MARINICH (Department of Consumer and Employment) v Van Dyke
[2007] WASC 3
•9 JANUARY 2007
MARINICH (DEPARTMENT OF CONSUMER AND EMPLOYMENT) -v- VAN DYKE [2007] WASC 3
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 3 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | SJA:1087/2006 | 10 NOVEMBER 2006 | |
| Coram: | SIMMONDS J | 8/01/07 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | CRISTY ANNE MARINICH (DEPARTMENT OF CONSUMER AND EMPLOYMENT) VAUGHAN PETER VAN DYKE |
Catchwords: | Criminal law Appeal from acquittal Electricity (Licensing) Regulations 1991 (WA), reg 49(1)(a), reg 65 Compliance with Australian/New Zealand Wiring Rules |
Legislation: | Criminal Appeals Act 2004 (WA), s 9, s 14(1)(b), s 14(2) |
Case References: | Knight v The Queen (1992) 109 ALR 225 Balanzuela v De Gail (1958) 101 CLR 226 Hembury v Chief of the General Staff (1998) 193 CLR 641 Re the State of Western Australia; Ex parte Worswick [2005] WASCA 187 Samuels v Western Australia [2005] WASCA 193 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
VAUGHAN PETER VAN DYKE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R BAYLY
File No : PE 51923 of 2005
Catchwords:
Criminal law - Appeal from acquittal - Electricity (Licensing) Regulations 1991 (WA), reg 49(1)(a), reg 65 - Compliance with Australian/New Zealand Wiring Rules
(Page 2)
Legislation:
Criminal Appeals Act 2004 (WA), s 9, s 14(1)(b), s 14(2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr N C Monahan
Respondent : Mr T Houweling
Solicitors:
Appellant : State Solicitor
Respondent : Cornerstone Legal
Case(s) referred to in judgment(s):
Knight v The Queen (1992) 109 ALR 225
Case(s) also cited:
Balanzuela v De Gail (1958) 101 CLR 226
Hembury v Chief of the General Staff (1998) 193 CLR 641
Re the State of Western Australia; Ex parte Worswick [2005] WASCA 187
Samuels v Western Australia [2005] WASCA 193
(Page 3)
- SIMMONDS J:
Introduction
1 This is an appeal against the dismissal of a charge of breach of regulations under the Electricity Act 1945 (WA) (the "Act"). The regulations in question are the Electricity (Licensing) Regulations 1991 (the "Regulations"), reg 49(1)(a) and reg 65, relating to the carrying out of "electrical work". It was agreed for the purposes of this matter that the carrying out of "electrical work" was involved here.
2 The issues raised by this appeal go to the sufficiency of the evidence before the learned Magistrate to warrant a finding that the respondent was guilty as charged.
3 I first set out the factual background. I then set out the terms of the charge faced by the respondent, and the terms of the relevant legislation. I then describe the proceedings below, set out the grounds of appeal, and deal with those grounds.
Factual background
4 What follows is common ground between the parties.
5 Respondent holds an electrical worker's licence. On 3 December 2003 he was carrying out electrical work at 3 Citriadora Avenue, High Wycombe ("the property"). This work involved the installation of a gas oven. This required him to sever an existing electrical cable in a roof cavity. After severing the cable, the respondent tested it, finding it was not live. In fact the cable was connected to a switch, which the respondent had not noticed. He placed the severed end of the cable in a junction box, without a connector and without insulation tape on the severed end.
6 On 6 December 2003 David Dunnings, an electrical contractor, entered the roof cavity, to install an electrical circuit for an airconditioner. Others had been in the cavity shortly before him, working on aspects of the airconditioner. While Dunnings was doing his work he came into contact with the severed cable and received an electric shock from it. The severed end of the cable was no longer in the junction box.
The charge faced by the respondent
7 By undated prosecution notice, which it was accepted before me related to charge number PE 51923 of 2005 (particulars of which appear
(Page 4)
- below), the respondent was charged that, on 3 December 2003, at High Wycombe, he,
"Being an electrical worker, carried out electrical work which was not in accordance with the Australian/New Zealand Wiring Rules; contrary to regulations 49(1)(a) and 65 of the [Regulations] made under the [Act]."
"The accused carried out electrical installing work at 3 Citriadora Avenue High Wycombe that was not in accordance with clauses 1.7.3.1 and 1.7.3.2 of the AS/NZS 3000:2000 Electrical Installations ('the Australian/New Zealand Wiring Rules') in that the accused did not protect persons against danger that may arise from contact with parts of an electrical installation which are live in normal service. The accused failed to terminate or enclose by way of connectors and a junction box, the exposed cable of the electrical installation (the pre-existing wiring of the electrical installation) upon which he did electrical work[.]"
9 It was agreed before me that the reference in the Particulars of Charge to "the Australian/New Zealand Wiring Rules" was to those rules as they were for the purposes of the Regulations reg 49(1)(a), which I reach next.
The legislative provisions
10 The Regulations, reg 49(1)(a), is as follows:
"49. Electrical work to be carried out in accordance with certain requirements
(1) An electrical worker shall carry out electrical work in accordance with the requirements of –
(a) the Australian/New Zealand Wiring Rules as amended from time to time; … "
(Page 5)
12 The Regulations, reg 65, provides for a penalty for an individual of a fine of $5000 if a person "fails to do anything that a person is required to do under these regulations".
13 It was agreed before me that the Australian/New Zealand Wiring Rules (the "Wiring Rules") for the purposes of this charge were as follows (emboldening and italicisation as in the original):
"1.7.3 Protection against direct contact
- 1.7.3.1 General
Persons and livestock shall be protected against dangers that may arise from contact with parts of the electrical installation which are live in normal service (direct contact).
Protection may be provided by methods which are intended to -
(a) prevent a current from passing through the body of any person or livestock; or
(b) limit the current that can pass through a body to a value lower than the shock current.
Protection against direct contact with live parts shall be provided by one or any combination of the following methods:
(a) Insulation, in accordance with Clause 1.7.3.3.
(b) Barriers or enclosures, in accordance with Clause 1.7.3.4.
(c) Obstacles, in accordance with Clause 1.7.3.5.
(d) Placing out of reach, in accordance with Clause 1.7.3.6.
Live parts shall be completely covered with insulation capable of withstanding the mechanical, chemical, electrical and thermal influences to which it may be subjected in service.
- NOTE: Paints, varnishes, enamels or similar products alone are not generally considered as providing adequate insulation for protection against direct contact.
For commercially manufactured electrical equipment the insulation shall comply with the relevant Standard for the electrical equipment."
14 It was agreed before me that the charge in this case, so far as it related to Wiring Rules cl 1.7.3.2, went to sub-cl 1.7.3.2(a). I will briefly refer to the other methods in cl 1.7.3.2, below.
The proceedings below
15 On 26 July 2006 the respondent was tried before Magistrate Bayly in the Perth Magistrates Court. His Honour heard testimony from Dunnings; Michael Roy Grace, an electrical inspector with Western Power Corporation; and the respondent. On the same day his Honour delivered his judgment dismissing the charge.
16 His Honour noted that (TS 81):
"[t]he prosecution, I think, rightly, conceded during the course of the submissions, that I could not find beyond reasonable doubt that the accused had not put the severed wire into the junction box, and that subsequently it had somehow been dislodged from the junction box by others in the roof.
That being so, I then am left with a situation where, on the facts, the accused places the wire which he thought was dead, but which was not, into a junction box."
17 He identified "the issue" before him, and dealt with it, as follows (TS 82, TS 83):
"So the issue, therefore, is whether the - - the junction box is sufficient insulation to comply with section 1.7.3.3, because the prosecution is brought pursuant to that section. …
…
… The question is, was an insulation box in which - the prosecution have accepted I must find - the accused place[d] the wire, sufficient for the purposes of protection by insulation under 1.7.3.3? Clear to say that I have no evidence about the
(Page 7)
- insulating capabilities of a junction box, or how easily, or otherwise a wire can be dislodged from a junction box. None at all. In fact, no Western Power inspector, as one might have anticipated, came and gave evidence of having inspected the property and having looked at the particular junction box question. The evidence is silent about that.
So, I'm left in a situation where I've got no idea as to whether the junction box is capable insulation, capable of withstanding mechanical, chemical, electrical or thermal influences in which it may be subject. True it is that the accused, retrospectively, believes that it would be better to cover the end of the offending wire with a connector or tape. And had the charge been of a more general type, I might have come to a different conclusion. I can't really speculate about that. But I have to be satisfied on the prosecution that it had been a breach of 1.7.3.3.
Quite frankly, I don't know whether the installation box is capable of withstanding mechanical, chemical, electrical or thermal influences in which it may be subject service. We do know that the wire came out of the electrical box, if one accepts the evidence that the wire was placed into the electrical box in the first place. It is also fair to say that the accused hasn't showered himself with glory in determining whether the electrical wire was, in fact, not in use and not bearing current, when indeed it did, because he failed to locate a switch.
But in the end, so far as the prosecution is concerned, I'm left to speculate about matters, which I should not do. And therefore, I'm not satisfied beyond a reasonable doubt that the prosecution has proved its case, because the installation box - - sorry - - the connector box has not, by evidence, been shown to be a box which did not have insulating capabilities as referred to in 1.7.3.3. And therefore, for those reasons, I dismiss the charge against the accused. … "
The grounds of appeal
18 On 24 August 2006 his Honour Justice McKechnie granted leave to appeal under Criminal Appeals Act 2004 (WA), s 9, on the following grounds (emphasis in the original):
" … the learned Magistrate erred in acquitting the accused of the charge no. PE 51923 of 2005 in that:
(Page 8)
- (1) when considering whether the accused had carried out electrical work at [the property] on 3 December 2003, which involved the cutting and terminating of a cable, in accordance with the requirements of clauses 1.7.3.1, 1.7.3.2(a) and 1.7.3.3 of [the Wiring Rules], the learned Magistrate failed to:
(a) find that in order to comply with requirements of clauses 1.7.3.1, 1.7.3.2(a) and 1.7.3.3 a cable ought to be terminated by connectors/insulation tape and a junction box; and
(b) find on the accused's evidence that if a connector had been placed on the end of the cable prior to placing it in the junction box, the likelihood of the cable coming free from the junction box would have been reduced, and in the event the cable did come loose, the connector would have prevented an electric shock by preventing direct contract with the live end of the cable.
(2) he found that he had no evidence as to whether a junction box constituted insulation capable of withstanding mechanical, chemical, electrical or thermal influences to which it may [be] subject, when there was evidence before him which demonstrated that the junction box was not insulation capable of withstanding mechanical, chemical electrical or thermal influences to which it may [be] subject, namely:
(a) junction boxes are plastic boxes with a base and lid in which cables that are terminated with connectors or insulating tape are placed, or the cables are affixed to the junction box itself;
(b) the accused did not put any connectors or insulating tape on the cable prior to placing it in the junction box or alternatively affix the cable to the junction box;
(c) if a connector had been placed on the end of the cable prior to placing it in the junction box, it would have reduced the likelihood of the cable coming free from the junction box, and in the
- event the cable did come loose, it would have prevented a shock by preventing direct contact with the live end of the cable; and
- (d) the cable which had been placed in the junction box had come free from the junction box and caused an electric shock in another person."
19 I turn now to consider those grounds.
Ground 1: the cable ought to have been terminated with a cable/insulating tape and a junction box
20 Counsel for the appellant put to me in relation to this ground of appeal that the learned Magistrate erred in failing properly to consider the evidence that the use of a connector to secure the cable to the junction box would have protected persons in the position of Dunnings from the direct contact he suffered.
21 I disagree that the learned Magistrate so erred. It seems to me the submission involves an error in the approach to be followed in relation to the requirements of the Wiring Rules.
22 In my view, for a finding of guilt of an offence of contravention of the Regulation through contravention of the Wiring Rules, the finder of fact must find, beyond a reasonable doubt, in a prosecution for failure to meet the requirements of Wiring Rules, cl 1.7.3.1, through sub-cl 1.7.3.2(a), read with cl 1.7.3.3, the following elements satisfied, to the requisite standard:
• there was a part of an electrical installation which was live in normal service;
• that part was not completely covered with insulation which was capable of withstanding the mechanical, chemical, electrical and thermal influences to which that insulation may be subjected in service; and
• as a consequence persons and livestock were not protected against dangers, in the form of current passing through the body at a value that was not lower than the shock current, that may arise from contact with that part of the electrical installation.
(Page 10)
23 I note that there is no contest the cable was a live part of an electrical installation.
24 It was also common ground before me that, as the learned Magistrate found, Dunning's contact was with that part and thereby he was exposed to the dangers, in the form described, that may arise from such contact. It seems to me this involved that at that point of contact the cable was not insulated within Wiring Rules, cl 1.7.3.2(a), a point to which I will return.
25 However, the words I have emphasised above in my view follow from the requirement in the Wiring Rules that the protection, referred to in cl 1.7.3.1, against that exposure, be by means of one or a combination of the "methods" referred to in cl 1.7.3.2 ("[p]rotection against direct contact with live parts shall be provided"), and from the resting of the prosecution on a failure to provide protection through the method in sub-cl 1.7.3.2(a). It follows from this that if, notwithstanding a failure of the method used to meet the standard for that method, there was no danger against which there was a need to protect there would be no contravention of cl 1.7.3.1. An example might be adventitious protection provided by a removal of the possibility for access to the part of the electrical installation in question.
26 It seems to me proof to the requisite standard of a failure to use any method would be a contravention if one at least of the methods would have provided the protection referred to in cl 1.7.3.1. However, once there is evidence discharging the evidentiary onus that the accused had used a method or combination of methods from the list in cl 1.7.3.2 then the prosecution must show beyond a reasonable doubt that the method or methods used do not meet the standard or standards for the method or methods used. There is some difficulty in applying this analysis to the case where a combination of methods is used. In such a case, it seems to me, the prosecution must make the showing referred to for all of the methods in respect of which the evidentiary onus is met. It also seems to me that the application of the standard for the method or methods used might be affected by the use of another method, as that application might be by other conditions at the site of the electrical installation. An example might be the use of a barrier or enclosure that reduced the possibilities for mechanical influences on the insulation.
27 Counsel for the respondent put to me in oral argument that the onus was on the prosecution to prove in any prosecution under s 1.7.3 of the Wiring Rules, not only that the method the accused had used did not meet the standards for that method, but that the protection referred to in
(Page 11)
- cl 1.7.3.1 was not provided by one of the other methods referred to in cl 1.7.3.2. In this case, it was said, there was no evidence that the protection referred to was not so provided.
28 I am of the view that that construction of s 1.7.3 of the Wiring Rules is correct, but that there was evidence that the protection referred to was not provided by one of the other methods in cl 1.7.3.2. That evidence, it seems to me, was the evidence of the circumstances of contact Dunnings had with the cable in this case, which it seems to me was sufficient, in the absence of any other evidence, to show that protection was not provided from contact with a live cable without insulation at the time of contact.
29 At the same time, it seems to me that it would not be sufficient to prove a contravention to prove that, while a method from cl 1.7.3.2 had been used which was not shown beyond a reasonable doubt not to have met the standard for that method, there was nonetheless a failure to provide the protection otherwise described in cl 1.7.3.1.
30 That is, although counsel for the appellant appeared to put the contrary to me, it does not seem to me that sub-cl 1.7.3.2(a) should be read so as to require an electrical worker, carrying out electrical work involving a part of an electrical installation that is live in normal service, who employs the required method of insulation, to provide perfect protection.
31 The language of s 1.7.3 of the Wiring Rules, read as a whole, seems to me to involve that an electrical worker does not contravene that section of the rules who uses one (or a combination) of the four methods of protection listed in cl 1.7.3.2, where the method used or at least one of the methods used meets the standard for that method in the Wiring Rules. However, the lack of protection notwithstanding a method that met the standard for the method used would not be a contravention of cl 1.7.3.1. At least one example, which counsel for the appellant appeared to accept, was that of a cable that lost its insulation otherwise meeting the standard in cl 1.7.3.3 as a result of the actions of an intermeddler where such actions were not one of the influences of "service". The term "service", counsel accepted, was "normal" service, which appears to me to be correct, and which would exclude at least some forms of deliberate intermeddling.
32 In particular, I note that the specifications, in cl 1.7.3.3, for the method in cl 1.7.3.2(a), appear to me clearly to allow for the possibility
(Page 12)
- that the method does not provide perfect protection: see the words "generally" and "adequate" in the "NOTE" to cl 1.7.3.3.
33 The nature of the offence as charged is that the respondent has failed to do something he was required to do by the Regulations. The Regulations relevantly refer for their requirements to the Wiring Rules, and in this case cl 1.7.3.1 read with sub-cl 1.7.3.2(a) and cl 1.7.3.3, which are expressed in the passive voice, without a subject. However, not without some difficulty, I would read those provisions, when considered as part of the Regulations, as requiring an electrical worker doing electrical work to provide the protection referred to in those clauses where there is no protection from any of the dangers arising out of that work that is one of the dangers described in cl 1.7.3.1.
34 Counsel for the appellant contended that Wiring Rules, cl 1.7.3.1, was a general requirement that could be read independently of sub-cl 1.7.3.2(a). This would seem to entail that, even although an electrical worker might provide one of the forms of protection in sub-cl 1.7.3.2(a) to sub-cl (d), he or she might nonetheless fail to do what cl 1.7.3.1 requires.
35 I cannot agree. The language of cl 1.7.3.2 would seem to me to be that of an exhaustive statement of the means to be used to achieve the protection in cl 1.7.3.1. The reading contended for would entail that cl 1.7.3.2 should be read as if the words "at least" appeared before "one or any combination of the following methods". It was not evident to me, from a reading of s 1.7.3 of the Wiring Rules "Protection against Direct Contact", that this is required to achieve its purpose to be gathered from its express words.
36 Counsel for the appellant made what at first blush appeared to be a related but different argument. It was that the language of r 1.7.3.1 should be used to construe the language of r 1.7.3.2. Relevantly for my purposes, it seems to be submitted, I should read r 1.7.3.2(a) as if it required insulation that achieved the protection in cl 1.7.3.1. That meant that insulation which did not prevent any "direct contact" which involved a current passing through the body of any person or livestock at a value higher than the "shock current" would fail to meet the requirement of cl 1.7.3.2(a).
37 However, I consider that that argument is a restatement of the one I have just rejected. The present argument would mean that the use of insulation which did not prevent such a direct contact, but which
(Page 13)
- otherwise met the requirement of sub-cl 1.7.3.2(a), would be a contravention of the Regulations in the relevant respect.
38 That is, the present argument, like the one I previously rejected, entails that there is a form of absolute obligation on electrical workers to carry out electrical work to protect persons and livestock from contact with parts of the electrical installation which are live in normal service. The language of the Wiring Rules 1.7.3, at least when cl 1.7.3.1 is read with sub-cl 1.7.3.2(a) and cl 1.7.3.3, is not, it seems to me, apt to make electrical workers insurers in that way.
39 However, I also note that the method stipulated for the purposes of sub-cl 1.7.3.2(a) in cl 1.7.3.3 is that of "complete" coverage of the live part with insulation meeting a particular standard of what I would style "resistance capacity". The standard is that the insulation be capable of withstanding the mechanical, chemical, electrical and thermal influences to which "it may be subject in service". The "NOTE" refers to "adequate insulation", while the reference to "commercially manufactured electrical equipment" is to such equipment meeting the "relevant Standard" for that equipment. I consider the language prior to the NOTE read in context denotes a capacity to withstand influences of the sort to which the part may be subject in service, not all influences of those sorts however or whenever encountered by that part.
40 This in turn means that in relation to a prosecution, in which it is accepted that the live part had been completely covered but was not covered at the relevant time, and in which it is also proved beyond a reasonable doubt that, had the part continued to have been covered, there would not have been the danger referred to in cl 1.7.3.1, a conviction requires the finder of fact to be satisfied beyond a reasonable doubt that the covering was not insulation the resistance capacity of which met the standard described. On my view of the Wiring Rules in the relevant respects, it is not enough that the covering was not sufficient to protect against contact of the sort referred to.
41 In this case it was accepted that the form of insulation the accused had used was a junction box without a connector or insulating tape. I return below as to the evidence as to the way in which junction boxes are used. The evidence as to the nature of the junction box in this case to which my attention was drawn was of two sorts.
42 One sort of evidence was represented by the evidence of Dunnings (cross-examination, TS 20) as follows:
(Page 14)
- "Maybe I could ask - - could I ask you to describe for us what a junction box, in fact, is?---It's a plastic box that can be screwed and nailed to a beam, and when you terminate a cable you put it inside the box and screw the lid on, so that the end of the cable is actually covered."
43 The other sort of evidence was represented by a photograph of the junction box in this case, in situ as I understand that evidence (Exhibit 5). I also note the evidence of the respondent describing that junction box (examination in chief, TS 54). It was not in contest before me that this was a junction box in the sense described in Dunnings' evidence.
44 I note that there was evidence, from the respondent, that if a cable had been inside a junction box, it would not have caused electrocution from incidental contact (re-examination, TS 64), and this evidence was not contested.
45 I conclude from this material that it was not in contest that, so long as the cable was in the junction box, it was completely covered for the purposes of Wiring Rules, cl 1.7.3.3. I note that, to this extent at least, the learned Magistrate had evidence "about the insulating capabilities of a junction box".
46 It follows from my analysis that therefore it fell to be decided whether or not the prosecution had established beyond a reasonable doubt that the accused's use of the junction box was a failure to meet the standard in cl 1.7.3.3 for the resistance capacity of the junction box.
47 In those circumstances it seems to me to be insufficient for the prosecution to point to the effectiveness of another form of insulation (a connector or insulation tape) to discharge that burden. The prosecution must be able at least to point to evidence that the junction box as used by the accused was not a form of insulation that met the standard in cl 1.7.3.3. In the circumstances of this case, the application of that standard would involve that the junction box as used by the accused was incapable of withstanding the mechanical influences to which that form of insulation was subject in service, that is, it lacked the required resistance capacity.
48 I would therefore not uphold the first ground of appeal.
49 This takes me to the second ground of appeal.
(Page 15)
Ground 2: there was evidence that the junction box as used by the accused did not meet the required standard of resistance capacity
50 I understand the present ground to be that the learned Magistrate was in error in finding he had no evidence to the effect described as he had evidence that:
• junction boxes are of a nature that involves the termination of cables in them where the cables are fitted with connectors or with insulating tape, or where the cables are affixed to the junction box itself, and the accused had not used a junction box in such a setting;
• the cable had been covered, by the junction box, but was uncovered at the relevant time, which was shortly after the cables had been put in a junction box, and in a space, a roof cavity, access to which was limited, but in which others had been working shortly before Dunnings had encountered the cable;
• there was evidence that the likelihood of the cable coming loose was greater if the cable without a connector had been placed in the junction box than if the cable with a connector had been placed in that box; and
• there was evidence that if a cable, with a connector, had come loose, the connector would have prevented a shock by preventing direct contact with the live end of the cable.
51 I put aside the last matter. It seems to me to go to a form of insulation that the accused had not used. On my reasons in relation to the previous ground, it is a matter which is not evidence of a failure to comply with Wiring Rules in the respect relevant to the present prosecution.
52 The preceding three matters appear to me to be evidence of a circumstantial kind in relation to the failure to comply with the Wiring Rules in the respect relevant to the present prosecution. Although the contrary appears to have been put to me by the respondent, I consider there was some evidence on each of those matters. However, I consider the evidence was of too slight a character to justify the learned Magistrate coming to a different conclusion as to the evidence he had before him. At the same time I consider the combination of those items of evidence was sufficient on which to found a reasonable inference that the junction box
(Page 16)
- as used by the accused did not have the required resistance capacity. However, that body of evidence was not a strong foundation for that inference.
53 With respect to the evidence on each of the matters referred to, I start with the first matter, that of the nature of junction boxes. The evidence with respect to that matter to which my attention was directed was the following, from the evidence of Dunnings, and from the appellant.
54 Dunnings testified that he was some one who had worked "for 35 years in the electrical industry" (cross-examination, TS 18). In his re-examination he testified as follows (TS 25):
"Are you able to explain how wire are [sic] ordered within a junction box? Yes. Wires are normally stripped, which means you have the outer core, as you can see in the picture - - by the picture, the white cable, and inside that you have three separate cores, being a black, a red and a green, or green and yellow, which is the earth. You normally strip those cables back."
55 There was then an exchange between the learned Magistrate and counsel for the defendant as to the propriety of this line of questioning as re-examination, an objection not renewed before me, after which the re-examination continued, as follows (TS 26):
"If you could continue?---Yeah. So, once you strip these - strip this back, you know, 100 cms, or whatever, enough to - - you put connectors on the end of those cables, which is a plastic insulated connector, with a screw clamp within it, which, basically, makes the end of the cable safe. And after that, it is then fitted into a junction box."
56 For his part, the respondent testified (examination-in-chief, TS 52) he had been working:
"[a]s a qualified electrician, just over 3 years, plus a 4 year apprenticeship with Custom Electrics also."
57 Relevantly to the present matter, he testified as follows (cross-examination, TS 60, 61, 62):
"Would you agree that junction boxes ordinarily are supposed to work by way of having all wires that are in that junction box
(Page 17)
- terminated with connectors on the end; would you agree with that?---No. Not necessarily connectors. No.
And why wouldn't you agree with that?---There's no - - you - - some people solder, tape. It depends on - - depends on what - - what you - -
Did you solder or tape in this particular instance, when you put the wire in the junction box?---No. I didn't.
Okay. Was there anything to affix that particular wire in the junction box when you put it in the junction box?---No. There wasn't.
HIS HONOUR: So, you didn't solder or tape the end?---Correct.
…
MS IDE: … You'd agree, though, connectors, in this particular instance, would have assisted if the wire were kicked, or something of that kind of nature?---Mm hm.
It would have stopped the connectors from coming out of the junction box?---Not necessarily. No.
Would you agree that a junction - - a connector on the end of the wire makes the end of that wire significantly larger, say, to a couple of square centimetres larger?---Yes.
Would you agree if there was connectors on the wire in this particular instance, it may not have fallen out of the junction box? --- There's a possibility.
MS IDE: Mm hm. Would you agree it would have been preferable to put connectors on the end of this particular wire, to insure it didn't fall out of the junction box?---Possibly. Yes.
…
HIS HONOUR: If - - if you put a wire into a connector box, do you have to attach it inside the connector box, or you just poke it in?---Just poke it in and screw the lid down.
And that stops it coming loose?---It's meant to.
(Page 18)
- But, if you've got a connector on the end, then it's more likely not to come loose; is that the position?---That's if the lid doesn't pop off.
…
So a connector's not going to stop you being electrocuted?---No. Not - - no.
HIS HONOUR: But it may be wider, and therefore stop it coming out of the box?---Correct. Yes."
58 It seems to me the evidence of Dunnings indicated that connectors are usually fitted to wires or cables before they are placed in a junction box, and the evidence of the respondent was that the effect of so doing would be to make it harder for the wires or cables to be dislodged from the box. There was also evidence from the respondent that he would "normally" place a connector or tape on the end of a wire in a junction box whether that wire was "live or dead" (cross-examination, TS 63).
59 However, there was no evidence to which my attention was drawn that the use of connectors or, on the respondent's evidence, solder or tape, or affixing to the box, was the practice for the purpose of protecting against dislodgement of the wires or cables from the box. The evidence of the respondent to which counsel for the appellant drew my attention in relation to the reason for the use of a connector (cross-examination, TS 63, and the reference to his video record of interview in his Honour's reasons, at TS 80) was, it seems to me, to the effect that the use of a connector would protect against electric shock from incidental contact with the portion of the wire with the connector, not for the purpose of protecting against dislodgement from a junction box.
60 However, counsel for the appellant put to me that I should conclude that the evidence of the respondent taken as a whole indicated that the use of a connector was for both of the purposes I have described. I cannot agree, particularly on the evidence from the respondent quoted above, to no challenge to which my attention was directed, the effect of which appears to be that wires or cables without connectors or fixing were not likely to be dislodged from the box without the lid coming off. The likelihood of the latter occurring was not the subject of any evidence to which my attention was directed.
61 On that state of the evidence, it seems to me that, while his Honour had evidence about the normal use of wires in junction boxes, it was too
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- slight a foundation on which to found a reasonable inference that the respondent had used a form of insulation that did not have the resistance capacity required by Wiring Rules, cl 1.7.3.3.
62 This takes me to the evidence as to the remaining two matters.
63 As to the first of those, it was put to me that the only rational inference from the proximity in time of the dislodgement, the restrictions on access to the space where the dislodgement must have occurred, and the presence of others in the space before Dunnings' contact with the cable, was that junction box had been unable to withstand the mechanical influences of service to which it had been subjected. Thus it had not met the standard in cl 1.7.3.3.
64 However, there was no other evidence to which my attention was drawn as to the character of the work done by the others in the roof cavity, or otherwise, from which to determine the risks of what sort of contact with the cables ending in the junction box that that work posed. It seems to me that without such evidence it would have been difficult for the learned Magistrate to have concluded that any contacts arising out of that work were the sort of "mechanical" influences to which the box "may be subjected in service". The evidence he did have was too slight a foundation on which to found a reasonable inference that the respondent had used a form of insulation that did not have the resistance capacity required by cl 1.7.3.3.
65 As to the second of those, I have already set out the evidence relevant to the matter of whether or not the likelihood of the cable coming loose was greater if the cable without a connector had been placed in the junction box than if the cable with a connector had been placed in that box. However, this greater likelihood, without evidence as to the needs of "service", seems to me too slight a foundation on which to found a reasonable inference that the respondent had used a form of insulation that did not have the resistance capacity required by Wiring Rules, cl 1.7.3.3.
66 I have further considered whether or not the evidence on all three matters, taken in combination, would be a sufficient foundation for a reasonable inference that the respondent had used a form of insulation that did not have the resistance capacity required by Wiring Rules, cl 1.7.3.3. In my view, not without some difficulty, the combined effect of this body of evidence would be sufficient to found the inference referred to. However, this body of evidence also appears to me to be a slender foundation for such an inference.
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67 I have thus concluded that the learned Magistrate erred in concluding he did not have evidence as to whether or not a junction box constituted insulation capable of withstanding mechanical, chemical, electrical or thermal influences to which it may be subject in service.
Whether the Court is satisfied no substantial miscarriage of occurred
68 I have concluded that the learned Magistrate erred in the respect identified in ground 2 of the grounds of appeal. This would have me allow the appeal under Criminal Appeals Act 2004 (WA), s 14(1)(b).
69 However, on the submissions put to me I must also consider the possible application of the provisions of Criminal Appeals Act 2004, s 14(2), which are:
"Despite subsection (1)(b), even if a ground of appeal might be decided in favour of the appellant, the Supreme Court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred."
70 As I have indicated, I have concluded that ground 2 is made out on the basis of the combined effect of the body of circumstantial evidence I referred to for this purpose in the previous section of my reasons.
71 In determining whether or the provisions of Criminal Appeals Act, s 14(2), are engaged in this case, I consider I must apply the well know test for discharge of the burden of proof in a criminal prosecution that rests on circumstantial evidence. That test is referred to in Knight v The Queen (1992) 109 ALR 225, per Mason CJ, Dawson and Toohey JJ, at 231, concerning the circumstances of such a prosecution (footnotes deleted):
"In those circumstances, the reasoning process which must be employed if the onus of proof beyond reasonable doubt is to remain upon the prosecution is well recognised. As Dixon J said in Martin v Osborne [1936) 55 CLR 367, at 375]:
'If an issue is to be proved by circumstantial evidence, facts subsidiary to or connected with the main fact must be established from which the conclusion follows as a rational inference. In the inculpation of an accused person the evidentiary circumstances must bear no other reasonable explanation.'
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- In Plomp v R [(1963) 110 CLR, at 243] Dixon CJ cited his previous observation in Martin v Osborne and acknowledged the difficulty found in stating the rule, a difficulty which he said 'has not been overcome by employing the expression 'more consistent' as if there could be degrees of consistency'. His Honour attempted clarification by citing his further words in Martin v Osborne [(1936) 55 CLR, at 375]:
'This means that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved would be accompanied by the occurrence of the fact to be proved is so high that the contrary cannot reasonably be supposed.'"
Conclusion
73 It follows that I would dismiss the appeal.
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