May v Commonwealth
[2024] ACTCA 6
•1 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | May v Commonwealth |
Citation: | [2024] ACTCA 6 |
Hearing Dates: | 8-11 May 2023 |
Decision Date: | 1 March 2024 |
Before: | Mossop, McWilliam and Wheelahan JJ |
Decision: | See [201]-[202]. |
Catchwords: | CRIMINAL LAW – APPEAL – Charge of failing to comply with health and safety duty under s 32 of the Work Health and Safety Act 2011 (Cth) – Commonwealth convicted by magistrate but acquitted on appeal to single judge – prosecution appeal to the Court of Appeal – helicopter pilot died following fall into crevasse at fuel cache site in Antarctica – prosecution asserts reasonably practicable measures to ensure safety of worker were not undertaken – determination of whether proposed measures were “reasonably practicable” – whether proposed measure referring to “minimal crevassing” was reasonably practicable – meaning of “minimal crevassing” uncertain – lack of evidence of capacity to interpret satellite data – whether repetition of suite of measures to determine safety of fuel cache site was reasonably practicable – acquittal of Commonwealth not shown to be wrong – appeal dismissed CRIMINAL LAW – JURISDICTION – Helicopter company contracted to Commonwealth to provide helicopter services in Antarctica – charge of breach of s 32 of the Work Health and Safety Act 2011 (Cth) – company acquitted by magistrate – prosecution appeal to Supreme Court – whether Supreme Court has jurisdiction to hear appeal against acquittal on Commonwealth summary offence – whether review appeal by prosecution under Pt 3.10.3 of the Magistrates Court Act 1930 (ACT) picked up by s 68(2) of the Judiciary Act 1903 (Cth) – issue not necessary to decide in circumstances where dismissal of charges against the Commonwealth require the dismissal of charges against the helicopter company in any event |
Legislation Cited: | Civil Aviation Regulations 1988 (Cth) Judiciary Act 1903 (Cth), s 68(2) Magistrates Court Act 1930 (ACT), ss 28, 208, 219B, 219D, Pt 3.10.3 Work Health and Safety Act 2011 (Cth), ss 8, 12, 18, 19, 30, 32, Div 2, Div 3, Div 4, Pt 2 |
Cases Cited: | Australian Securities and Investments Commission v Vis [2000] SASC 258; 77 SASR 490 Babet v Electoral Commissioner [2023] FCAFC 164 Carmichael v The Commonwealth of Australia (unreported, Magistrates Court of Victoria, Magistrate Hawkins, 19 November 2020) May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 1) [2019] ACTMC 20 May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31 May v Helicopter Resources; Commonwealth of Australia v May (No. 2) [2021] ACTSC 123 May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295 Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297; 137 IR 253 Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 |
Parties: | Christopher May ( Appellant) Helicopter Resources Pty Ltd ( Respondent) Commonwealth of Australia (Respondent) |
Representation: | Counsel P Neil SC, C Jacobi KC and B Narula ( Appellant) G O’Mahoney and D Habashy ( Helicopter Resources Pty Ltd) G Livermore SC and C Currie (Commonwealth) |
| Solicitors Commonwealth Director of Public Prosecutions ( Appellant) Norton White ( Helicopter Resources Pty Ltd) Maddocks (Commonwealth) | |
File Numbers: | ACTCA 34 of 2021 ACTCA 35 of 2021 |
Decision Under Appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 10 June 2021 Case Title: May v Helicopter Resources; Commonwealth of Australia v May Citation: [2021] ACTSC 116 |
THE COURT:
Introduction
1․These appeals arise out of a tragic accident that occurred on 11 January 2016 during helicopter operations undertaken on behalf of the Australian government in Antarctica. A helicopter pilot, David Wood, had deposited drums of aviation fuel at a fuel cache on the Western Ice Shelf, an ice covered area to the east of Davis Station. Unbeknownst to him, he had landed his helicopter with its skids across a snow-covered crevasse. When returning to his helicopter after unhitching the fuel drums, the snow over the crevasse gave way and he fell into the crevasse. Although he was subsequently rescued from the crevasse, he died from the effects of hypothermia the next day.
2․The informant, Mr May, an officer of the Commonwealth authority responsible for investigating breaches of the Work Health and Safety Act 2011 (Cth) (WHS Act), brought proceedings against the Commonwealth itself and Helicopter Resources Pty Ltd (Helicopter Resources), the company that employed Mr Wood. Three charges were brought against the Commonwealth. Three charges were brought against Helicopter Resources.
3․As set out in more detail below, the charges laid in the Magistrates Court asserted that both the Commonwealth and Helicopter Resources had contravened s 32 of the WHS Act. That section requires that the prosecution establish that the accused person failed to take reasonably practicable measures to ensure the health and safety of the relevant helicopter pilots who landed on the West Ice Shelf.
4․In the Magistrates Court, the prosecution succeeded against the Commonwealth on two of the three charges laid, but Helicopter Resources was acquitted on all the charges that it faced: May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31.
5․The Commonwealth appealed against its convictions to the Supreme Court. The prosecution appealed against the acquittal of Helicopter Resources. The Commonwealth appeal was successful and the appeal against the acquittal of Helicopter Resources was unsuccessful: May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116.
6․The prosecution appealed against both aspects of the Supreme Court’s decision. Objections to the competency of the appeals were dismissed by the Court of Appeal: May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295.
Summary
7․The prosecution put forward a detailed and interlinked package of six measures which it said should have been taken in relation to flights to fuel depot sites on the West Ice Shelf. The manner in which those particularised measures were drafted meant that the prosecution would fail unless it established beyond reasonable doubt that each of the measures was “reasonably practicable”. If one measure was not proven beyond reasonable doubt to be reasonably practicable, then the whole package of measures would not have been proven to be such. Because of this feature of the charges, the case run by the prosecution was one upon which it was particularly difficult for the prosecution to succeed.
8․So far as the case against Helicopter Resources was concerned, the manner in which the breaches of s 32 were particularised was such that if the prosecution of the Commonwealth failed because the package of measures was not proved beyond reasonable doubt to be reasonably practicable, then the charges against Helicopter Resources would necessarily fail.
9․There were a multitude of issues that were contested before the magistrate and the appeal judge. There are a multitude of issues raised by the prosecution’s appeal and detailed Notices of Contention filed on behalf of the Commonwealth and Helicopter Resources. It is not necessary to determine all of those issues in order to determine these appeals.
10․For the reasons which follow, we have concluded that the appeal judge was correct in allowing the Commonwealth’s appeal against its conviction and dismissing the prosecution appeal against the acquittal of Helicopter Resources. In order to reach that conclusion, it has only been necessary to determine one ground of the prosecution’s appeal and one ground of the Commonwealth’s Notice of Contention. Those grounds concern findings made by the appeal judge about the reasonable practicability of the testing and assessment measures concerning “minimal crevassing”, and the reasonable practicability of repeating the precautionary measures specified every 14 days – a finding which the Commonwealth contended should have been made by the appeal judge and which, if made, was fatal to the charge against it.
11․Those matters have been resolved in the Commonwealth’s favour and mean that a finding of a lack of guilt in respect of the Commonwealth and Helicopter Resources would inevitably follow. In those circumstances, it is unnecessary to determine the large number of other issues raised in the Notice of Appeal and the Notices of Contention.
The charges
12․The Commonwealth faced three charges:
(a)Charge 1 alleged that on 8 December 2015, the Commonwealth, which was conducting a business or undertaking at Davis Station in the Australian Antarctic Territory and which had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by the defendant, in particular Mr Bryan Patterson, while they were at work in the defendant’s business or undertaking, failed to comply with that duty and exposed workers to the risk of death or serious injury, contrary to s 32 of the WHS Act.
(b)Charge 2 was to similar effect, except that it related to the date of 28 December 2015 and the particular workers identified were Mr David Wood and Mr Paul Sutton.
(c)Charge 3 was in similar terms, except that it related to the date of 11 January 2016 and the workers identified were Mr David Wood and Mr Paul Sutton.
13․Helicopter Resources also faced three charges:
(a)Charge 1 was in similar terms to charge 1 laid against the Commonwealth in that it alleged a breach of s 32 relating to 8 December 2015 and the worker involved was Mr Bryan Patterson.
(b)Charge 2 was in similar terms to charge 2 laid against the Commonwealth in that it referred to the date of 28 December 2015 and the workers involved were Mr David Wood and Mr Paul Sutton. It was, however, particularised in a manner different to charge 2 against the Commonwealth.
(c)Charge 3 was in similar terms to charge 3 laid against the Commonwealth in that it related to the date of 11 January 2016 and the workers involved were Mr David Wood and Mr Paul Sutton.
14․The particulars provided in relation to each charge were extensive. Each of the charges related to the conduct of helicopter flights in the Australian Antarctic Territory. The workers named in the charges were helicopter pilots. In each case, it was alleged that the health and safety risk to which the pilots were exposed was the risk of serious injury or death as a result of falling into a crevasse. So far as charges 1 and 3 against the Commonwealth were concerned, the measures that the prosecution alleged ought to have been taken were a collection of six identified measures relating to the assessment of suitability of the landing site. The measures are set out later in these reasons (see [22] below). So far as charge 2 against the Commonwealth was concerned, the measure that the prosecution alleged ought to have been taken was to require helicopter pilots to wear personal protective equipment in the form of appropriately waterproofed and thermally insulated clothing at all times when they were outside the helicopter whilst at a deep field fuel cache. This was the charge upon which the Commonwealth was acquitted and in relation to which there was no appeal. It is not necessary to say anything more about this charge.
15․In relation to the charges against Helicopter Resources, they were particularised as involving the failure by Helicopter Resources to ensure that the Commonwealth had undertaken the six identified measures before the relevant pilots landed and walked on the ice surface.
Statutory provisions
16․As at the date referred to in the charges, the relevant provisions of the WHS Act were as follows:
32 Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if:
(a)the person has a health and safety duty; and
(b)the person fails to comply with that duty; and
(c)the failure exposes an individual to a risk of death or serious injury or illness.
Penalty:[The category 2 monetary penalty.]
17․Section 30 provides that a “health and safety duty” is a duty imposed under Divs 2, 3, or 4 of Pt 2 of the Act. Relevant in this case is s 19, which falls within Div 2 of Pt 2.
19 Primary duty of care
(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:
(a)workers engaged, or caused to be engaged by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.
…
18․By reason of these provisions, in order to succeed in proving breaches of s 32, it was necessary for the prosecution to establish, beyond reasonable doubt, the following elements:
(a)The defendant was conducting a business or undertaking.
(b)The defendant owed a health and safety duty to ensure, as far as was reasonably practicable, the health and safety of:
(i)workers engaged by it;
(ii)while the workers were at work in the business or undertaking.
(c)The defendant failed to comply with its health and safety duty.
(d)The failure exposed an individual to a risk of death or serious injury or illness.
19․Central to the determination of the scope of a defendant’s health and safety duty is the definition of “reasonably practicable”. That is because it is a qualification on the obligation in s 19 to “ensure” the health and safety of workers. It thereby determines the standard of conduct which must be met. What is “reasonably practicable” for the purposes of s 19 is determined by s 18, which provides:
18What is reasonably practicable in ensuring health and safety
In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:
(a) the likelihood of the hazard or the risk concerned occurring; and
(b)the degree of harm that might result from the hazard or the risk; and
(c)what the person concerned knows, or ought reasonably to know, about:
(i)the hazard or the risk; and
(ii)ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
20․In order to succeed, the prosecution must identify measures which could have been but were not taken in order to ensure the safety of workers and prove beyond reasonable doubt that they were “reasonably practicable” in the sense required by s 18.
Factual background
21․The basic factual background was uncontroversial. The following detailed findings of fact were made by the magistrate:
31.The Commonwealth of Australia conducted, through the Australian Antarctic Division (AAD), activities in the Australian Antarctic Territory (AAT), including at Davis Station and its surrounds. The activities included, amongst other things, the facilitation of scientific research in the AAT.
32.Helicopter Resources Pty Ltd is an Australian company that provides helicopter services.
33.In 2012, Helicopter Resources entered into a contract with the Commonwealth to provide the AAD with helicopter services in the AAT. Those services involved the transport of personnel and cargo, and other support to AAD facilitated science projects.
The geography and ice
34.Davis Station is one of the stations operated by the AAD and is located on an island just off the coast in the AAT. East of Davis Station is the West Ice Shelf (WIS). This is a very large area of ice floating on the sea adjacent to the very large ice sheet sitting on the Antarctic continent. The ice shelf is fed from that ice sheet. The ice sheet forms on the continent and flows down the land and towards the sea. The ice sheet and shelf are very thick.
35.The ice sheet is prone to cracking when exposed to tensile or shear stresses. Those forces may arise due to parts of the ice moving at different speeds, either along or across the direction of flow, and where the ice hinges along the coast due to tidal fluctuations. Those cracks lead to crevasses. Crevasses can be large enough for a person to fall in and deep enough to prevent a person climbing out. They can also be covered by snow, which may form snow bridges across the surface, and which may hide the existence of the crevasse. Snow bridges may be too thin to support the weight of a person.
The people
36.During the 2015/16 summer season, Helicopter Resources provided four pilots across two rotations. The first rotation comprised of Bryan Patterson and Haydon Anderson, and the second rotation comprised of Paul Sutton and David Wood, with the former pilots in each rotation designated the Senior Pilot. The Chief Pilot for Helicopter Resources was Lee Hornsby until August 2015, and then it was David Lomas. The Chief Pilot had several statutory responsibilities, including ensuring appropriate pilot training and regulatory compliance. Each pilot had significant general aviation experience, and experience flying in Antarctica. Following the death of Mr Wood, Mr Lomas travelled to Davis Station and assisted with the retrieval of the helicopter flown by Mr Wood and left on the WIS following the incident of 11 January 2016.
37.During the 2015/16 summer season, the Station Leader of Davis Station was William De Bruyn and the Operations Coordinator was Sharon Labudda. Both had significant experience in Antarctica. The Station Leader was responsible for the safety and wellbeing of the station community and management of all programs and expedition personnel. The Operations Coordinator reported to the Station Leader and was responsible for day to day resource allocation, operational planning and the implementation of all off station operations. That included tasking pilots and others.
38.Field Training Officers (FTO) were also located at Davis Station. During the 2015/16 summer season, they were Martin Benavente and James Hamilton. A third FTO, Anthea Fisher, was attached to Project King and worked out of either Casey or Davis station. FTOs are responsible for the planning and delivery of field training to personnel in the AAT, as well as providing support to scientific groups in the field and when necessary conducting search and rescue.
39.Other AAD staff were located in the AAD’s Hobart office, including Don Hudspeth, the AAD Planning Manager.
A project
40.The AAD agreed to support a scientific project designated Project King. It was a multi‑season project that included the 2015/16 summer season. Among other things, that project involved the collection of rocks and the installation of equipment at sites further east of the WIS, known as Nunatak 1, Nunatak 2 and Gaussberg. (A nunatak is an isolated projection of rock through the ice sheet.) Arrangements for the project were contained within a service level agreement. The AAD intended that helicopters would transport people and equipment to those sites. The distances between Davis Station and those sites were such that the helicopters would need to refuel more than once each way. It was planned that refuelling was to be arranged by flying fuel into remote and unprepared sites, where the fuel would be cached by leaving the drums strapped together and sitting on the ice surface. Those cache sites ultimately included one on the WIS at the incident site and another at Nunatak 1. The fuel was to be transported in large drums suspended by a long line and drum hooks from an external sling point on the helicopters.
41.Mr Hudspeth, of the AAD Hobart office, provided Ms Labudda with coordinates for suggested locations in relation to the project, including a fuel cache site on the WIS. Ms Labudda discussed those locations with Mr Patterson and a decision was made by Ms Labudda, possibly with the knowledge of Mr De Bruyn, about using the pre-existing fuel cache site on the WIS.
Pilot training
42.Each of the pilots had undergone extensive flying training and had extensive post‑qualification experience. Mr Patterson had been qualified to fly helicopters since 1991 and had a range of helicopter associated endorsements. At the relevant time he had approximately 9,500 flying hours. Mr Sutton had been a helicopter pilot for 20 years and had several helicopter endorsements. At the time of the incident, he had logged approximately 4,000 flying hours. Mr Wood had been flying helicopters since 1980, again had several related endorsements and at the time of his death had logged in excess of 16,000 flying hours.
43.For the 2015/16 summer season, Mr Lomas provided Messrs Patterson, Sutton and Wood with re-currency pilot training. That occurred shortly prior to their departure to Antarctica and in the vicinity of Cambridge Aerodrome Hobart. The previous year, the previous chief pilot had provided similar training to the same pilots. The training was specifically designed for work in Antarctica. It involved both classroom and flight training. It included the testing of landing site selection and landing sequences, with an emphasis on conducting a thorough reconnaissance of a landing site before landing. The pilots were also informed about the dangers of landing on snow, and the benefit of landing on ice not covered with snow.
44.Upon arrival at Davis Station, each pilot received an orientation flight, where they flew a helicopter around the station and to the edge of the nearby Sorsdal Glacier, while an FTO provided information about the local environment. The FTOs also provided training to the pilots about how to use the survival equipment carried on the helicopters. That equipment included tents, survival bags and cookers. The pilots were also briefed about the operation of the station and their individual roles and responsibilities when at the station.
45.Additionally, the pilots flew many times with the FTOs in Antarctica and regularly discussed the terrain below. Those discussions included assessing possible landing sites, the risks of crevasses and irregular surfaces being hidden below snow and how to use different sun angles and orientations to detect crevasses. The FTOs also advised the pilots to land on bare blue ice surfaces, rather than on snow.
Publications
46.The AAD had a comprehensive series of publications that addressed issues of safety. One manual, Volume 5 – Aviation Standard Operating Procedures, provided the following in relation to rotary wing activities:
10.Prior to landing on glaciated surfaces the following will apply:
i.Proper planning and briefings on the site and mission must be conducted in consultation with the pilot and FTOs
ii.FTOs must be familiar with helicopter anchor points, and have practiced the heli crevasse probing technique and emergency procedures and
iii.A low light aerial recon (sic) should be undertaken to assist in identifying crevassed terrain.
47.That manual did not define the expression ‘glaciated surfaces’.
48.Another manual, Volume 1: Station & Field, provided a comprehensive description of hazards, and methods to minimise the manifestation of risks associated with those hazards. For example, it addressed field training, field leadership, sea ice travel, heli crevasse probing, Hagglunds crevasse probing, small vehicle roped glacier travel, field equipment and clothing, field food and rations, field huts, caches and depots, and deep field trips. In relation to heli crevasse probing it provided:
4.6 Heli Crevasse Probing
Helicopters may be used to insert parties into the field on glaciated terrain. There is potential for the following to occur while conducting this type of operation:
·Accidental rotor strike while using a probe under the helicopter; and
·Personnel falling into a crevasse while probing, with excess rope out, still attached to the helicopter and being unable to self rescue.
Prior to conducting heli crevasse operations:
·Proper planning and briefings on the site and mission must be conducted in consultation with the pilot and FTOs;
·FTOs must be familiar with helicopter anchor points, and have practiced the heli crevasse probing technique and emergency procedures; and
·A low sun angle aerial recon (sic) in light conditions providing high ground definition should be undertaken to assist in identifying crevassed terrain.
During heli crevasse operations:
·Two FTOs must be used to conduct heli crevasse probing;
·No probing is to occur inside the rotor disc area; and
·FTOs must have some form of protection at all times, hence the first FTO should move clear of the rotor blade area whilst protected by the aircraft, probe that area for safety and have the second FTO join them. The aircraft can then retire to a safe area and await a clearance to come back to the tested area.
There are significant complications and variations in conditions that affect the construction of suitable anchors that will fully protect personnel on the ground. A two FTO operation is the only way to avoid personnel being attached to the helicopter at all times.
49.That same manual imposed limitations when operating on glaciated terrain. Relevantly it provided at 4.3.8:
Expeditioners crossing or working in glaciated terrain will be accompanied by an FTO unless an exemption has been approved by the [Operations Manager].
50.Again, that manual did not define the term ‘glaciated terrain’. Under the headings, 4.13.9 Vehicles and plant and Operating vehicles in areas of known crevassing, the manual provided:
Some deep field winter travel routes cross areas of crevassing (e.g. the Sorsdal Glacier). The Trip Leader and Station Leader must consult with the [Operations Manager] if any winter field trip involves crossing or working in crevassed areas. … The hazards associated with travelling in crevassed terrain should be discussed prior to leaving station and procedures put in place to mitigate the risks involved.
(emphasis added).
51.The 2015 Field Manual provided a detailed and comprehendible description of the hazards and mechanics associated with crevasses. Additionally, it contains the following advice under the heading, 10 – Snow and ice:
Avoid crevassed zones if possible, even if it entails a considerable number of detours. Consult maps and field notes from previous journeys. Because an area has been crossed without incident, do not assume that it is crevasse-free. The previous parties may have been lucky. Do not even assume that regularly used routes are crevasse-free. Stick to approved travel routes when traveling off station, there have been a number of serious crevasse incidents where people have been exploring in apparently safe areas.
52.Under that same heading the manual also provided a diagram depicting several features of crevasses, including the tendency of crevasses to be located at the ‘hinge zone’ where an ice sheet transitions into an ice shelf. That boundary is also known as the ‘grounding line’.
53.Helicopter Resources also had publications, including comprehensive manuals. The Pilots Operations Safety Manual Volume 2: Aircraft operations (helicopters only), contained a syllabus for training in relation to Antarctic and sub-Antarctic operations. Under the heading, Special Hazard Focus, it contained the following:
3. CREVASSING
The Amery ice shelf is a large area 80 nautical miles south west of Davis where extensive scientific activity has taken place for many years. This predominately featureless area covers 40,000 square kilometres of floating ice shelf. It is also an example of an area that is heavily crevassed. It is possible to work in between crevasses provided they are identified by a thorough reconnaissance. Crevasses are more easily identified during late afternoon and evening hours with low sun angles.
(i)Crew must be thoroughly briefed as to the dangers of working in a crevassed area and it is preferable to carry an FTO (field training officer).
(ii)After identifying a safe [landing zone] land and remain light on skids.
(iii)The FTO will deploy outside the aircraft probing alongside the aircraft skids plus a safe area adjacent to the helicopter, checking for a stable [landing zone] prior to shut down. Wait for 'thumbs up' signal prior to shut down.
(iv)Plan to depart the area when an emergency landing would still be possible.
The incident site
54.The incident site was located approximately 90 nautical miles east of Davis Station, which equated to approximately one-hour flight time in the helicopters used during the season. The terrain was flat and relatively featureless, and involved an ice sheet or shelf surface, with parts covered in snow.
55.Significantly, the site was located proximate (within 2.5 km) to the grounding line where crevasses were likely to form due to tidal fluctuations and the transition of the relatively slow ice sheet flow to the relatively fast ice shelf flow. It was also located at a place where there was a very high gradient (rate of change) in the ice velocity, transverse to the flow of ice. That also increased the likelihood of crevassing. Accordingly, the ice at the location was likely to experience the following stressors that cause crevasses to form:
(a) hinge stresses due to ice on the ocean pivoting relative to the ice on the land;
(b) tension stresses, due to the ice on the ocean travelling away faster than the ice approaching along the land; and
(c) shear stresses, due to the ice at one point of the flow travelling downstream at a different speed to ice at a nearby lateral point.
Monitoring and supervision
56.The pilots’ flights were deliberately tasked by either the Station Leader or the Operations Coordinator. During the flights, the pilots remained in contact with, and reported their locations to, the Davis Station duty radio operator. While there may have been discussions from time to time between the pilots and staff at Davis Station following flying tasks, there was no structured or documented de-briefing process.
57.The Davis Station radio operator and Helicopter Resources were able to remotely monitor the movement of the helicopters. Helicopter Resources periodically received copies of paperwork about the taskings and use of the helicopters. Additionally, there were regular telephone conferences between the pilots in Antarctica and the Chief Pilot in Hobart. Further, the pilots were encouraged to telephone the staff at Helicopter Resources in Hobart, when necessary, and that could be done at any time.
Risk assessments
58.After the Station Leader or Operations Coordinator allocated the pilots a flying task, a risk assessment was conducted.
59.The first step was a meteorological briefing. Thereafter, the Operations Coordinator and Senior Pilot, and possibly others, conducted an Air Task Risk Assessment (ATRA). That assessment involved a discussion using a form and associated list of considerations. The form and list were used to guide and document the discussion. The list included, amongst other things, the following considerations:
Performance limitations
Procedural limitations
Current and forecast weather
Lighting / sun angle / visibility
Comfort level / circadian rhythm
Obstacles / crevasses / snow
and provided a range of possible controls, including:
Reject the task
Adjust … the time of tasks to achieve … lighting
Avoid last minute changes to task
Make plans for possible contingencies
Gather information to minimise uncertainties
Conduct a reconnaissance
60.All involved in the tasking and flying of the helicopters were aware that the pilots had the option to refuse to undertake or continue with a task, and that included landing at a particular site.
61.The pilots would also complete their own Helicopter Resources' Daily flight log and air task – Risk assessment. This formed part of the paperwork associated with individual aircraft.
The flight of 8 December 2015
62.On 8 December 2015 Mr Patterson was tasked to fly four drums of aviation fuel to a location on the WIS in support of Project King, and then return to Davis Station.
63.That location was recorded as already being a fuel cache site, with the last visit being in 2012. The distance to that site was on the edge of the one-hour flying limit imposed for search and rescue reasons. It was possible for the helicopter to fly to the site with the drums, and then return to Davis Station. However, the range of the helicopter was such that it could not carry the drums the entire way back to the station.
64.The ATRA recorded the following assessment:
Identified hazards / risk
Mitigators implemented / in place
Over ice / snow flight
Good weather forecast for sling loading – good surface and horizon definition
Known fuel depot site
Sling load
Within [search and rescue] range
65.Ms Labudda was of the understanding that the site had been last visited in 2012 but did not know what, if any, assessment of the site had been conducted. She was of the understanding that Mr Patterson could fly to the site and, if he was not comfortable landing, return to the station without landing at the site.
66.Mr Patterson recorded in the aircraft Daily flight log and air task – Risk assessment, the following entry:
Additional identifiable hazards
Risk control measures
Snow landings
Good day for surface definition
67.The flight log records that Mr Patterson departed Davis Station at 1420 hours, travelled to the WIS and returned at 1702 hours. (It also recorded numerous subsequent flights to and from the fixed wing landing strip located near Davis Station, with the last flight ending at 2236 hours.)
68.When Mr Patterson arrived at the planned location, he was not able to locate the existing fuel drums and did not like the look of the surface for landing. He decided to carry on further to locate a better site to land the fuel drums that he was carrying. He noticed the ice was progressively less crevassed further away from the coast. He located a site of blue ice and circled the site a couple of times. He then landed the drums, then the helicopter, disconnected the drums and retrieved the long line and drum hooks. During this process he walked on the ice which he observed to be very solid and like concrete. He also took photographs.
69.At some point before landing, Mr Patterson communicated his intentions to the duty radio operator at Davis Station and was not told to do anything different. The radio log records several communications including the following prior to Mr Patterson landing:
By [satellite phone] 1st [way point] too many crevasses – moving to second [way point] 10 nm away in search of fuel drums will call again by [satellite phone] on the ground
70.Mr Patterson then returned to Davis Station without incident. He later spoke separately with Mr Benavente, Ms Labudda and Mr [De] Bruyn and explained what had occurred. He also provided Mr Benavente with the coordinates and a photograph of the landing site. That same day, Mr Benavente emailed those coordinates and photograph to Ms Labudda. During a subsequent rotation hand over take over, Mr Patterson described the site to Messrs Sutton and Wood.
71.There was no evidence that anyone considered that the original site may have moved with the flow of ice over the intervening three years.
The flight of 28 December 2015
72.On 28 December 2015, Messrs Sutton and Wood were tasked with transporting eight drums of fuel to Nunatak 1. The distance to Nunatak 1 from Davis Station required a refuelling stop at the incident site. It also required the use of two helicopters, which were described as providing mutual search and rescue capability.
73.The ATRA noted ‘Stopping at fuel cache on Western Ice Shelf to refuel’, and recorded the following assessment:
Identified hazards / risk
Mitigators implemented / in place
Snow landing
Good weather conditions
Sling loading
Good weather conditions
74.Mr Sutton made no entry under ‘additional identifiable hazards’ or ‘Risk control measures’ in the aircraft Daily flight log and air task – Risk assessment. The flight log records he left Davis Station at 0911 hours and returned at 1409 hours.
75.Mr Wood recorded similar flight times, and the following entry in the aircraft Daily flight log and air task – Risk assessment:
Additional identifiable hazards
Risk control measures
Unknown landing site
Recon
76.Messrs Sutton and Wood flew in separate helicopters to the incident site, each carrying four drums of fuel on a long line. Both helicopters landed at the incident site. The site still had a surface of exposed blue ice. The helicopters were refuelled using the drums already at the site. A drum was caught briefly in the top of a narrow crevasse while being rolled to Mr Wood’s helicopter by both pilots. There were also other cracks and crevasses in the ice visible within metres behind the helicopters. Mr Sutton expressed reservations about the presence of the crevasses, and Mr Wood responded by saying words to the effect, ‘Better the devil you know than the one you don’t’.
77.Both helicopters [were] then flown to Nunatak 1. While it was originally planned to land on the nunatak outcrop, it was assessed as too small, and the eight drums of fuel were ultimately cached on a nearby area of blue ice.
78.Mr Sutton later informed Ms Labudda about ‘cracks’ in the blue ice at the incident site and about Mr Wood’s comment ‘Better the devil you know’.
The flight of 11 January 2016
79.On 11 January 2016, Ms Labudda requested Mr Sutton transport four drums of fuel to the incident site on the WIS. Mr Sutton expressed reservations about flying that distance without the support of a second helicopter. Ultimately, Messrs Sutton and Wood were tasked by Ms Labudda to transport eight drums of fuel to the incident site using two helicopters.
80.The ATRA recorded the assessment:
Identified hazards / risk
Mitigators implemented / in place
Snow landing
Good weather conditions
Been at this location previously this year
Sling loading
Suitable conditions
81.During the ATRA process, both Mr Sutton and Mr Wood were present and neither raised any concerns with Ms Labudda about their earlier observations of the incident site.
82.In the aircraft Daily flight log and air task – Risk assessment, Mr Sutton recorded departing Davis Station at 1424 hours and arriving at 1553 hours. He also made the following entry:
Additional identifiable hazards
Risk control measures
Stress & fatigue
Team work (sic) and good coms
It is unclear whether these last entries were made before or after the incident involving Mr Wood. (The entries may relate to the response to the incident, which included Mr Sutton flying his helicopter between Davis Station and the WIS a further five times that day.)
83.Mr Wood made no entry under ‘Additional identifiable hazards’ or ‘Risk control measures’ in the aircraft Daily flight log and air task – Risk assessment. He recorded flight times similar to those recorded by Mr Sutton.
84.Messrs Sutton and Wood flew to the incident site. Both expected the site to be blue ice. However, no blue ice was visible. Instead the site was completely white with two drums protruding from a shallow layer of snow.
85.Mr Wood was ahead of Mr Sutton, flew directly into the site, and lowered the fuel drums under his helicopter to the snow. He continued to descend. Mr Sutton requested by radio that Mr Wood drop his long line and allow Mr Sutton to place his drums beside the others. Mr Wood dropped his long line and disappeared from Mr Sutton’s sight. Mr Sutton placed his drums next to the others and dropped his long line. The cracks and crevasses were not visible through the snow and there were no further communications before both helicopters landed in locations similar to where they had landed previously. However, both helicopters were located further away from the fuel drums than they had been on the previous visit. Mr Sutton shut his helicopter down. Mr Wood left his helicopter running.
86.Both pilots stepped out of their helicopters and walked to the drums. On the way, Mr Sutton stepped into a crevasse up to about his knee. He mentioned that event to Mr Wood when they were side by side at the drums disconnecting their long lines. Both walked back to their helicopters to stow their long lines. Mr Sutton last saw Mr Wood just in front of the latter’s helicopter. Mr Sutton stowed his long line and then noticed he could no longer see Mr Wood. Upon further investigation Mr Sutton observed a hole in the snow immediately adjacent to the left skid of Mr Wood’s helicopter. That hole exposed a crevasse that ran transversely under both skids. Mr Wood’s footsteps led to the hole, and Mr Wood’s long line protruded from the hole.
87.Mr Sutton shut down Mr Wood’s helicopter and managed to speak briefly to Mr Wood who could be heard to respond from, but not seen in, the crevasse. Mr Sutton notified the duty radio operator at Davis Station and hastily flew back to Davis Station in his helicopter to collect a crevasse rescue team.
88.The rescue team of three and Mr Sutton travelled back to the incident site in Mr Sutton’s helicopter. The team conducted heli crevasse probing before the helicopter finally landed and shut down at 1855 hours.
89.Mr Wood was retrieved from the crevasse and transported directly to Davis Station. That trip took place between 2000 and 2045 hours. Tragically, Mr Wood died from hypothermia, which was caused by the time he spent trapped in the crevasse.
90.Mr Sutton returned to the site to collect the two remaining FTOs and to tie down Mr Wood’s helicopter, before returning to Davis Station at 0036 hours. When leaving the site for the final time, the crevasse was clearly visible from the airborne helicopter due to the low angle of the sun.
The particularised measures
22․Particulars of the measures that the prosecution alleged ought to have been taken to ensure the health and safety of workers were set out in each Information. So far as the charges against the Commonwealth were concerned, the measures were set out in paragraph 15 of the particulars relating to charge 1, and paragraph 16 in relation to charge 3. The particulars in relation to charge 1 provided:
15. The Defendant failed to provide and maintain a safe system of work for the establishment and utilisation of deep field fuel cache sites, including the 2012 Site and the Incident Site in that;
15.1it failed to ensure that before workers were permitted to land a helicopter and/or walk on the ice surface at the deep field fuel cache sites, including the 2012 Site and the Incident Site, the sites had been subject to the following testing and assessment to confirm that, so far as was reasonably practicable, there were no crevasses at each site:
15.1.1 obtaining and analysing publicly available satellite imagery of the site to determine if there was evidence of crevassing and the location of the grounding line (where crevassing is likely to be more prevalent) and, if such analysis indicated that there was likely to be minimal crevassing at that site, proceeding to the next step of:
15.1.2 engaging in an air task risk assessment process in respect of the site for the purposes of identifying risks of crevasses; and thereafter:
15.1.3 undertaking low-light helicopter reconnaissance by someone suitably trained to do so, such as a Field Training Officer, to inspect the site and determine if there was evidence of crevasses, including crevasses hidden by snow bridges; and, if such analysis indicated that there was likely to be minimal crevassing at that site, proceeding to the next step of:
15.1.4 undertaking helicopter-crevasse probing of the site by someone suitably trained to do so such as Field Training Officers; and
15.1.5 marking out the boundaries of the area in which it was deemed safe to land and walk and beyond which would be an exclusion zone; and
15.1.6 re-doing the steps at 15.1.1 to 15.1.5 if more than two weeks had expired or if there had been a significant weather event since the last assessment.
23․The particulars provided for charge 3 were in similar terms to those for charge 1 except the relevant paragraph number was 16 rather than 15.
24․As originally drafted, the particulars went on to provide further particulars (in paragraphs 15.2-15.3 and 16.2-16.3, respectively). However, as a result of elections made by the prosecution at the commencement of the trial, those particulars were not pressed in relation to charges 1 and 3.
25․In these reasons, the measures set out in paragraph 15.1 and equivalent paragraphs will be described as “the package of measures”. Individual measures equivalent to those in subparagraphs 15.1.1-15.1.6 will be described as measures 1 to 6, respectively.
26․The package of measures was also picked up in the particulars of the charges against Helicopter Resources. In each of the three charges, the allegation against Helicopter Resources was that it failed to “ensure” that the Commonwealth had undertaken the package of measures.
How the prosecution sought to prove its case
27․A significant feature of the prosecution case was the manner in which it sought to establish that there were reasonably practicable measures that ought to have been taken by the defendants. This was done largely by reference to measures that were in fact subsequently taken by the Commonwealth, in the form of the Australian Antarctic Division (AAD), following the death of Mr Wood and by reference to the evidence of Dr Colgan, an expert glaciologist.
28․In relation to the measures taken by the AAD following the death of Mr Wood, it was asserted, by reference to the taking of those measures and the taking of similar measures in relation to other aspects of the AAD’s operations in Antarctica, that the particularised measures were reasonably practicable ones which ought to have been taken prior to the charged incidents.
29․The evidence of Dr Colgan was relied upon in order to prove facts which would assist in supporting the contention that the proposed measures were reasonably practicable ones, but it did not directly address the package of measures proposed by the prosecution.
30․In fact, notwithstanding that the prosecution called a number of witnesses who were or had been employees of the AAD and who had long experience with helicopter operations in Antarctica, no witness gave evidence that the package of measures identified in the particulars was reasonably practicable. Further, no evidence was called in relation to the practices of other governments or entities conducting helicopter operations elsewhere in Antarctica.
31․As a result, the establishment beyond reasonable doubt that the particularised measures were reasonably practicable ones was dependent upon conclusions to be drawn by the tribunal of fact itself, rather than by reference to the opinion of a person with actual experience in Antarctica or the conduct of other comparable governments or entities elsewhere in Antarctica. Given that the field of helicopter operations over crevassed ice sheets and ice shelves in Antarctica is something not commonly within the experience of judicial factfinders, it is a case in which it would not be difficult to establish a reasonable doubt about whether, in the absence of hindsight, the complex cascading package of measures proposed was a reasonably practicable one.
The magistrate’s reasons
32․The magistrate published two sets of reasons. The first related to an application by the prosecution to amend the particulars of the charges: May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 1) [2019] ACTMC 20 (May (No 1)). The second involved the determination of the substance of the charges: May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31 (May (No 2)).
May (No 1)
33․So far as the application to amend particulars was concerned, this was an application that was made on the first day of the hearing and refused on the second day of the hearing. The proceedings had been commenced 18 months’ earlier and the matter listed for a six-week hearing. As originally particularised, the charges had alleged that the reasonably practicable measures that ought to have been taken to avoid the hazard of hidden crevasses were the package of measures, namely measures 1 to 6.
34․The most significant amendment that was sought was to amend the particulars so that they alleged that each of measures 1 to 6 were separately required to be carried out, with the consequence that if the prosecution proved that any one of them had not been carried out, then the charge would be made out.
35․The provision relied upon for the purposes of the amendment was s 28 of the Magistrates Court Act 1930 (ACT). The magistrate proceeded on the basis that, for the purposes of enlivening the operation of that provision, the prosecutor could “object” to the form or substance of the information: May (No 1) at [9].
36․The prosecutor had pointed to “a perceived risk about their prospects of securing a conviction” as the alleged defect for the purposes of the provision. The prosecutor identified that its prospects of securing a conviction would be better if the various steps alleged to be required for the purposes of assessment of the site were alternative measures rather than cumulative ones. The magistrate was not satisfied that the possibility of a stronger case amounted to a “defect in substance or form” for the purposes of s 28: May (No 1) at [11].
37․Notwithstanding this conclusion, which was dispositive of the application, his Honour went on to consider the other objections made by the defendants to the amendment of the particulars. He rejected a contention that the amendment would introduce impermissible uncertainty and duplicity: May (No 1) at [12]. However, he accepted that, while the underlying substratum of facts would not change, the amendment of the prosecution case would require the defendants to focus upon each of the steps within the site assessment process, rather than just a chosen few. In circumstances where the proceedings had been on foot for 18 months and the defendants would have made a range of forensic decisions based on the way in which the claim was put, the bringing of the application on the first day of the six-week hearing would create unfair prejudice amounting to injustice to each defendant: May (No 1) at [14]. Although an adjournment had not been suggested as a remedy for such injustice, the magistrate indicated that he would have been very reluctant to accept that approach, having regard to the lack of explanation for the late timing of the application and the substantial impact upon the business of the court that would arise from the adjournment of the hearing.
38․This decision of the magistrate was not challenged in the appeal to the Supreme Court.
May (No 2)
39․At the outset of May (No 2), the magistrate emphasised that the proceedings were not an administrative commission of inquiry which was inquisitorial in nature, but rather a criminal prosecution, which is adversarial in nature. It was therefore necessary for the prosecution to identify the “specified measures” which it alleged were required to be taken and for the court to decide whether the charges had been established by reference to those specified measures. The magistrate recorded at [6]:
It is not for the Court to substitute the prosecution’s charges or specified measures with variations that may have better prospects of success or fit better with the way the evidence fell during the hearing.
40․The magistrate described the relevant provisions of the WHS Act and the specified measures that the prosecution asserted ought to have been taken.
41․The magistrate set out some uncontroversial principles as to the nature of a criminal trial. He then set out what was described as “the unchallenged facts”, which are set out earlier in these reasons (see [21] above).
42․Rather than address the charges by reference to whether the elements of the offence had been established, the magistrate then went on to pose and address a series of questions which he had identified. They were:
(a) Did the establishment of fuel cache sites amount to a business or undertaking by the Commonwealth?
(b) Does the [WHS Act] impose a duty on Helicopter Resources?
(c) What was the probability of crevasses at the incident site?
(d) Was a reconnaissance conducted immediately prior to landing on 11 January 2016?
(e) Did the Civil Aviation Safety Authority’s rules prevent the carrying of Field Training Officers when carrying fuel externally by sling?
(f) Did any failure to comply with a duty expose an individual to a risk of death or serious injury?
(g) Did the Commonwealth fail to comply with a health and safety duty?
(h) Did Helicopter Resources fail to comply with a health and safety duty?
43․Helicopter Resources had submitted that the prosecution had failed to establish that the pilots were carrying on work as part of the conduct of a “business or undertaking” of the Commonwealth when operating at the fuel cache sites. The magistrate rejected this submission, finding that the Commonwealth’s “business or undertaking” included the activities of the Helicopter Resources pilots at, or when approaching, the incident site: May (No 2) at [102].
44․The magistrate next considered the submission made by Helicopter Resources that the terms of s 12 of the WHS Act had the effect that the Act did not apply to it. The magistrate (at [105]) pointed out that each component of s 12 of the Act contains a nexus to the Commonwealth or a Commonwealth public authority. However, one element of s 12(1) applies to a “place” where the Commonwealth or a public authority conducts a business or undertaking. The magistrate found (at [111]) that the Commonwealth was conducting a business or undertaking at various sites in Antarctica, including the incident site. The pilots were employees of a contractor carrying out work for the business or undertaking and were thus “workers” under the Act. Section 8 of the Act provides that a “place” is “where a worker goes, or is likely to be, while at work”, namely, the incident site. Therefore, the Act applied to the incident site and imposed a work health and safety duty on Helicopter Resources.
45․Next, the magistrate made findings about the probability of crevasses at the incident site based upon the evidence of Dr Colgan, which the magistrate accepted. He had earlier made findings (May (No 2) at [54]-[55] set out at [21] above) based on the evidence of Dr Colgan about the propensity of the incident site for crevassing. He accepted the evidence of Dr Colgan that a random step on the surface would have a 98.5 percent chance of not being above a crevasse but that by the eightieth step the probability would be reduced to approximately 30 percent: May (No 2) at [113]. In other words, by the eightieth step, “the probability of placing a foot into a hazardous crevasse was 70%”. The magistrate accepted that if it was assumed that hazardous crevasse spacing was between 20 m and 200 m, you would be “hard pressed” to find an area 100 m x 100 m without a crevasse: May (No 2) at [114].
46․The magistrate next addressed whether or not an aerial reconnaissance had been conducted prior to landing on 11 January 2016. This involved an assessment of the evidence of the pilot of the other helicopter, Mr Sutton, and video evidence taken from Mr Wood’s helicopter at the relevant time. The magistrate concluded that he could not make a positive finding that neither Mr Wood nor Mr Sutton had conducted an aerial reconnaissance before landing at the incident site.
47․He then addressed whether or not the Civil Aviation Safety Authority’s rules prevented the carrying of Field Training Officers when carrying fuel externally on a sling. The surviving pilot, Mr Sutton, had given evidence that Field Training Officers could not be carried while conducting sling load operations. The magistrate concluded that the provisions of Civil Aviation Order 29.6, made under the Civil Aviation Regulations 1988 (Cth), could permit the carrying of Field Training Officers either because the officer would be carrying out “an essential function in connection with sling load operations” or because the Civil Aviation Safety Authority could grant an exemption. There was no evidence that an exemption had been requested or provided.
48․The magistrate then addressed whether any failure to comply with a health and safety duty exposed an individual to the risk of death or serious injury. The charges alleged that each pilot had been exposed to a risk of serious injury or death as a result of falling into a crevasse. The hazard was identified as being “hidden or snow-bridged crevasses”. However, it was only on the third occasion (11 January 2016) that there was snow covering at the landing sites. The magistrate found that it was sufficient that the pilots had been sent out to walk on terrain “where such crevasses may exist and be covered by snow” to establish the creation of a risk of serious injury or death: May (No 2) at [127].
49․The magistrate then turned to the fundamental issue arising in relation to each of the charges against the Commonwealth, namely, whether the Commonwealth failed to comply with a health and safety duty.
50․The Commonwealth had submitted that this issue required a two-step process: a determination that the system in place failed to comply with the defendant’s health and safety duty, and a determination that the defendant had failed to take the steps set out in the particulars that were reasonably practicable. The magistrate did not accept that these steps were separate. He concluded that both were relevant, but must be considered together: May (No 2) at [131].
51․The magistrate then examined and made findings in relation to the arrangements that were in place, the particularised measures relating to site assessment and the particularised measure relating to personal protective equipment.
52․So far as the extant arrangements were concerned, the magistrate found that the pilots were not directed to only land on blue ice surfaces. He found that, because the cache sites were beyond the range of helicopters to be able to return with fuel drums to Davis Station, those drums were required to be released at some point, along with the attached drum hooks and long line. There were no procedures in place to address the possibility that a pilot may not be able to locate a fuel cache site or that the site may be covered in snow and no longer suitable to land at: May (No 2) at [135]. The magistrate rejected the submission that, because the pilots were highly qualified, they, and not the Commonwealth, were responsible for choosing appropriate and safe landing sites. The magistrate found that while the pilots and Helicopter Resources were helicopter subject matter experts, the AAD hosted the operations and was the subject matter expert with respect to operations in Antarctica.
53․The magistrate then turned to address the cascading series of measures that the prosecution alleged should have been undertaken prior to the pilots landing and walking on the sites. The magistrate determined that “each element of that series and the series as a complete set were reasonably practicable in the case of both the 2012 fuel cache site and the incident site”: May (No 2) at [138]. He said (at [139]) that he had:
… approached the assessment of the steps with a focus on what would be reasonably practicable for these particular sites at those times, rather than considering a broader question about whether these steps would be reasonably practicable for all helicopter landings at all remote locations.
54․He then addressed each of the measures individually.
55․He found that examination of publicly available satellite imagery would have allowed the selection of a fuel cache site away from the grounding line and away from a location of a high ice velocity gradient: May (No 2) at [142].
56․He found that an air task risk assessment did occur on each occasion and hence was reasonably practicable: May (No 2) at [144].
57․In relation to low sun helicopter reconnaissance, the magistrate addressed this issue on the basis that a preliminary flight would have been required in addition to the flight carrying the sling load. Notwithstanding the challenging weather in Antarctica, the time that it would take to conduct a preliminary flight and heli crevasse probing and the likely after-hours timing of that process, the magistrate still concluded that it was reasonably practicable. He found that after-hours work was an unremarkable feature of many workplaces, noting that his assessment took into account the inherent risk of the additional flight and that the measure remained reasonably practicable even if it was required to be repeated for a subsequent visit: May (No 2) at [148]-[150].
58․The magistrate then considered the process of heli crevasse probing, which involves using two Field Training Officers to physically probe the snow at the landing site in order to detect any hidden crevasses. The magistrate concluded that this would most likely necessitate an additional flight prior to the carrying of the sling load, but that it could be combined with the low sun reconnaissance step. He found that it was a technique known to the AAD and conducted at other locations. The fact that it may be unnecessary if the landing site was on blue ice did not mean that it was not a reasonably practicable measure. The magistrate found that it was reasonably practicable even if it was required to be repeated for a subsequent visit: May (No 2) at [153].
59․The next step was to mark the boundary of the safe area. This was relatively uncontroversial and found to be reasonably practicable even if it was required to be repeated for a subsequent visit: May (No 2) at [154].
60․The final specified measure for site assessments was to repeat the steps if two weeks had passed or a “significant weather event” had occurred. The submissions of the defendants focused on the potential unworkability of this measure. The magistrate made it clear that he considered the measure only in relation to the particular sites, rather than for all helicopter landings at all remote locations in Antarctica. He found that this measure did not require that the steps be repeated every 14 days, and that once the specified measures were defined and anticipated, the AAD could have adjusted resources and work sequencing to minimise the number of trips necessary in order to service the project: May (No 2) at [156].
61․The magistrate’s conclusion on the specified measures relating to site assessment was as follows:
157. Ultimately, when I consider:
(a) the likelihood of falling into a crevasse at the 2012 and incident sites;
(b) the real risk of serious injury or death if that were to occur;
(c) the fact that the AAD knew about the crevasse hazard and about the methods specified that could minimise that risk;
(d) that those specified measures were available to the AAD; and
(e) after assessing the [extent] of the risk and the available ways of eliminating or minimising the risk, the cost associated with the available ways of eliminating or minimising the risk, including whether such costs were grossly disproportionate to the risk;
I am satisfied beyond reasonable doubt that … the extant measures did not meet the health and safety duty, and the cascading series of steps of the specified measures, individually and together, were reasonably practicable to ensure the health and safety of the pilots. I therefore find that in relation to the first and third flights the Commonwealth failed to comply with its health and safety duty.
62․The magistrate did not give any separate consideration to the issue raised by s 32(c) of the WHS Act, namely, whether the breach exposed an individual to a risk of death or serious injury. That would have required findings about the application of the package of measures in the circumstances that existed at each of the occasions the subject of charges 1 and 3.
63․The magistrate then turned to the particularised measure involving personal protective equipment the subject of charge 2. This related to the second flight and alleged that the pilots should have been required to wear appropriately waterproofed and thermally insulated clothing at all times when outside the helicopter at remote field sites. The magistrate said he was “not convinced that this requirement was reasonably practicable”. The magistrate referred to the evidence that made it clear that bulky clothing could not be worn in the helicopter because it was too warm. He referred to the fact that Mr Wood was not wearing his thermals on the third occasion and that it may have been difficult to put them on prior to exiting the aircraft. He found that an inflexible requirement that pilots wear all issued survival clothing at all times outside the helicopter would remove the opportunity for pilots to regulate their own body temperature, which in turn may be counter‑productive. He recorded that he was left with a reasonable doubt about the reasonable practicability of the measure: May (No 2) at [160]-[161].
64․Finally, the magistrate turned to the question of whether Helicopter Resources failed to comply with a health and safety duty. On this issue, the magistrate found that it was the Commonwealth that “was exclusively placed to be informed about environmental and logistical factors and to manage the movement and placement of personnel on the ground”. He found that, unlike the AAD:
Helicopter Resources was not well placed to assess the likelihood of crevasses being present at the site or know all the various ways to minimise the risk of falling into a hidden crevasse, or the various costs, financial and otherwise, associated with implementing any, some or all of the available measures.
65․He was therefore “not persuaded beyond reasonable doubt, that it was reasonably practicable for Helicopter Resources to have insisted upon the specified measures being conducted before permitting its pilots to land and walk on remote sites”: May (No 2) at [167].
66․For those reasons, he found the Commonwealth guilty of the charges that made reference to site assessment measures (CC 17/44149 and CC 17/44151) but not guilty of the charge relating to personal protective equipment (CC 17/44150). Helicopter Resources was found not guilty on all charges (CC 17/44152, CC 17/44153 and CC 17/44154).
The appeal judge’s reasons
67․The Commonwealth appealed to the Supreme Court against the finding that it was guilty on charges 1 and 3. The prosecution appealed against the acquittal of Helicopter Resources on all three charges.
68․The appeals were brought pursuant to different statutory provisions. The Commonwealth appealed against its convictions pursuant to s 208 of the Magistrates Court Act. The prosecution (referred to in the appeal judge’s reasons as Comcare) appealed against the acquittal of Helicopter Resources pursuant to the review appeal provision in s 219D of the Magistrates Court Act.
69․In his Honour’s reasons, the appeal judge said that it was common ground between the parties that if the Commonwealth appeal succeeded, then Comcare’s appeal against Helicopter Resources would necessarily fail: May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116 (AJ) at [11].
70․The appeal judge indicated that only a limited number of the issues identified and addressed by the magistrate were agitated on appeal. They were:
…
(f)Did any failure to comply with a duty expose an individual to a risk of death or serious injury?
(g)Did the Commonwealth fail to comply with a health and safety duty?
(h)Did Helicopter Resources fail to comply with a health and safety duty?
71․The appeal judge set out the measures that the prosecutor alleged needed to be carried out. His Honour determined that the magistrate ought to have found, in relation to both defendants, that the first measure concerning satellite imaging was not reasonably practicable and therefore the balance of the measures fell with it. His Honour recorded that the defendants focused their attack on the first measure by reference to the lack of definition or explanation of the term “minimal crevassing” and that the presence of a person capable of interpreting any available satellite imagery was not established.
72․His Honour said that if the existence of “minimal crevassing” was to generate the balance of the measures that were at the core of the prosecution case, then that expression needed to be properly defined: AJ at [30]. His Honour then referred to the reasons of the magistrate in relation to the availability and utility of satellite imagery. That was summarised by the appeal judge as involving acceptance that satellite imagery might be “years old” and might not indicate anything beyond a propensity for crevassing, but nevertheless may be an important step because new imagery may become available and the new assessment may provide additional information: AJ at [33].
73․His Honour described this as having “a somewhat speculative basis”, which depended upon the possibility that at some time satellite imaging may be useful: AJ at [34]. However, the prosecution measures had to be reasonably practicable before every helicopter flight or at least every day of a helicopter flight. His Honour said (at [34]):
Satellite imagery, without more, no doubt could have its place in an overall regime controlling helicopter flights. But to require it before each flight, or even daily, and as a necessary precondition to the taking of other measures, does not fit within the description of being reasonably practicable.
74․His Honour then referred to the evidence of Dr Colgan as to the qualifications that would be necessary to interpret satellite imagery. The appeal judge set out the relevant passage from Dr Colgan’s report which indicated that it would be necessary to have a Masters degree in science or engineering with a specialisation in remote sensing and “training in discipline-specific algorithms and file structures such as the software and data standards of the US National Snow and Ice Data Centre and other pertinent polar data portals”. Dr Colgan said that such expertise “is usually gained during graduate studies that provide at least one year (approximately 1000 hours) of supervised experience in cryospheric remote sensing”. The appeal judge said there was no evidence to indicate the presence of persons having these qualifications within the AAD and certainly not being available on an on-call basis as part of the standard measures before a helicopter flight: AJ at [36]. As a result, his Honour found that the magistrate erred in finding that the use of satellite imagery was a reasonably practicable measure.
75․Because the prosecution was unable to establish the reasonable practicability of this measure and, because of the way in which the case had been particularised, the prosecution was required to establish the reasonable practicability of the whole package of measures, the failure to establish beyond reasonable doubt the reasonable practicability of one of the measures was enough to defeat the charges against both defendants.
76․However, his Honour then went on to address other matters in deference to the magistrate’s reasons and the submissions of the parties.
77․Measure 6: His Honour noted that the Commonwealth attacked the need to repeat the measures if “more than two weeks had expired or if there had been a significant weather event since the last assessment”. The submission of the Commonwealth was that, absent hindsight, 40 days would have been an appropriate interval. Although his Honour thought there was “substance in the submission”, he focused upon the reference to “a significant weather event” in the formulation of the particularised measure. He said that in Antarctica, a significant weather event is commonplace and could occur more than once a day. In those circumstances, the repetition of the measures, in particular the reference to satellite imagery, could not be seen as reasonably practicable: AJ at [42].
78․Dealing with matters common to both defendants: The appeal judge rejected the Commonwealth’s submission that the magistrate had erred in addressing matters that were in common between the charges together: AJ at [44].
79․Use of “required” or “permitted”: The appeal judge addressed a submission by the Commonwealth that charge 3 involved a mandatory direction that the pilots were “required” to land and walk on the ice surface so that they did not have discretion as to whether or not to land their aircraft. The appeal judge rejected the submission as it involved an overstatement of the significance of the use of the word “required”: AJ at [61].
80․“Check” or “ensure”: His Honour made it clear that, notwithstanding the reference by the Commonwealth to Helicopter Resources “checking” that the Commonwealth had undertaken the measures, he approached the matter on the basis of the case put before the magistrate which required that Helicopter Resources “ensure” the Commonwealth’s compliance with measures: AJ at [69].
81․The existence of a risk: The Commonwealth said that, in relation to the flights on 8 and 28 December 2015, the pilots had landed on clear blue ice. There was therefore no identifiable risk facing him because there was no crevasse in which to fall. The magistrate had dealt with this issue on the basis that the helicopters would take off without knowledge of whether or not the landing site would be covered with snow. His Honour referred to the decisions in Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297; 137 IR 253 and Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121. His Honour said that it followed from these decisions that he disagreed with the conclusion of the magistrate that the pilots were exposed to a risk of serious injury or death on those occasions when the landings occurred on clear blue ice. That would have led to the dismissal of the charges in relation to the earlier flights as distinct from the flight on 11 January 2016, where the landing occurred on snow.
82․Causation under s 32: His Honour found that a finding of causation was necessary for the purposes of s 32(c). Although the magistrate had addressed the question of breach required by s 32(b), he had not then gone on to deal with s 32(c). His Honour said: “There is a lacuna in respect of causation which would also have been fatal to the prosecution.” The appeal judge did not make it clear whether that is a lacuna in the reasons or instead something which was not established by the evidence. The appeal judge then stated that the test to be applied in relation to causation was that stated in Carmichael v The Commonwealth of Australia (unreported, Magistrates Court of Victoria, Magistrate Hawkins, 19 November 2020): AJ at [89].
83․Performance of a pre-landing reconnaissance: His Honour addressed the submissions made by the Commonwealth and Helicopter Resources that the magistrate ought to have found that no reconnaissance was undertaken by Mr Wood and that the absence of a reconnaissance as part of the package of measures rendered them not reasonably practicable. Both of those submissions were rejected. His Honour considered that, although there was strong evidence to suggest that Mr Wood had not conducted a reconnaissance, there was enough contrary evidence to enable the magistrate to have a doubt about whether or not he had conducted a reconnaissance, which was sufficient to justify the finding the magistrate made: AJ at [99].
84․So far as the failure to include a pre-landing reconnaissance as part of the package of measures was concerned, the appeal judge found that the fact that there was yet another reasonably practicable measure missing would not have affected the status of the proposed measures. His Honour also said that the need to perform a reconnaissance was such a recognised part of the standard obligations of a pilot that it could be accepted without specifically stating it to be the case: AJ at [103].
85․Costs of the required measures: The appeal judge addressed a submission made by Helicopter Resources that the absence of evidence of monetary and resource costs rendered any assessment of their reasonable practicability impossible. The prosecution referred to the evidence establishing a flying cost of $720 per hour and therefore a two‑hour flight cost of $1440. His Honour noted that this did “not really deal with the overall issue of the total costs especially as related to the provision of extra resources”. His Honour considered that the magistrate had not dealt comprehensively with the costs issue, but did “not go so far as to say that [the magistrate’s] limited dealing with the issue was indicative of specific error”: AJ at [107].
86․Finally, his Honour addressed the Notice of Contention filed by Helicopter Resources. His Honour concluded that, in light of his findings, it was not necessary to deal with the Notice of Contention. His Honour noted, however, that some of the contentions accorded with findings that he had made in his reasons.
87․The appeal judge dismissed the prosecution’s appeal in relation to Helicopter Resources and allowed the Commonwealth’s appeal against its convictions.
88․Following the determination of the appeals, the appeal judge made costs orders by consent in favour of the Commonwealth and Helicopter Resources: May v Helicopter Resources; Commonwealth of Australia v May (No 2) [2021] ACTSC 123.
Grounds of appeal: May v Commonwealth
89․The prosecution appealed against the appeal judge’s acquittal of the Commonwealth. The grounds of appeal are as follows:
Ground 1: As to the first measure particularised in the information, the appeal judge erred in finding that the magistrate erred in holding that this measure was reasonably practicable, including that the appeal judge erred in finding that:
a. the existence of “minimal crevassing” needed to be properly defined;
b. the magistrate determined the first measure on the “somewhat speculative basis” that “at some time or another, satellite imagery may be useful”;
c. proof of reasonable practicability required evidence that a qualified person was actually retained by the Australian Antarctic Division.
Ground 2: The appeal judge erred in finding that the particulars were cast so that the assessment of reasonable practicability applied to every helicopter flight and not just helicopter flights to fuel cache sites on the Western Ice Shelf.
Ground 3: The appeal judge erred in not finding that there was an actual risk or hazard that existed in relation to the flights of 8 and 28 December 2015.
168․Therefore ground 1(c) in the Notice of Appeal is not made out.
Notice of Contention ground 1 – measure 6
169․A significant component of the package of measures is the requirement in measure 6 that measures 1 to 5 be repeated if more than two weeks had expired or if there had been a “significant weather event” since the last assessment.
170․The appeal judge’s finding (discussed below) addressed the latter alternative, finding that repeating the measures after a significant weather event was not reasonably practicable. Ground 1 in the Commonwealth’s Notice of Contention dealt with the former alternative, asserting that the appeal judge should have explicitly found that measure 6 was not reasonably practicable because it had not been proved that the 14-day reassessment time was reasonably practicable.
The decision of the magistrate
171․The decision of the magistrate recognised that repeating the measures would impose upon the limited resources available at Davis Station: May (No 2) at [155]. He made it clear that the measures did not require the steps to be repeated every 14 days, but only when the site was to be used. He said (at [156]) that it “would have been open to the AAD to adjust resources and work sequencing to minimise the number of trips necessary in order to service Project King”.
172․The reasoning of the magistrate did not address the rationale for the 14-day period.
The decision of the appeal judge
173․As the Commonwealth submitted, the finding for which it now contends was impliedly made by the appeal judge. The language used by the appeal judge indicated that there was “substance” in the submission that, absent hindsight, 40 days would have been an appropriate interval after which the measures would require repetition. However, his Honour held that the measure was not reasonably practicable because it required the repetition of the measures after a “significant weather event”. Such events were “commonplace and could in fact occur more than once a day”. It was that requirement, including the necessity to reconsider satellite material, that rendered the repetition requirement to be not reasonably practicable.
Conclusion – measure 6
174․It is not clear why measure 6 contains a 14-day period. It is possible that this period has been drawn from the evidence in paragraph 6.37 of Dr Colgan’s report that, on the various assumptions that he made, the incident crevasse had opened from a non‑dangerous 20 cm to a dangerous 60 cm over a period of 13 days.
175․There are two points to be made about the selection of the 14-day period in measure 6.
176․The first point is that the report of Dr Colgan is quite clear that, in the absence of hindsight arising from what was known about the specific crevasse involved in the accident, “an a priori assumption of a characteristic local opening rate of 1 cm per day would have been reasonable”. As a result, “heli-probing at the incident site would therefore have been valid for 40 days”. Given that, in the absence of hindsight, it would be reasonable to approach the assessment of the fuel cache site on the basis of a crevasse opening rate of 1 cm per day, it has not been established beyond reasonable doubt that the significantly more onerous requirement of repeating the package of measures when as little as 14 days had passed was reasonably practicable.
177․The second point is that the 14-day requirement was not supported by the actual practice adopted by the AAD following the accident. As pointed out earlier, one of the significant planks in the prosecution case asserting that the measures proposed were reasonably practicable ones were the measures adopted on 22 January 2016 by the AAD in response to the accident and subsequently integrated into its August 2016 operations manual. Essentially, the prosecution argued that if the measures were taken after the accident then they could have been taken before.
178․The measures subsequently adopted were similar in some respects to the package of measures proposed by the prosecution. It is worth noting that they were articulated in a manner which would make them more readily able to be implemented. For present purposes, what is significant is that, like the package of measures, they contained a requirement for repetition of the assessment measures if a particular period of time had passed or there had been “a notable weather event at the site (blizzard, extremely high winds, etc)”. The significant difference between the regime put into place and the package of measures identified by the prosecution was that the assessment process was only required after a two-month rather than two-week period. The two-month period was subsequently reduced to six weeks and it was that figure which was included in the operations manual dated August 2016.
179․The third point is that there was specific evidence of the difficulties that would be caused by the adoption of a two-week clearance time. The AAD Operations Coordinator at Davis Station, Sharon Labudda, gave evidence that the six-week clearance time subsequently adopted made flying operations more complicated. She was asked what the effect would have been of adopting a two‑week clearance time. Her answer was:
My opinion is I think that would make it quite difficult to achieve any tasks because due to the - the weather is a big part of the Antarctic and sometimes it can be quite difficult to actually, you know, get a good enough weather window to go every two weeks, and I've experienced it that even the Sorsdal Glacier, which is right next-door to Davis Station, we weren't able to get there in the right weather conditions for, you know, more than two weeks. We hardly got there for the season to carry out heli crevasse probing, and it's a closer site than sites that are a lot further away.
180․That answer was given without specific reference to the further qualification proposed by the prosecution that the site clearance process be repeated if there was a “significant weather event”. Later in her cross-examination by counsel for Helicopter Resources, she said as follows:
And can we take it from an answer you gave to Ms Currie moments ago that if you were required on a fortnightly basis to conduct heli crevasse probing at deep field cache sites - that's every two weeks fortnight in, fortnight out - that would play havoc with your ability to properly plan and operate the Davis Station?---It would make it very difficult, yes.
Very difficult to the point of almost impossible?---Yes, I - that would be my opinion, yes.
And what if I suggested to you, madam, that every time a weather event occurred - that is not just on a fortnightly basis, but if within a fortnight there was four or five or six weather events, that after each of those there was a need to conduct such Heli Crevasse Probing, tell his Honour what that would mean for your ability to properly discharge your functions?‑‑‑It would be very difficult as well. Like, if all the fuel cache sites or science sites - they're all in different locations and to be able to actually monitor those locations - you don't have people on the ground. I personally don't know how the forecasters would be able to say exactly what happens, they've only got limited resources. So at times I think it would be very difficult to even know what had occurred at a site if there had been a significant weather event. We might not be aware of it and there could have been one. And, yes, because Antarctica can change quite dramatically from just one location to another, so that would be very difficult.
181․The issue was raised again in re-examination by counsel for the prosecution and, after making reference to the difficulties created by adverse weather, she said:
So I personally don’t have an answer of how to be able to achieve, say, probing every two weeks, or whatever it is. I personally don’t have an answer how to do that.
182․Bill De Bruyn, the Station Leader at Davis Station, was asked in cross‑examination by counsel for the Commonwealth and counsel for Helicopter Resources about the effect of imposing a two-week clearance period:
MR HALLOWES: Finally I want to ask you, Mr De Bruyn, a question about various or a particular measurement [sic] one might put in place in relation to visiting deep field fuel sites, and perhaps if I preface it in this way, if every time a deep field fuel cache site is visited whether to take fuel drums to that site or to refuel there whilst taking drums to a further site, or refuelling while taking scientists to a site, if every time a fuel cache site was visited for any of those reasons, the site had to have been within the previous two weeks the subject of a low light reconnaissance and to have been heli-probed, how would you say that would affect operations in the Antarctic?---If it was to be done, as you said, on every single occasion it can't be because we'd have to physically put two FTOs, because you must have two FTOs to probe a site, not one, for safety reasons, and requirements, which means that the helicopter would have to go there with the FTOs, return and then pick up the next load. It would make operations extremely difficult.
…
MR O'MAHONEY: Mr De Bruyn, when you say it would make operations extremely difficult do you mean by that in effect there just would be no time to get any work done, meaningful work on the station?---Not with the staffing levels that I had at that time if we apply that, no.
What would in effect occur, you correct me if I'm wrong, sir, would be that the station would turn into almost a full time crevassing operation and there would be no meaningful scientific or other work being done?---It would have a serious impact on the aviation, yes.
183․The Aviation Manager of the AAD, Mr Aaron Read, gave evidence that applying the six‑week maximum clearance, in the 2016/2017 season they were unable to reach the Gaussberg location by helicopter as was intended in the project. That was because of the need for additional trips in the time allowed by the weather. He was asked to consider the impact of limiting the clearance period to two weeks, and said:
Now, having regard to that system with a six-week maximum clearance time, what could you say as to what the impact on the aviation program would be if the maximum clearance time for a site was two weeks and, I might add to that, if the maximum clearance time was two weeks and you also had to do heli-crevasse probing every time to clear a site?---You'd need longer range helicopters. So using the current helicopters we have, we wouldn't be able to go very far from the station in a season.
So it would limit the capacity of the AAD to undertake activities very far from the station at all?---A hundred per cent correct.
184․Arising out of that last answer, he was asked in re-examination by counsel for the prosecution:
In relation to re-inspection of fuel sites each two weeks and whether that could be done, you said you would need longer range helicopters. Do you recall that?---Yes.
Are they available in the market?---They are.
185․No other detail relating to the possibility of the AAD having contracted for different helicopters was adduced from him.
186․David Lomas, Chief Pilot for Helicopter Resources, was asked about the consequences of reducing the site clearance time to two weeks in accordance with a regime equivalent to the package of measures. He gave evidence that it would be “extremely challenging” to deliver services to the AAD.
187․Later in his evidence, he was asked about the range of different sites to which helicopters were being flown in the 2015/2016 season. He said there were “20 plus sites, possibly more”. He described the difficulties involved in those other sites and described a scenario involving a clearance period of two weeks subject to weather events as being “unworkable”. The following exchange appears in the transcript:
But if you wouldn't mind answering just in terms of what a process like that would mean for the ability of Helicopter Resources to operate in Antarctica?---It would make our ability to deliver the service to the customer - in this case, the AAD - extremely challenging. The requirement to redo the steps every two weeks would mean that we would basically spend all our time doing those flights and not actually conducting the operational taskings, that is, flying the scientists to the places that they actually want to get to.
When you say extremely challenging, do you mean nigh on impossible?---Correct, yes.
To your mind it would be practically unworkable to be undertaking those tasks in that system at the same time as providing the services that Heli Res needs to provide to the AAD; correct?---Correct, yes.
And, sir, you said in answer to that question a moment ago if you had to do this every two weeks it would in effect play havoc with the ability to provide the services that you're tasked with, or Heli Res is tasked with providing, but what about if it's even more regular than that, if it's every time there's an intervening weather event?---It would - all you would be doing is doing these clearance flights, going back and redoing those steps. There would be no time really available to actually undertake the tasks.
188․The probative value of this evidence is affected by the fact that, at least in relation to some of the questions asked of the witnesses, the questions were unclear as to whether they were premised on a requirement that reassessment take place every two weeks as distinct from a requirement that the sites be reassessed if they were to be visited again after two weeks had passed. However, to the extent to which there was ambiguity in the questions or the basis upon which they were answered, no evidence was elicited from these witnesses in re-examination as to their opinion about practicability if the requirement for repetition was as contended for in the prosecution’s measure 6. That meant that the court was left with very clearly expressed concerns about the practicability of more frequent requirements for reassessment and no evidence to remove any doubt about the practicability of measure 6 that arose from that evidence.
189․Further, the questions and answers were not specifically limited to the practicability of helicopter visits to the Project King fuel cache sites on the West Ice Shelf. The prosecution contended that it was only these sites to which it asserted that the package of measures should have been applied, and hence reasonable practicability needed to be assessed only by reference to the burden of implementing those measures for those sites and not by reference to the range of other helicopter operations to potentially crevassed sites. While that had the forensic advantage of confining questions of practicability in a way that made it easier for the prosecution to succeed, it was not appropriate to confine the inquiry as to practicability in this way.
190․An assessment of reasonable practicability must have regard to the need to apply equivalent measures in other comparable circumstances: compare Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [122]-[125]. It would not be reasonable to conclude that a range of strict measures should have been applied to fuel cache sites on the West Ice Shelf if equivalent measures were not to be applied to other sites where similar risks arose. Such measures would only be reasonably practicable if they could be applied in other circumstances which gave rise to equivalent hazards or risks. As a consequence, the fact that the questions and answers extended beyond fuel cache sites on the West Ice Shelf did not detract from the probative value of the evidence.
191․While the AAD’s subsequent adoption of a requirement for repetition of fuel cache site assessments might be seen as supporting the reasonable practicability of a measure requiring repetition, the actual measure adopted did not support the reasonable practicability of the frequency contended for by the prosecution.
192․As pointed out above, the appeal judge found that there was “substance” in the submission made by the Commonwealth concerning the two-week period, but ultimately rejected the reasonable practicability of the measure because of the potential frequency of “significant weather events”. We would not have rejected the reasonable practicability of the measure on this basis because it assumes that the meaning of “significant weather event” is sufficiently defined so as to permit the reasonable practicability of the measure to be assessed. We do not consider that to be the case. Undoubtedly, there will be some “weather events” which are clearly “significant” and which would indicate the need to reassess the snow cover at a fuel cache site. But where the measure is cast in nondiscretionary terms which do not call for an exercise of discretionary judgment, the boundary between a weather event that is significant and not significant becomes difficult to define. While it would undoubtedly be possible to define a measure by reference to a discretionary judgment about the likely effects of known weather conditions upon a fuel cache site, the proposed measure is a mandatory one defined by reference to an uncertain concept. Because of that, it lacks reasonable practicability. The subsequently adopted measure made reference to “a notable weather event at the site (blizzard, extremely high winds, etc)” and by providing those examples, gave the concept practical content.
193․In our view, it is sufficient to determine the matter on the basis of a rejection of the reasonable practicability of the requirement for repetition of the package of measures after a 14-day period. The 14-day period was only identified with the benefit of hindsight in light of what was known about the actual crevasse involved in the accident. It was not demonstrated to be reasonable without that knowledge. While any increase in the frequency of the package of measures would only produce a corresponding increase in the burden of those measures and was not shown to be impossible, the court was asked to enforce a standard of conduct in circumstances where the evidence before it involved no direct support for the requirement of that standard, the standard had not been adopted in practice by the AAD and there was no evidence of a comparable practice by any other government or entity in Antarctica or elsewhere that would support the reasonableness of that standard. Whilst it would clearly be open to a court to convict on the basis of a standard defined by the court’s own normative judgment, that is not a course that we would adopt in a case like this, which involves matters of judgment and degree in an unusual operating environment, very remote from matters of which the court has daily experience.
Disposition of the appeal relating to the Commonwealth
194․Given that the success of the prosecution of the Commonwealth was dependent upon the prosecution establishing the reasonable practicability of all six of the measures within the package of measures, the result of the determination of ground 1 of the Notice of Appeal and ground 1 of the Notice of Contention is that there are at least two reasons why the prosecution could not succeed. Having regard to the manner in which the magistrate gave his reasons and the manner in which the appeal judge dealt with the various grounds of appeal and contention that were before his Honour, the determination that there were at least two reasons why the prosecution of the Commonwealth failed means that it is not necessary to go on and determine the multitude of other grounds of appeal and contention.
Disposition of the appeal relating to Helicopter Resources
195․Ground 6 in Helicopter Resources’ Notice of Contention asserted that the appeal judge ought to have found that he had no jurisdiction to hear the prosecution appeal. Helicopter Resources submitted that the review appeal provisions in Pt 3.10.3 of the Magistrates Court Act were not picked up by s 68(2) of the Judiciary Act 1903 (Cth), and hence there was no capacity for the prosecution to appeal from the magistrate’s acquittal of Helicopter Resources.
196․Having regard to the fact that it was common ground that if the prosecution of the Commonwealth was not successful, then the prosecution of Helicopter Resources could not succeed: see [8], and [69] above, the appeal in relation to Helicopter Resources must be dismissed.
197․It can be accepted as a general proposition that it is the first duty of a court to be satisfied of its jurisdiction. However, there are cases where it is open to a court to dismiss a case without determining the issue of jurisdiction: see the discussion in Babet v Electoral Commissioner [2023] FCAFC 164 at [55]-[74]. In the present case, where:
(a)the outcome of the appeal in relation to the Commonwealth determines the outcome of the appeal in relation to Helicopter Resources;
(b)the primary judge did not address the jurisdictional point: AJ at [12];
(c)the applicability of s 68(2) to an appeal against an acquittal on a summary charge has not been previously determined, the closest authority being Australian Securities and Investments Commission v Vis [2000] SASC 258; 77 SASR 490; and
(d)the answer to the question would not affect the order to be made,
we do not consider it essential that we determine that ground of Helicopter Resource’s appeal.
198․It is also not necessary to address in the appeal in the Helicopter Resources matter the special nature of a review appeal under s 219B of the Magistrates Court Act, whether the prosecution's grounds of appeal before the appeal judge were correctly formulated, and whether the grounds as argued before the appeal judge were properly within the scope of a review appeal. The Court of Appeal alluded to these limitations in May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295 at [107]-[109] without deciding the issues. Because the appeal in relation to Helicopter Resources must be dismissed, the issues concerning the nature of a review appeal to the Supreme Court do not now arise for consideration.
199․Having regard to the fact that the appeal against the acquittal of the Commonwealth is to be dismissed, the appeal against the acquittal of Helicopter Resources must also be dismissed.
Orders
200․In each case the prosecution’s appeal will be dismissed.
201․The orders of the Court in proceedings ACTCA 34 of 2021, the appeal relating to Helicopter Resources, are:
1.The Appeal is dismissed.
2.Unless an application in proceedings seeking a different order is filed within 14 days, the appellant is to pay the respondent’s costs of the appeal.
202․The orders of the Court in proceedings ACTCA 35 of 2021, the appeal relating to the Commonwealth, are:
1.The Appeal is dismissed.
2.Unless an application in proceedings seeking a different order is filed within 14 days, the appellant is to pay the respondent’s costs of the appeal.
| I certify that the preceding two hundred and two [202] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 1 March 2024 |
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