Prior to the workers commencing work on the belt, they had tagged out a process to put their tags in the conveyor room to make it clear that the plant should not be operated while their tags were on the plant.
MR SEFTON: So there was a tagging‑out process followed but, although belt clamps had been brought over to the site, they had not been put in place at the time that work commenced. The complainant's case is that it was practicable for the defendant company to have provided and used the means of ensuring the belt didn't slip, this being the use of the clamp. So the workers were then working on the conveyor belt, and there will be evidence that the belt suddenly started to move. It's quite a steep conveyor belt, at the end of which a large mound of ore, the crushed ore, is located.
There were workers working at various points along that conveyor. The belt suddenly started to move down the conveyor and, as a result of this, the workers on the conveyor --- a few managed to jump off the conveyor onto the adjacent walkway. One of them, in fact, slipped over on the conveyor, fell and moved with the conveyor belt."
After detailing injuries suffered by workmen, counsel for the respondent made reference to the fact that there were maintenance personnel and production personnel on site, each of whom had a supervisor. He continued:
"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 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."
Counsel for the respondent then sought to widen the case against the appellant by indicating that it would be alleged that there were no defined procedures in relation to who should have overall responsibility for staff in the situation which developed; there was no specific system in place to set down how the conveyor should be cleaned and what steps should be taken beforehand; there was no job safety analysis; and further systems and procedures were put in place after the incident had occurred.
After the opening objection was taken to the way in which counsel for the respondent proposed to widen the case. It was put to the learned Magistrate that the charge was clearly framed in terms of s 9(1)(e) and not otherwise. A number of the matters raised by counsel for the respondent in opening went to other subparagraphs of s 9(1) of the Act and this, it was submitted, was impermissible.
After hearing argument on the matter the learned Magistrate upheld the objections which had been raised by counsel for the appellant although (as recognised by Wheeler J), failing to give any detailed reasons for so doing. The result was that counsel for the respondent made application to amend the complaint by deleting reference to par (1)(e) in the complaint so that the offence alleged was an offence against s 9(1) and not s 9(1)(e). The learned Magistrate duly allowed this amendment. Counsel for the appellant thereupon objected to the broadening of the case by way of matters which were not the subject of particulars, and argued in essence that the prosecution was limited to adducing evidence on the question "whether the belts were clamped or not and whether there were arrangements made for the belts to be clamped (because that's the particular that he gave)".
In response to this objection, counsel for the respondent indicated that he was seeking to lead evidence as distinct from further particularising the case. He said:
"MR SEFTON: Yes. In relation to the clamps and the matters which have been raised in respect of a system to repair and the other specific issues about --- well, production supervisor directing the employees, that is evidence, not a particular. That was a description of what actually occurred. If anything was a particular, it relates to having a clearly defined role in terms of who would be in charge. Again, that is an arrangement relative to the use of the clamps, having someone to --- in a clearly defined position to be in charge.
…
Now, it has been suggested by my learned friend that reference to job safety analysis is something which has never been considered previously by the defendant. If, in fact, the defendant says it is prejudiced, it requires specifically some further and better particulars so that --- because, as I have opened at the moment, I am not clearly --- I have indicated the evidence to be adduced, I haven't specifically provided particulars. If the defendant is saying, well, it would be prejudiced and it requires those further particulars, the court is entitled then to consider whether or not to order further particulars and whether to grant an adjournment.
…
… we say what has been provided in opening no more than particularises and demonstrates what the evidence will be in support of the case that there has been a breach of the section through paragraph (e) being breached. Those are out submissions at this stage, subject to any further submissions."

Counsel for the appellant responded by submitting that the respondent had prepared to a case limited to an allegation of failure to provide belt clamps. He said:
"We have prepared for a case which is limited to, as that letter says, the failure to provide belt clamps and my learned friend has already said that belt clamps were brought to the site but not attached. Now, if that's the only issue, which is the way in which it has been particularised, then that's the case we can meet but we can't meet a case which says, well, there was a problem between and no clear control with the plant supervisor and the maintenance supervisor."
The case was thereupon adjourned and the following morning counsel for the respondent sought to substitute a new set of particulars. These it is unnecessary to reproduce. They were summarised by Wheeler J as follows:
"(1)The production supervisor directed employees without communication with the maintenance supervisor.
(2)There were no defined procedures as to who should have overall control.
(3)The workers were directed by the production supervisor to commence cleaning the belt.
(4)There was no specific system of belt cleaning.
(5)There had been no job safety analysis.
(6)There was no clear control between the plant supervisor or the maintenance supervisor."
After hearing argument the learned Magistrate refused the application to substitute these particulars for those which had previously been rendered, ruling that such further and better particulars would be an amendment to the complaint and such an amendment could not be allowed as the limitation period within which the complaint could be brought had expired. Wheeler J pointed out in her reasons that the learned Magistrate had posed the wrong question in relation to this aspect of the case. He considered the question to be whether there was "a new complaint" when in fact it was not a complaint but a "proceeding for an offence" which was to be commenced within 12 months under s 97 of the Act and the question which should have been answered was whether the proposed amendment to the particulars would result in the substitution of a different offence from that charged. Wheeler J considered that the amendment would not have had that effect as self‑evidently, the complaint would still have been one in respect of an offence pursuant to s 9 of the Act and the relevant failure would still have been the failure to make arrangements pursuant to s 9(1)(e). Her Honour said:
"… the complaint would still have been one in respect of an offence pursuant to s 9, and the relevant failure would still have been the failure to make arrangements pursuant to subpara (1)(e), and the relevant omission would still have been the omission to ensure that belt clamps were used. What the particulars sought to do was to refer to a 'step' which was alleged to have been practicable, which could have been taken to ensure that the clamps were used."
Her Honour considered that whilst the learned Magistrate would have been entitled to disallow portions of the further and better particulars proposed on the basis that as expressed they were too broad, and appeared to go beyond the matters indicated by counsel for the appellant (in opening), there was an error in refusing to permit the further particulars en bloc. In reaching her conclusion as to whether the amended particulars would have substituted a different offence from that charged, Wheeler J relied upon R v Wakeley [1920] 1 KB 688. In that case, an amendment to an information charged the offence of unlawful carnal knowledge as having occurred on a different date from that originally charged. That amendment was held not to be "the commencement of the prosecution" which had taken place when the information was originally laid. The amendment did not charge a different offence from that charged in the information and the dates inserted in the amended information were all within the limitation period. Wheeler J also made reference to Chaudhary v Ducret (1986) 67 ALR 463 where proceedings had been commenced by way of information and summons for breaches of the Trade Practices Act 1974 (Cth) and Crimes Act 1914 (Cth). Particulars of each of the breaches were provided but more than one year after the alleged commission of the offences (the time limited for commencing the prosecutions) the prosecutor sought to amend the particulars of each offence. The trial Judge allowed those amendments and on appeal it was held in the full Federal Court that the fresh particulars did not create different offences. Davies J (at 473) put it this way:
"It is true that these two paragraphs raise different issues and require proof of different facts. However, that is not to say that a new or different offences has been charged. As Fisher J said in Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425 at 444; 37 ALR 365 at 381: 'The distinction between the offence charged and the conduct which may or may not amount to such an offence is the key to this problem. The charge must be sufficiently and unequivocably identified in the information, whereas particulars and further and better particulars may be given from time to time to better identify and distinguish the conduct from other transactions and occurrences (see per Dixon J in Johnson v Miller (1937) 59 CLR 467 at 490).' "
In my view, the cases relied upon by Wheeler J amply support her view that the prosecution was not seeking to substitute a different offence from that charged.
However, a wider question which arises is whether, in the circumstances, the learned Magistrate ought to have allowed such an expansion of the prosecution case by way of further and better particulars as was proposed. The power to allow substitution of the particulars was certainly there. It was, however, a matter of discretion and the question of what prejudice the appellant would suffer was uppermost in consideration of whether or not to allow the expansion of the particulars. In Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998, Anderson J (with whose judgment Franklyn and Ipp JJ agreed) identified the importance of particulars and of confining the prosecution to the particulars which had been rendered prior to trial. The case involved a prosecution under the provisions of s 19 of the Occupational Safety and Health Act 1984, the provisions of which are in very similar terms to those of the Act. Anderson J pointed out the importance of proper particulars in prosecutions of this nature, saying (at 8 ‑ 9):
"… it is necessary to turn to the particulars of the charge against the appellant to see how it is said that the appellant was in breach of the Act - to see exactly how the prosecution alleged that the appellant was criminally responsible for the events which happened by which the deceased was killed. The importance of proper particulars in a case such as this cannot be overstated. As Pidgeon J said in Interstruct Pty Ltd v Wakelam [1990] 3 WAR 100 at 118 in the context of a prosecution under s19(1):
'There is only the one offence of failing to provide the defined environment. However, one would expect an offence of this nature to be particularised and if particularised that is the offence the defendant is required to answer, and it would not be open to introduce evidence beyond particulars without amendment or to convict the defendant of an offence where the omissions to establish the offence are clearly outside the defined particulars.'
This is not the occasion to consider the correctness of the proposition that s19(1) creates only one offence, but the point remains that because there is an almost infinite variety of circumstances which may be alleged to constitute a breach of the duty prescribed by s19(1), the provision of proper particulars is essential to ensure a fair trial. No person should be punished for an offence unless the specific charge against him is distinctly stated, so that it may be answered."
Although the point being dealt with by Anderson J was somewhat different, in that it went to the adequacy of the particulars which were given (his Honour concluding that the lengthy particulars given were uninformative as to what the prosecution case really was and the complaint was open to the objection that it was fundamentally deficient in failing to identify the essential factual ingredients of the offence charged), the case highlights the importance of particulars and the necessity that the prosecution be confined to the particulars given.
Although (as recognised in Bunning Forest Products (supra)), there is always a power to allow amendment of particulars, in the present case the proposed amendments would in my view have widened the prosecution case to the point where the appellant would have been called upon to face a different case from that which had been first particularised. In all the circumstances of the case it is my view that the learned Magistrate would have been right to have refused leave to amend the particulars and to have confined the prosecution to presentation of the case as originally particularised. This was recognised by Wheeler J, although her Honour considered that by reason of the erroneous way in which the learned Magistrate had approached the question of amendment, it was one of the reasons why the case should go back for re‑hearing. Because I am of the view that it was open to the learned Magistrate to reject the application for amendment of particulars, I cannot agree that on the basis that the learned Magistrate erroneously refused the amendment (not as a matter of discretion but by reason of his understanding of the effect on the original complaint), the matter should go back for re‑hearing. In my view, the prosecution ought to have been bound by the particulars first rendered and to have presented the case on that basis. As it happened, this is essentially what occurred. The learned Magistrate having disallowed the proposed amendment to the particulars, the matter was adjourned and upon resumption some months later, a statement of agreed facts was tendered and this formed the basis of the prosecution case. Those facts were in the following terms:
"STATEMENT OF AGREED FACTS
1.On 19 January 1997 the following persons were employees, or were deemed pursuant to s9(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.
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.
3.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 fracture 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."
Evidence to supplement this statement of agreed facts was led from one Rapana who (after much objection) finally testified in the following terms:
"MR SEFTON: Yes.
(TO WITNESS): After you had been working at Yandi 1, where did you then go? --- Well, we all jumped into the troopy and ---
HIS WORSHIP: Jumped into? --- The troopy.
Troopy.
MR SEFTON: What's that? --- Troop carrier.
Can you explain? --- The troop carrier. It's a vehicle that takes us to and from site from the camp. We went from Yandi 1 to Yandi 2. There's about two troopies that went over that day.
Approximately how many workers were at Yandi 2 when you arrived at the conveyor at CV202? --- We -- we normally have -- for day shift they -- we normally have about ---
MR CLIFFORD: Well, no speculation. The question was how many were there. The answer is normally.
MR SEFTON: If you can just indicate from recollection approximately how many people were there. If you were unable to recollect, indicate? --- Well, how many people were there all up. I'd say eleven, twelve.
Why did you commence work removing ore on the conveyor? --- Whey did we --- well, the conveyor had snapped --- well, split, snapped. We all had to go and tag out, put our personal danger tags on to isolate the machine, which we did, and then the supervisor just told us to get up there."
Objection was then raised to Rapana giving evidence of what any supervisor had told him. The objection was based upon the fact that the witness was giving "hearsay evidence". It was further put that the learned Magistrate had already ruled that because the particulars could not be widened there could be no evidence of any instruction which was given to Rapana. This submission the learned Magistrate agreed with, causing counsel for the respondent to say that he would take the matter no further.
However, the basis of the objection was clearly wrong. The evidence was not hearsay and the evidence ought properly to have been admitted. In the context of this appeal, it is to be considered as evidence properly led by the prosecution. Rapana's evidence continued as follows:
"MR SEFTON: For approximately how many years had you worked at the Yandi mine site prior to this accident occurring?
MR CLIFFORD: Well, objection on the ground of relevance.
MR SEFTON: The relevance is in relation to this worker's experience of the use of belt clamps previously at the mine site.
HIS WORSHIP: I'll allow it.
MR SEFTON: So for what period of time prior to the accident, approximately, had you worked at the mine site? --- 95.
Since 1995? --- 95, on that particular site; yes.
And was your employment as a plant operator during that period of time? --- Yes.
And as a plant operator, had you on any previous occasions assisted in removing ore from conveyors where the conveyor belts had snapped? --- Yes. I have, yes.
On approximately how many occasions? --- Four times I'd say.
And in relation to --- from your own observations, on approximately how many occasions during the period of time that you worked at the Yandi mine site did conveyor belts snap? --- I'd say about four or five times.
In your experience, were there any particular steps taken in those previous occasions that you observed to secure the snapped belts? --- No. We just --- we were just told to just tag out, and once you've tagged out, we've done the job. We've isolated the problem, and we just get up and we move the ore from the belt so the fitters can --- or whatever --- can do whatever they want to do with the belt - splice it.
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 conveyors? --- Yes.
MR SEFTON: 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 to five times I've seen it.
And can you describe to the court - I've talked about a belt clamp - what a belt clamp is? --- Belt clamp. It's --- it's just like that. It's two bits of metal with rubber in between them. You put it on and they got long screws on the end, and you just tighten it up and that will stop the both of them going back, falling back or --- falling back this way in reverse. That's all a clamp does. It just stops it from moving."
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 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."
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 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 s5(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 s16(1), are to be construed in 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:
"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. 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."

I respectfully agree with these conclusions.
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."
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 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.
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)."
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 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.
The question which now arises is whether the case should be sent back to a different Magistrate for re‑hearing, or whether it should be remitted to the learned Magistrate who heard the matter in Karratha with a direction that it be heard according to law. Counsel for the appellant argues that the matter should not be remitted at all, pointing to the fact that in Meikleljohn v Central Norseman Gold Corporation Ltd, unreported; SCt of WA; Library No 960656; 20 November 1996, there was a refusal to allow an amendment which sought more than six months after the alleged offence to substitute a different charge. Scott J considered that an amendment at that stage of the proceedings would cause a manifest injustice to the respondent who would be forced to return to the matter some two years after the event alleged with the necessity of having to find the appropriate evidence at such a late stage. To avoid such injustice his Honour dismissed the appeal, notwithstanding that the appellant had succeeded on the main argument in the case. In the Full Court (Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298, Anderson J, (with whom Walsh and Owen JJ agreed) considered that Scott J was amply justified in refusing to allow the amendment in view of the lapse of time that occurred. It seems to me, however, that this is a different question from that which faces this Court. There is no question here of any amendment to the complaint creating any prejudice to the appellant. To the contrary, amendment to the particulars has been refused and, in my view, ought not now be resurrected. There was, however, on any view of it, a case for the appellant to answer at trial. That was the case which was originally formulated in the complaint and particulars. It was that case which the appellant went to the Court of Petty Sessions at Karratha to answer. Notwithstanding the lapse of time caused by the appellate proceedings, it seems to me that the appellant is still in as good a position as ever to answer the charge which it has at all times faced. For this reason it is my view that the matter should be remitted to the learned Magistrate in the Court of Petty Sessions Karratha for re‑hearing according to law, with a direction that there is a case for the appellant to answer. The appeal from her Honour should therefore be allowed in part in that I am of the view that the matter should not be remitted for a complete re‑hearing.