Langmaid v Millhouse
[2001] TASSC 58
•18 May 2001
[2001] TASSC 58
CITATION: Langmaid & Anor v Millhouse [2001] TASSC 58
PARTIES: LANGMAID, Kevin George
LANGMAID, Andrew Kevin
v
MILLHOUSE, Robert Alexander
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 19/2000
DELIVERED ON: 18 May 2001
DELIVERED AT: Hobart
HEARING DATE: 3 May 2001
JUDGMENT OF: Cox CJ
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Costs - Power to award - Grounds for award of costs to accused persons - Factors to be considered - How requirement that applicant established that he was not guilty to be demonstrated.
Costs in Criminal Cases Act 1976 (Tas), s4.
R v Freshney [1977] Tas SR 126, followed.
R v Powell [1985] Tas R 63; R v Burles A71/1990, considered.
Aust Dig Criminal Law [931]
REPRESENTATION:
Counsel:
Applicants: C F McKenzie
Respondent Prosecution: J Ransom
Solicitors:
Applicants: McLean Phillips & Bartlett
Respondent Prosecution: Director of Public Prosecutions
Judgment Number: [2001] TASSC 58
Number of paragraphs: 13
Serial No 58/2001
File No LCA 19/2000
KEVIN GEORGE LANGMAID and ANDREW KEVIN LANGMAID
v ROBERT ALEXANDER MILLHOUSE
REASONS FOR JUDGMENT COX CJ
18 May 2001
This is an appeal against the refusal of a magistrate to order the payment of the applicants' costs pursuant to the Costs in Criminal Cases Act 1976 ("the Act") when the complaint against them was dismissed. The Act, s4, provides:
"4 ¾ (1) Subject to this Act, where a person having been charged with an offence is discharged from the proceedings in respect thereof, that is to say, where—
(a) he is acquitted of the offence;
(b)the complaint charging him with the offence is dismissed or withdrawn; or
(c) he is discharged upon an indictment for the offence—
the court having the conduct of the proceedings may, upon the application of the defendant, order that he be paid in respect of his defence such costs as it thinks just and reasonable.
(2) The court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular to the following:
(a)Whether the proceedings were brought and continued in good faith;
(b)Whether proper steps were taken to investigate any matter coming to, or within, the knowledge of any person responsible for bringing or continuing the proceedings;
(c)Whether the investigation into the offence was conducted in a reasonable and proper manner;
(d)Whether the evidence as a whole would support a finding of guilt but the defendant is discharged from the proceedings on a technical point;
(e)Whether the defendant is discharged from the proceedings because he established (either by the evidence of witnesses called by him or by cross examination of witnesses for the prosecution or otherwise) that he was not guilty.
(3) No defendant shall be granted costs by reason only of the fact that he is acquitted of an offence, the complaint charging him with an offence is dismissed or withdrawn, or he is discharged upon an indictment.
(4) No defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.
(5) No defendant shall be refused costs by reason only of the fact that in the investigation of the offence with which he had been charged he remained silent or refused to assist in respect thereof."
The applicants were charged by complaint dated 4 February 1999 with four offences alleged to have been committed by them on 4 February 1998. They arose out of the death by electrocution that day of one of their employees, Mr Wing, who was engaged in the course of his employment on the erection of an extension to the applicants' business premises. Mr Wing had been drilling holes in metal roof purlins using an electric drill which in fact belonged to him. The applicants' business is the supply, storage, grading and cutting of seed potatoes for farmers throughout the State and their premises include a cool store complex which was being extended, using the services of some of their employees. As I understand it, Mr Wing was not an electrical tradesman, but was a permanent employee engaged to undertake minor maintenance work for the applicants. Electrical contractors had been engaged periodically to install and upgrade electrical installations such as switchboards and wiring and to supply electrical equipment. The drill in question had been used without incident shortly prior to the accident when it appears the active conductor became detached from its terminal within the handle of the drill and came into contact with the earth metal in the switch mechanism and Mr Wing was fatally electrocuted.
The complaint alleged the following four offences:
"1 That on or about 4th February, 1998 the defendants Kevin George Langmaid and Andrew Kevin Langmaid, being at all material times the employers within the meaning of the Workplace Health and Safety Act 1995 of Warren Thomas Wing ('Wing') at a workplace, being a building situated at Cherry Hill Road, Latrobe in Tasmania, did fail in respect of Wing to ensure so far as was reasonably practicable that he was, while at work at the said workplace, safe from injury and risks to his health and, in particular, did fail to provide and maintain so far as was reasonably practicable a safe working environment, further particulars of such failures being set out below, when on or about the said date at the said workplace Wing, in the process of drilling holes in roof purlins with an electric drill, whilst standing in a potato box suspended on raised forklift truck tines, and with his back in contact with metal framework, was electrocuted, CONTRARY to Section 9 (1) (a )(i) of the said Act.
FURTHER PARTICULARS
i) Providing Wing with, or allowing him to use, an electric drill, ie; a single insulated, metal cased, Skil Sher Powermatic drill with a blunt half inch bit, that was hazardous to use because of its potential to cause electrical shock to its operator by virtue of its generally poor and aged condition, including a partially or wholly disconnected power wire within the switch mechanism, thereby causing the drill housing to become live, the blunt bit requiring Wing to brace himself against the metal framework under which he was working to drill the holes in the purlins, thereby earthing himself.
ii) Installing or causing to be installed an electrical switchboard within the said workplace which was not in good and safe condition and not in compliance with AS 3000, in particular not providing effective earthing, so as to reduce or eliminate the likelihood of electrical shock to persons using power tools within the said workplace, there being no multiple earth neutral connection at the switchboard and the laid up earthing conductor in the sub main leading to the said workplace being cut out.
(iii) Failing to provide a residual current device (RCD) for use with power tools being used within the said workplace in accordance with AS/NZS 3012
ALTERNATIVE CHARGE TO CHARGE 1
2 That on or about 4th February, 1998 the defendants Kevin George Langmaid and Andrew Kevin Langmaid, being at all material times the employers within the meaning of the Workplace Health and Safety Act 1995 of Warren Thomas Wing ('Wing') at a workplace, being a building situated at Cherry Hill Road, Latrobe in Tasmania, did fail in respect of Wing to ensure so far as was reasonably practicable that he was, while at work at the said workplace, safe from injury and risks to his health and, in particular, did fail to provide and maintain so far as was reasonably practicable plant and substances in a safe condition, further particulars of such failures being set out below, when on or about the said date at the said workplace Wing, in the process of drilling holes in roof purlins with an electric drill, whilst standing in a potato box suspended on raised forklift truck tines, and with his back in contact with metal framework, was electrocuted, CONTRARY to Section 9 (1) (a) (iii) of the said Act.
FURTHER PARTICULARS
i) Providing Wing with, or allowing him to use, an electric drill, ie; a single insulated, metal cased, Skil Sher Powermatic drill with a blunt half inch bit, that was hazardous to use because of its potential to cause electrical shock to its operator, by virtue of its generally poor and aged condition, including a partially or wholly disconnected power wire within the switch mechanism, thereby causing the drill housing to become live, the blunt bit requiring Wing to brace himself against the metal framework under which he was working to drill the holes in the purlins, thereby earthing himself.
ii) Installing or causing to be installed an electrical switchboard within the said workplace which was not in good and safe condition and not in compliance with AS 3000, in particular not providing effective earthing, so as to reduce or eliminate the likelihood of electrical shock to persons using power tools within the said workplace, there being no multiple earth neutral connection at the switchboard and the laid up earthing conductor in the sub main leading to the said workplace being cut out.
(iv) Failing to provide a residual current device (RCD) for use with power tools being used within the said workplace in accordance with AS/NZS 3012.
3 That on or about 4th February, 1998 the defendants Kevin George Langmaid and Andrew Kevin Langmaid, being at all material times the employers within the meaning of the Workplace Health and Safety Act 1995 of Warren Thomas Wing ('Wing') at a workplace, being a building situated at Cherry Hill Road, Latrobe in Tasmania, did fail insofar as was reasonably practicable to monitor working conditions at the said workplace, being under their control or management, further particulars of failure being set out below, when on or about the said date at the said workplace Wing, in the process of drilling holes in roof purlins with an electric drill, whilst standing in a potato box suspended on raised forklift truck tines, and with his back in contact with metal framework, was electrocuted, CONTRARY to Section 9 (2) (h) of the said Act.
FURTHER PARTICULARS
i) Failing to test or have tested an electric drill in accordance with AS/NZS 3760:1996, ie; a single insulated, metal cased, Skil Sher Powermatic drill with a blunt half inch bit, that was hazardous to use because of its potential to cause electrical shock to its operator, by virtue of its generally poor and aged condition, including a partially or wholly disconnected power wire within the switch mechanism, thereby causing the drill housing to become live, the blunt bit requiring Wing to brace himself against the metal framework under which he was working to drill the holes in the purlins, thereby earthing himself.
ii) Failing to test or have tested or examine or have examined an electrical switchboard within the said workplace which was not in good and safe condition and not in compliance with AS 3000, in particular not providing effective earthing, so as to reduce or eliminate the likelihood of electrical shock to persons using power tools within the said workplace, there being no multiple earth neutral connection at the switchboard and the laid up earthing conductor in the sub main leading to the said workplace being cut out.
4 That on or about 4th February, 1998 the defendants Kevin George Langmaid and Andrew Kevin Langmaid, being at all material times the employers within the meaning of the Workplace Health and Safety Act 1995 of Warren Thomas Wing ('Wing') at a workplace, being a building situated at Cherry Hill Road, Latrobe in Tasmania, and the occupiers of the said workplace, did fail to cause electrical equipment in the said workplace, ie a Skil Sher Powermatic drill, to be maintained so as to obviate the risk of electrical shock, when on or about the said date at the said workplace Wing, in the process of drilling holes in roof purlins with the said drill, whilst standing in a potato box suspended on raised forklift truck tines, and with his back in contact with metal framework, was electrocuted, CONTRARY TO regulation 38 (2) of the Industrial Safety Health and Welfare (Administrative and General) Regulations 1979."
The solicitors for the applicants, prior to the trial of the complaint, made a number of submissions to the prosecuting authority, which was represented by an officer within the Office of the Director of Public Prosecutions. In a letter dated 15 December 1999, they wrote advising that they had instructions to vigorously defend the charges and asserted that in their opinion the evidence was weak. They said that if the prosecution failed, they anticipated being instructed to make an application for costs under the Act. On 31 January 2000, they referred to a verbal discussion that day with the prosecutor's counsel and confirmed having received expert advice that normal testing of the drill would not have revealed the type of fault which the Workplace Standard Inspectors believed caused the accident. On 15 February 2000, Mr Neasey of Senior Crown Counsel advised that the prosecution would maintain counts 1, 2 and 4, but in relation to counts 1 and 2, only particular 3 would be relied upon. By letter of even date, the applicants' solicitors advised:
"You cannot succeed on counts 1 and 2, particular (iii). There is no legislation by which compliance with this standard is required. The only mandatory standard is AS3000: 1991. AS3000 specifically states that compliance with AS/NZS3012 is not a requirement of AS3000. A reasonable person reading the mandatory standard could not be regarded as acting unreasonably by following the specific statement in the mandatory standard that compliance with AS/NZS3012 is not required.
Further in relation to count 2 we do not see how provision of an RCD is relevant to an allegation that our client failed to provide and maintain plant and substances in a safe condition. If you accept that you can't prove that the drill was hazardous then the provision of an RCD is irrelevant because it is additional equipment not part of the drill.
In relation to count 4 you have not specified what maintenance was required. We request particulars thereof. We note that our clients had no right to maintain the drill because it didn't belong to them.
We would be pleased if you would contact the writer when you have considered these matters."
On 14 March 2000, the following particulars of "maintained" in count 4 were supplied:
"By failing to keep in continued good repair the switch mechanism of the Sher Powermatic drill (the drill) such that the active power wire became detached from the switch and came into contact with the metal drill casing, causing the drill to become live."
The matter came on for hearing on 2 March 2000 and Crown counsel indicated to the magistrate that the prosecution sought to prove only count 1, relying on particular (iii) only and count 4. The other two charges were thereupon dismissed. Argument then took place that the regulation upon which count 4 relied was ultra vires. This submission was rejected by the learned magistrate and the trial of the remaining two charges commenced on 23 March 2000. At the conclusion of the prosecution evidence, the applicants' counsel submitted that there was no case to answer on either charge. The learned magistrate reserved his decision and on 2 May 2000, upheld the submission in respect of count 4, which he then dismissed, but rejected it in respect of count 1, saying:
"I am satisfied that there is sufficient evidence to support a finding that it was reasonably practicable for the applicants to have provided a residual current device (RCD), such a device being freely available, not an obscure one or one of recent invention."
He said they had been around on the market in one form or another for many years. He said he believed the evidence was capable of supporting a finding on count 1 and that a properly instructed jury could convict on that count.
On 4 July 2000, the applicants both gave evidence and addresses were made to the learned magistrate. In a reserved decision delivered on 21 August 2000, the learned magistrate made the following observations and findings:
"It is common ground that on the day in question Mr Wing, an employee of the [applicants], was electrocuted whilst using an electric drill. He was engaged in the construction of the roof for an extension of the [applicants'] premises.
As a result of receiving an electric shock Mr Wing fell from the box he had been standing in but it is clear on the evidence that the fall itself did not contribute to his death.
I have considered the evidence given by Mr Jones as to the cause of Mr Wing receiving the electric shock. Counsel were divided as to the effect of this evidence. Whilst I agree with Mr McKenzie that it is not really an issue and certainly nothing turns on it I am satisfied that the most likely cause of the drill becoming live was the active conductor becoming detached from its terminal within the handle and coming into contact with the earth metal in the switch mechanism. It is true that Mr Jones proffered other possibilities but the impression I gained from his evidence was that this was the most likely cause. He then went on to explain how devices known as residual current devices (RCD's) can work to prevent electrocution. He said, and it is conceded by the [applicants], that no RCD's were installed at the site on the day in question.
It is clear on the evidence that the provision of an RCD within this workplace, whilst recommended in the relevant standard, had not reached the stage of being a legal requirement. However, I do not accept that this is an end to the matter as Mr McKenzie suggests. I do not regard that as being an essential element of the charge.
Clearly, the issue here is whether the prosecution has established beyond reasonable doubt that it was reasonably practicable for the [applicants] to have provided an RCD.
In my opinion, Mr McKenzie's analysis of Mr Crichton's evidence is too literal. It was not the impression I gained at the time whilst listening to the evidence.
Having considered the evidence of Mr Crichton I am satisfied that as at the date of this incident RCD's were available in the market place. However, it is equally clear on the evidence that an RCD is not a particularly well known device. Obviously they were known of by persons in the electrical trade and could be found in retail outlets by those sufficiently knowledgable to seek them out. The prosecution have however failed in my view to prove that the [applicants] fell into that category.
The Act uses the words 'reasonably practicable'. The word 'reasonably' 'has a definite function in limiting or qualifying what would otherwise be almost an absolute obligation' (see Walters J in Landell v Reed 28 SASR 253 @ 255).
The evidence in this case clearly establishes that the [applicants] did not know of the existence of RCD's at the relevant time.
I am far from persuaded on the evidence that they ought to have known of the existence of these devices.
I have considered the authorities cited by Mr McKenzie and Mr Ransom however I have not derived much guidance from any of them. This particular case turns on its own facts.
As I am not satisfied beyond reasonable doubt that it was reasonably practicable for the [applicants] to have provided an RCD the charge is dismissed."
Messrs Jones and Crichton were electrical inspectors called by the prosecution.
After further argument on the application of the successful defendants for costs, the learned magistrate ruled on 1 November:
"… this is an application for costs made pursuant to Section 4 of the Costs in Criminal Cases Act 1976.
The Defendants were jointly charged with one breach of S 9 (1)(a)(1) of the Workplace Health & Safety Act 1995 and a breach of Reg 38 (2) of the Industrial Safety Health & Welfare (Administrative & General) Regulations 1979.
At the conclusion of the prosecution case I ruled that the Defendants had no case to answer on the charge under the Regulations.
Both Defendants then gave evidence which I accepted that prior to the accident they did not know of the existence of RCD's amongst of course many other things.
I went further to find that the evidence did not satisfy me that they ought to have known of the existence of those devices and after further consideration I dismissed count 1 as well.
This matter has had a lengthy history. First I heard and determined a submission that Reg 38 was ultra vires, then I considered the no case submission and finally the ultimate issue on Count 1. The prosecution case was not particularly strong, however, I am not persuaded that the matter was not properly investigated or that the matters raised by Mr McKenzie in his correspondence were so definitive that the prosecution should never have been taken or continued. I agree with the effect of Mr Ransom's submission that these were matters which required to be prosecuted.
I have considered the relevant matters raised by S 4 (2)(3)(4) & (5) of the Act together with the authorities referred to by counsel in their most helpful submissions.
R v Freshney (1977) Tas SR 126 is still in my opinion, the binding authority. At page 128 His Honour detailed six points for consideration on an application under S 4 (2). I do not pause to set those out but it is clear from Cosgrove J's decision that paragraphs (a) ‑ (e) of subsection (2) looked at individually are not conclusive. I may find that the elements of one paragraph have been made out but not of others. That in itself will not activate what is basically an unfettered discretion.
Cosgrove J said in R v Freshney (supra) at p 128 and I quote:‑
'The statute does not in terms refute or abrogate the long standing principles of public policy that (a) criminal trials are for many reasons not to be equiparated with contests between civil litigants and (b) that acquitted persons are not entitled to costs, an acquittal not being a declaration of innocence (so much is almost spelt out in the section).
It seems to me to follow that the power is not to be exercised unless there is some positive reason for doing so; some circumstance or consideration which activates the discretion (cf the authorities dealing with the discretion to extend time).
Because the emphasis is on justice, inefficiencies in investigation or irregularities in procedure would not of themselves activate the discretion. There must be some circumstance other than acquittal which, whether or not it is based on error, inefficiency, or irregularity, gives the applicant a just claim on the community for payment of his costs.'
R v Freshney (supra) was considered by Underwood J in Coleman and Wholgemuth v Harper 30/1992. It was argued in this case that since the High Court decision in Latoudis v Casey (1990) 97 ALR 45 R v Freshney was no longer good law. Underwood J rejected that argument and said at page 6:‑
'The High Court's interpretation of a statutory provision common to all Australian jurisdictions except Tasmania, is not authoritative as to the manner in which the discretion should be exercised under Tasmanian legislation which is expressed in unique terms.'
In my opinion Cosgrove J's analysis of the section in R v Freshney (supra) is the appropriate way for this Court to resolve this application. I have considered this matter and for the reasons and in the circumstances outlined above I have come to the conclusion that the Defendants have not made out 'some positive reason' as to why I should exercise my discretion in their favour and accordingly I propose to dismiss the application for costs and do so."
At the forefront of the applicants' attack on the learned magistrate's decision is the proposition that they came within the ambit of the Act, s4(2)(e), that is, that they had established that they were not guilty of either of the counts which were tried on their merits. In R v Powell [1985] Tas R 63, Neasey J said at 67:
"'That he was not guilty' means in my view, 'that on the evidence before the court he should be found not guilty'. It does not mean establishing positively his actual innocence of the charge. I think R v Walters (1978) Tas SR 122 supports that view; but, with respect, I doubt whether any formal onus of proof is involved as was held in that case. I think 'established ... that he was not guilty' simply means that the applicant must produce an affirmative persuasion in the mind of the judge that he was not."
In R v Burles A71/1990 at 10, Zeeman J expressed some difficulty with those views, perceiving there to be a difference between "on the one hand satisfying a trial judge 'that on the evidence before the court an accused should be found not guilty' and on the other hand 'to produce [sic] an affirmative persuasion in the mind of the judge that the accused was not guilty'", those expressions apparently having been treated by Neasey J as being interchangeable. Zeeman J went on, at 11:
"The difficulty I have arises as follows. A trial judge may be persuaded that an accused person should be found not guilty. That view may be as the result of being persuaded that the state of the evidence is such that there must inevitably be engendered in the mind of a reasonable juror a reasonable doubt as to the guilt of the accused. However, it would not be unreasonable for a trial judge to hold that view without being affirmatively persuaded that an accused is not guilty in the sense of being innocent."
In the present case, the learned magistrate, in respect of count 1, narrowed the issue down to whether the prosecution had proved beyond reasonable doubt that the applicants knew or ought to have known of the existence of the device known as an RCD. He seems to have taken the view that if they did have that knowledge, or ought to have had it, their failure to provide an RCD amounted to a failure to provide and maintain, so far as was reasonably practicable, a safe working environment. There has been no attack on this approach. The learned magistrate expressed himself satisfied after hearing their evidence that the applicants did not have that knowledge, but in contradistinction to his positive statement that "the evidence in this case clearly establishes that the [applicants] did not know of the existence of RCD's at the time", said "I am far from persuaded on the evidence that they ought to have known of the existence of those devices". He was thus left in a state of not being "satisfied beyond reasonable doubt that it was reasonably practicable for the [applicants] to have provided an RCD". As Zeeman J said in R v Burles (supra), at 12:
"As a matter of law an accused person ought to be acquitted if a reasonable doubt is engendered in the minds of the members of the jury. That in itself is not sufficient to justify an exercise of the discretion because of the provisions of s4(3). If the evidence goes further and satisfies the trial judge that the members of the jury ought to have a reasonable doubt then the accused person has brought himself within s4(2)(e)."
Thus s4(2)(e) applies where the judge presiding at a jury trial or magistrate sitting as the tribunal of fact is affirmatively satisfied of innocence, or is satisfied that a tribunal of fact, even though there is a case to answer, ought to have a reasonable doubt. Before it can apply, the situation must be such that it goes beyond the stage where reasonable people might properly entertain different conclusions as to guilt and reach that where a conclusion of innocence or reasonable doubt as to guilt is the only reasonable outcome. The learned magistrate did not express a conclusion of innocence on the issue whether the applicants ought to have known of the existence of the device, nor on the evidence could it be said that satisfaction beyond reasonable doubt would have been an unreasonable conclusion. Whether or not they ought to have known involved an enquiry not merely into the availability of the device and the type of persons who had acquired it. It involved a consideration of the nature of the task to be performed by the applicants' employee and the circumstances in which it was to be performed. In the circumstances, it was open to the learned magistrate to have been persuaded beyond reasonable doubt that the applicants failed to make appropriate enquiries as to the precautions which were reasonably practicable to take. It could not be said that a finding of guilt was unsafe and unsatisfactory because, notwithstanding the existence of a prima facie case, the tribunal ought to have entertained a reasonable doubt. Although the learned magistrate did not dissect or analyse the nature of his doubt nor indicate how it arose, his ruling on the application clearly enough indicates that he did not regard s4(2)(e) as providing any positive reason for making the order, at least so far as the fate of count 1 is concerned.
Count 4 is in a different category, however, for there, after a hearing on the merits, the prosecution failed to establish a case to answer. No other result than a verdict of not guilty was appropriate to that charge and hence the applicants, in my view, came within the purview of s4(2)(e) in respect of it. That on its own would not have required the exercise of the learned magistrate's unfettered discretion in favour of the applicants. A judgment has to be made having regard to all the circumstances, including the existence of other charges and the relative importance of each charge. It could be that the learned magistrate rightly regarded count 4 as a subsidiary charge and count 1 as the major charge and the time devoted to its prosecution and defence of little moment in comparison with count 1. Further matters pressed as reasons why the learned magistrate ought to have exercised his discretion in favour of the applicants were the matters set out in s4(2)(b) and (c). No argument was pressed in respect of pars(a) and (d). Paragraphs (b) and (c) are each concerned with the propriety of investigation. It was submitted that the matter was not properly investigated and that when deficiencies in the prosecution case were pointed out by the applicants' solicitors, the prosecution ought to have been terminated. The further investigations suggested were enquiries of the applicants as to the state of their knowledge of RCDs. On 22 May 1998, each of the applicants had been spoken to by an inspector appointed under the Workplace Health and Safety Act 1995. That Act, s37(1)(b), provides that it is an offence, without lawful excuse, to refuse or fail to answer a question asked by an inspector under that Act; and by subs(3) thereof it is provided that a person is not excused from answering any such question on the ground that the answer might tend to incriminate that person. Subsection (4) goes on to provide that in proceedings for an offence against that Act, any answer given to an inspector pursuant to such a requirement is not admissible in evidence against the person giving the answer if that person claims, before giving the answer, that the answer may tend to incriminate him or her. The inspector therefore had power to insist upon answers to his questions, but misunderstanding his authority, told each of the applicants in turn that he intended to ask some questions, but that they were not obliged to say anything unless they wished to do so and that anything they said might be given in evidence. Mr Kevin Langmaid, the first of the applicants interviewed, then said:
"I have talked to a Solicitor and the Solicitor has informed me that I am obliged to answer all your questions but in so doing they may be incriminative [sic] to me but providing that I make this interview aware that that is the intention, it shouldn't be able to be used as evidence against me."
The inspector then said, "Under those conditions I think we need to terminate this interview at this stage" and being asked why, said, "I can't see any point in going on with the interview under those conditions". A similar exchange occurred between the inspector and Mr Andrew Langmaid shortly thereafter.
Mr McKenzie submitted that the inspector could have pursued further investigations as to the applicants' knowledge of the existence and use of RCDs and that although the answers given might not have been admissible, they might have revealed sources of information on the topic which the prosecutor may have been able to prove by some other means, or might have led to the prosecutor being satisfied that it was not appropriate to contend that the applicants knew or ought to have known of the devices. I think it is quite speculative as to what might have been opened up had the inspector been aware of his authority and the restrictions upon the use to which any answers given by the applicants might be put. I do not think it has been shown that there was any failure on the part of any person responsible for bringing or continuing the proceedings to investigate any matter coming within the knowledge of that person, or that the investigation was conducted otherwise than in a reasonable and proper manner.
As to the representations made by the applicants' solicitors, I do not think the learned magistrate's observation that the matters raised by the applicants' solicitors in their correspondence were not so definitive that the prosecution should never have been taken or continued can be said to be erroneous in any way. The prosecutor took account of some of the representations, it would appear, and pruned the matters of complaint down to the two basic allegations contained in count 1, par(iii) and count 4. As to the latter, the learned magistrate took the view that the obligation to maintain the drill so as to obviate the risk of electrical shock did not involve a duty to ensure that the drill would not produce an electrical shock, but required a response to any risk that it might do so by remedying any fault which was or could be detected. The evidence failed to show definitively how the drill became live and hence what maintenance could have prevented the malfunction.
Other circumstances submitted by the applicants to be relevant were the fact that the matter had been protracted and that the case was of such a nature as to realistically require the retention of counsel and the procurement of expert advice on electrical matters. In Coleman & Anor v Harper A34/1993, the Full Court upheld an appeal against the refusal of costs where the prosecutor tendered no evidence at a hearing scheduled 13 months after the institution of proceedings. The prosecutor indicated to the magistrate that he did not oppose the making of such an order. Green CJ listed four considerations as militating strongly in favour of the granting of the application. At 4, he listed them as follows:
"1The proceedings had been on foot for over a year before they were finally determined and during that period the respondent expressly declined to exercise the power he possessed to discontinue the proceedings pursuant to the Forestry Act 1922, s45(2).
2The complaint was dismissed because the respondent presented no evidence in support of it.
3The respondent did not oppose the applications.
4The respondent presented no evidence or materials militating against the granting of the applications."
The other two members of the court, Wright J and Zeeman J, while agreeing with the result, expressed no reliance upon the protracted nature of the proceedings. In some cases, such a fact may amount to a relevant circumstance for the purposes of the opening words of s4(2), but I do not regard it as universally relevant and can see no reason why it should be so regarded in this particular case. It was a serious matter that an employee had been fatally injured at his workplace, operating tools and undertaking work of a nature which was not part of his employers' ordinary business. The use of a residual current device would have eliminated the risk of electrocution and was a device readily available and known to those in the electrical trade. The applicants had chosen to utilise the services of one of their own maintenance men for work on extensions to their building and had not adverted to the possibility of any risk of electrocution. No doubt the protracted nature of the proceedings led to an increase in emotional strain and financial cost to the applicants in defending themselves; but ordinarily the complexity or length of a case with its emotional and financial consequences would not be a reason sufficient in itself to justify the making of an order. As Cosgrove J said in R v Freshney [1977] Tas SR 126 at 128 in the passage already cited from the learned magistrate's reasons for judgment:
"There must be some circumstance, other than acquittal which … gives the applicant a just claim on the community for payment of his costs."
The fact that the applicants needed legal representation and expert advice likewise does not seem to me to be a relevant factor, at least in the circumstances of this case. It is rather a matter relevant to the reasonableness of the expenses they have incurred and to what costs the court thinks just and reasonable to order be paid if the discretion is activated.
At the end of the day the learned magistrate had to decide whether any or all of the circumstances were such as to show a positive reason why the discretion to require the applicants' costs to be paid by the prosecution should be exercised. It is true that the prosecution had failed to make out a case to answer on count 4, but the matter had been properly investigated and proceedings properly commenced, continued and conducted. A case to answer had been made on the first charge, although the learned magistrate was not satisfied of guilt beyond reasonable doubt. No specific error of law by him has been alleged or demonstrated. The circumstances did not compel the making of the order sought, although it would have been within the learned magistrate's discretion to order payment of some part, at least, of the applicants' costs, having regard to the outcome in respect of count 4 in particular. It has not been shown, however, that he erred in declining to make an order under the Act. The appeal is dismissed.
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