McKay Investments Pty Ltd v Kent
[2011] TASSC 11
•7 March 2011
[2011] TASSC 11
COURT: SUPREME COURT OF TASMANIA
CITATION: McKay Investments Pty Ltd v Kent [2011] TASSC 11
PARTIES: McKAY INVESTMENTS PTY LTD
v
KENT, Robert Bruce
FILE NO/S: 352/2010
DELIVERED ON: 7 March 2011
DELIVERED AT: Hobart
HEARING DATE: 23 February 2011
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Variance between charge and evidence – In general – Particulars delivered by letter – Variance as to how workplace accident occurred.
Wickham v Cole [1957] Tas SR 111; Canning v Taylor [1967] Tas SR 42, referred to.
Aust Dig Magistrates [110]
REPRESENTATION:
Counsel:
Applicant: D J Gunson SC
Respondent: S Nicholson
Solicitors:
Applicant: Gunson Williams
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 11
Number of paragraphs: 43
Serial No 11/2011
File No 352/2010
McKAY INVESTMENTS PTY LTD v ROBERT BURCE KENT
REASONS FOR JUDGMENT BLOW J
7 March 2011
The applicant, McKay Investments Pty Ltd, operates a sawmill at Bridgewater. At that sawmill on 12 February 2008 one of that company's employees, a man named Jason Barwick, had his left hand cut off by the rotating saw blades of a machine called an edger. The respondent, who is an officer of Workplace Standards Tasmania, prosecuted the applicant company. The company was charged with failing to ensure, so far as was reasonably practicable, that Mr Barwick was, while at work, safe from injury and risks to health, contrary to the Workplace Health and Safety Act 1995, s9(1). There was a long defended hearing before a magistrate, Mr M Daly. He found the charge proved. This is a motion for the review of that determination.
The machine in question used to get blocked by sawdust several times a day. It was necessary for employees to unblock it. There was a black pipe that carried away sawdust that was mechanically sucked out of the machine. Mr Barwick opened a cover on the black extraction pipe, and used a piece of metal pipe to clear it out, but the machine was still blocked with sawdust. He switched off the machine at a control panel, walked around it, stepped onto a platform, and began to manoeuvre himself into a position where he could insert the piece of pipe into the machine for the purpose of clearing the blockage. According to his evidence, the metal pipe got caught, and it was sucked into the machine with his hand still on it. There were electrically operated saw blades in that part of the machine. Apparently they were still in motion. He lost his left hand as a result. There was no suggestion that anyone had switched the machine on again. A warning tag was in place, indicating that it was not to be turned on.
After the accident, there was an investigation by officers of Workplace Standards Tasmania. As a result of that investigation, the applicant company was required to install a safety guard barring access to the part of the machine where Mr Barwick was injured. The safety barrier is connected to a timing device. In order to pass through the barrier, one must turn off the machine and wait. There was evidence that it took up to 55 seconds for the saw blades to stop turning after the machine was switched off. The barrier cannot be opened until a fixed period of time after the turning off of the machine.
The relevant provisions of s9(1), under which the applicant was charged, read as follows:
"(1) An employer must, in respect of each employee employed by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular, must —
(a)provide and maintain so far as is reasonably practicable —
…
(iii) plant and substances in a safe condition; and
…
(c)provide any information, instruction, training and supervision reasonably necessary to ensure that each employee is safe from injury and risks to health."
There is a single obligation created by s9(1) to "ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health": Kent v Gunns Ltd [2009] TASSC 30. However the applicant was charged in relation to this incident on two counts, count 1 alleging a breach of s9(1)(a)(iii), and count 2 alleging a breach of s9(1)(c). After the close of the prosecution case, at the request of counsel for both parties, the learned magistrate acknowledged that he was obliged to deal with the two counts as if they were a single count. He subsequently found the charge proved on the basis of s9(1)(a)(iii), ie on the basis of failing to provide plant in a safe condition. The applicant is seeking the review of that determination, on four grounds.
Ground 2 – Proof beyond reasonable doubt
This ground reads as follows:
"The learned Magistrate failed to find that the essential elements of the complaint alleging a breach of s9(1)(a)(iii) of the Workplace Health and Safety Act 1995 were proved beyond reasonable doubt."
Since this was a prosecution for an offence, the learned magistrate was not permitted to find the charge proved unless he was satisfied of guilt beyond reasonable doubt. The applicant contends that the learned magistrate found the charge proved, not on the basis of proof beyond reasonable doubt, but on the basis that he was satisfied of the applicant's guilt on the balance of probabilities.
The learned magistrate published written reasons for finding the charge proved. Except when quoting from a decision of Porter J, he did not use the words "beyond reasonable doubt" anywhere in those reasons, but he did not use the expression "balance of probabilities" either.
In the proceedings before the learned magistrate, it was contended that the applicant had contravened s9(1) by failing to provide and maintain, so far as was reasonably practicable, plant that was in a safe condition, in that it had failed to enclose the edger with a suitable guard, and had failed to carry out any, or any adequate, hazard and risk identification and assessment process. The learned magistrate was required to determine whether he was satisfied beyond reasonable doubt that those were reasonably practicable steps which the applicant had not taken, and which s9(1) had required it to take in order to discharge its duty to provide and maintain, so far as was reasonably practicable, plant that was in a safe condition. The applicant's case was that each of those steps went beyond what was reasonably practicable. As to each of the two suggested steps, there was evidence weighing for and against a conclusion that it was within the bounds of reasonable practicability.
After reviewing the relevant evidence, the learned magistrate concluded his reasons with the following:
"[28]My view is that a clear-eyed assessment of the risks associated with unblocking that machine should have been conducted. No such assessment was done. Watching the unblocking procedure as it was described to me should have revealed the risk and that a response was required in addition to the shut-down procedure. It is obvious to my mind that because employees could access the blades as described, the edger was unsafe in that regard. Employees needed more safety measures than the shut-down procedure.
[29]Balancing all the matters referred to, I find that the charge is proved in that the defendant failed to enclose the saw edger machine with a suitable guard to prevent access to its turning blades."
The applicant contends that the words, "Balancing all the matters referred to" at the beginning of the final paragraph indicate that the learned magistrate adopted the wrong standard of proof. I disagree. This was a decision of a full-time professional magistrate. He was no doubt extremely familiar with the applicable standard of proof. Immediately before the two paragraphs quoted above, he had quoted a passage from the judgment of Porter J in Kent v Gunns Ltd (above), that ended with the words, "However, in all of the circumstances, I am not persuaded that the only conclusion reasonably open to the magistrate was that guilt had been established beyond reasonable doubt." That case also concerned a prosecution under s9(1) concerning a machine at a sawmill without a safety guard. There is no reason to think that the learned magistrate, having quoted a comment about reasonable doubt in par[27] of his reasons, lost sight of the fact that that was the required standard by the time he got to par[29]. The absence of a mantra-like recitation of the applicable standard of proof, and the reference to balancing, together do not compel an inference that the learned magistrate made the elementary error that has been asserted. This ground must fail.
Ground 4 – Particulars and amendment
Originally four defendants were charged on the relevant complaint, and there were two charges against each of them. No evidence was offered against the defendants other than the applicant, and the charges were dismissed as against them.
The complaint contained some particulars of the charges. The solicitors for the four defendants sent a formal request for further and better particulars to the Director of Public Prosecutions on 16 April 2009. The requested particulars were supplied in a letter dated 22 September 2009. On the first day of the hearing, defence counsel tendered those two documents as exhibits. One normally thinks of exhibits as documents or things that afford evidence in relation to a fact in issue, but there is authority that it is appropriate to tender as exhibits documents that establish that the case for a complainant has been defined by the provision of particulars: Goodbee v Samuels (1973) 5 SASR 236 at 239.
In his reasons, the learned magistrate quoted from the particulars in the complaint and from the further particulars that were supplied by letter, setting out the relevant particulars and further particulars as if he were quoting from a single document. Ground 4 asserts that he thereby erred in law. It reads as follows:
"The learned Magistrate erred in law in incorporating in to [sic] the complaint as part of the particulars of the alleged breach certain further and better particulars that had been supplied to the defendant by the prosecution prior to trial when the complaint was not amended at trial to incorporate those particulars."
It is true that the complaint was never amended to incorporate the particulars that were supplied by letter. However there is nothing in the learned magistrate's reasons to warrant a conclusion that he made any mistake about that. In pars[2] and [3] of his reasons, he said the following:
"The particulars of the charge are set out in complaint 90034A of 2009 together with the further and better particulars provided by the prosecutor dated 22 September 2009 (Ex D1), in response to the defendant's request dated 16 April 2009 (Ex D2).
[3] The particulars allege certain breaches of s9(1)(a)(iii)1 as follows:
…".
He then proceeded to set out the relevant particulars, some from the complaint and some from the letter, in such a way that one could not tell what had come from the complaint and what had come from the letter. The footnote referred to in the last line I have quoted read, "I have paraphrased to a minor extent."
In my view it is clear that the learned magistrate wanted to set out the relevant particulars from the complaint and the letter in a readable and coherent way, and that he sought to do this by taking the relevant particulars from the letter and inserting them at appropriate places in the text of the particulars from the complaint. He did not assert that the particulars supplied in the letter had been incorporated into the complaint in any formal way. He made it clear that he was providing a summary of particulars from two different sources, with some paraphrasing. There was nothing impermissible about the way in which he summarised the particulars. There was no need for him to say which particulars came from the complaint and which came from the letter. The way in which he set out the particulars from the two sources did not involve any error of law, and cannot have made any difference to the outcome of the case. This ground must fail.
Ground 3 – Errors of fact
This ground reads as follows:
"The learned Magistrate erred in fact and in law in finding the complaint alleging breach of s9(1)(a)(iii) of the Workplace Health and Safety Act 1995 proved."
In his submissions to me, counsel for the applicant did not assert that the learned magistrate had made any error of law other than those asserted in the other grounds of review. In addressing this ground, I will therefore deal only with his submissions as to errors concerning the facts. The applicant's contentions as to specific errors should have been set out in the notice to review, but counsel for the respondent told me that he did not wish to take any point as to the wording of the ground of appeal. I will therefore deal with this ground as if the errors asserted during counsel's submissions were formally set out in the notice to review.
At pars[8] and [9] of his reasons, the learned magistrate made findings as to what happened on the day in question, as follows:
"[8]On the day in question, I find that the machine was blocked and that Mr Barwick grabbed a piece of pipe to unblock it. I find that Mr Barwick was intending to – and commenced to – use the pipe or pole in some way to move the sawdust so that it could be carried away by the extraction system. He first checked the blocked outlet pipe and cleared that out. He then went back and checked the machine. It was still blocked. He went and turned it off at the control panel. He walked back around to the machine. He grabbed the pipe in his left hand. He hopped up onto the machine using the platform shown in Ex P1, photo 6. Mr Barwick said that he looked whether the saw blades had stopped and at that time, the pipe got caught in the saw blade or blades, and his left hand was cut off.
[9]At the time Mr Barwick was climbing up onto the machine, it is probable that Mr Barwick held the pipe in his left hand in such a way that through his inattention, misjudgement, haste, carelessness or inadvertence, it got caught in the moving cutting blade or blades of the machine. Once the pipe got caught, the left hand which then held the pipe was drawn in by the force created by the saw edger blade's rotational speed."
At the end of par[8], the learned magistrate made a mistake as to what Mr Barwick said in evidence. He did not say that he looked to see whether the saw blades had stopped, but only that he intended to do so. A little later, his evidence-in-chief proceeded as follows:
"When in your evidence you said that you climbed up on the machine, on the step that you just pointed out, had you started to unblock it then? … No.
And – well was it – were you – or were you simply just climbing up on the machine, that's - … Yes.
Okay. Were you aware of whether the saws had stopped? … No.
…
And what happened to your hand when the pipe – or when you were climbing up onto the edger? … What happened to me hand? Oh it cut it off."
Under cross-examination, he said that he did not use the piece of pipe to reach down into the edger to shift the blockage. He also said that he was right-handed. Later in his cross-examination, he said he did not know that the blades were still rotating.
Counsel for the applicant suggested that the learned magistrate made another error in saying that Mr Barwick had said that "the pipe got caught in the saw blade or blades". During his evidence-in-chief he began to say that the pipe got caught in something, but was interrupted by an objection before he said what the pipe had got caught in. However, during his cross-examination, he said at one point that the pipe got caught "in the saws".
During his cross-examination Mr Barwick gave evidence about an incident at the same sawmill on 16 April 2007 when he was injured while operating an electric docking saw – not the edger. An incident report relating to that injury, signed by Mr Barwick, was tendered as an exhibit. It revealed that he had pushed an emergency stop button, not waited for the saw to stop running, reached in to remove a slither, and suffered a cut to his finger. The evidence established that that incident occurred when the sawmill was being operated by a different company, Clennett Industries Pty Ltd, and that the applicant company had purchased the mill in September 2007 as a going concern. Mr Barwick agreed during his cross-examination that, following the injury to his finger, his then manager had warned him on a number of occasions to be careful about approaching moving saw blades. The learned magistrate referred to the 2007 injury in his reasons and, at a later point, when discussing what a reasonable employer ought to have foreseen, said the following:
"In my view the defendant must be taken to know about the previous instance where Mr Barwick was warned about putting his hands near moving blades."
There was no evidence that anything was said to anyone connected with the management of the applicant company about the 2007 incident or consequent warnings to Mr Barwick. The learned magistrate did not suggest any basis for inferring that the applicant must have known about that incident and the warnings. Whilst one could not rule out the possibility that the management of the applicant company had been made aware of the events of 2007, the possibility that that was not the case cannot be ruled out. In my view, on the evidence before the learned magistrate about that incident and about the business changing hands, it was not reasonably open to him to infer that the applicant company knew of the previous incident and warnings.
This ground must succeed on the basis that the learned magistrate erred in drawing that inference, and in mistaking what Mr Barwick said about whether he looked to see if the saw blades had stopped moving.
Ground 1 – Unsafe and unsatisfactory
This ground reads as follows:
"The decision by the learned Magistrate that the complaint alleging a breach of s9(1)(a)(iii) of the Workplace Health and Safety Act was proved is unsafe and unsatisfactory because the learned Magistrate was in error when he found that he was satisfied that the charge was proved when he ought to have entertained a reasonable doubt."
The Full Court's decision in Kelly v O'Sullivan (1995) 4 Tas R 446 is often relied on as authority for the proposition that a ground that a decision is unsafe and unsatisfactory is a valid ground for review under the Justices Act 1959, s107. However, it is important to note that the test to be applied in relation to such a ground upon the review of a magistrate's decision is different from the test to be applied by the Court of Criminal Appeal when an appellant has been convicted after a trial by jury. In the latter situation, the appellate court has to consider whether the jury should have entertained a reasonable doubt, and whether there has therefore been a miscarriage of justice: M v R (1994) 181 CLR 487. But, upon a motion for the review of a magistrate's decision, "the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did": Phillips v Arnold [2009] TASSC 43, per Crawford CJ, with whom the other members of the Full Court agreed, at par[46]; Hajdu v Brown [2007] HCA Trans 245; Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351. Unlike an appeal to the Court of Criminal Appeal, this is not an appeal by way of rehearing, and I do not have the power to make my own findings of fact: Richardson v Shipp [1970] Tas SR 105 at 117; Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at par[7].
Counsel for the applicant made submissions to the effect that it was not open to the learned magistrate to find the charge proved because the evidence as to how Mr Barwick was injured was inconsistent with the further particulars that were provided by letter. In the complaint, it was alleged in relation to each count that "a pipe carried by Mr Barwick came into contact with the blades of a TAS TECH 3 Saw Edger". Particulars were requested as to "the manner in which it is alleged that the pipe carried by Mr Barwick came into contact with the blades of the saw edger". That was answered as follows:
"It is alleged that Jason Barwick was attempting to clear a blockage from the saw edger. In doing so he used a piece of pipe to reach down into the machine to shift the blockage. At some point, in doing so, the pipe caught the unguarded saw blade and dragged the pipe and Mr Barwick's hand onto the blade."
As I have said, there was evidence that Mr Barwick had used the piece of pipe to try to clear sawdust from the black extraction pipe. However that manoeuvre could not be described as reaching down into the machine. Mr Barwick's uncontradicted and unchallenged evidence was that he intended to poke the piece of pipe down into the machine to shift the sawdust blockage, and that he was manoeuvring himself and the piece of pipe into position in order to be able to do that when the injury occurred. There was no evidence that he reached the stage of using the piece of pipe to reach down into the machine to shift the blockage. Counsel for the applicant argued that, because there was no evidence that Mr Barwick was injured in the manner alleged in the letter providing particulars, it was not open to the learned magistrate to find the charge proved.
I doubt that the allegation contained in the letter could properly be regarded as a particular of the charge. The occurrence of an injury is not an ingredient of the offence. Evidence of what happened on a particular occasion might be relied upon as the basis for proving a breach of the duty imposed by s9(1): R v Australian Char Pty Ltd [1999] 3 VR 834 at par[55]. It can therefore be appropriate for a defendant's solicitor to request a prosecutor to provide information as to what facts he or she proposes to prove in relation to an incident when injury occurred. However the essence of the offence is a breach of a duty that requires the taking of precautions so far as is reasonably practicable. Strictly speaking, it was necessary for the prosecutor to prove a relationship of employer and employee, the presence of the employee at work, the presence of plant that was in some respect unsafe, that the lack of safety resulted from a failure to take some reasonably practicable precaution, and a consequent danger of injury. Information as to how a particular injury occurred might tell a defendant how the complainant proposes to prove his or her case, but it does not amount to a particular of any ingredient of the charge.
When a prosecutor delivers particulars confining his or her case to a particular person, transaction or episode, such particulars are binding on the prosecutor: Johnson v Miller (1937) 59 CLR 467 at 480 (Latham CJ); Giles v Samuels (1972) 3 SASR 307 at 310 (Bray CJ). However the "particulars" of the manner in which the pipe carried by Mr Barwick came into contact with the saw blades were not particulars of such a nature. There is no universal rule that an inconsistency between particulars and evidence must result in a charge being dismissed. In this case, there was no suggestion that the inconsistency between the allegation in the letter and Mr Barwick's evidence resulted in any prejudice to the applicant company in its defence of the charge. In the absence of any such prejudice, I think the inconsistency should be regarded as immaterial. The applicant was given fair notice of the facts that the prosecutor proposed to prove as the basis of his case. There is no reason to think that the defence case would have been conducted any differently if it had been known that Mr Barwick's evidence would be a little different from the version of events outlined in the particulars.
The Justices Act says nothing at all about particulars that are not incorporated in a complaint. However it does contain provisions that are relevant in a situation where there is an inconsistency between the particulars of a charge as set out in a complaint and the evidence given or adduced by the complainant. Section 31(1)(b) provides that an objection shall not be taken or allowed to a complaint in respect of a variance between it and the evidence in support thereof. Section 31(2)(b) provides that, notwithstanding s31(1), where the defendant appears to have been prejudiced by any such defect or variance, the complaint is to be dismissed, unless it is amended under s31(3) to cure the defect. By implication, if there is some inconsistency between the allegations particularised in a complaint and the evidence adduced by the complainant, but that inconsistency does not cause the defendant prejudice in the sense that the fairness of his or her trial is affected, then the inconsistency must be regarded as immaterial. In Canning v Taylor [1967] Tas SR 42, a defendant had been charged with committing an offence in Davey Street, but the evidence was that he had committed the offence in Antill Street and Fitzroy Place. The magistrate had refused to allow an amendment, and had dismissed the complaint. The Full Court held that the variance was not material, set aside the order of acquittal, and remitted the complaint for rehearing.
In Wickham v Cole [1957] Tas SR 111 at 114, Burbury CJ stated the relevant principle as follows:
"So long as it clearly appears from the complaint, as a matter of substance in ordinary language with what offence the defendant is charged and he is given proper particulars of the facts constituting the foundation of the charge the complaint will not be bad because of some minor omission or misstatement not capable of misleading a defendant as to the offence with which he is charged or otherwise prejudicing him in his defence."
If the "particulars" of the manner in which Mr Barwick's pipe came into contact with the saw blades had been incorporated in the complaint, the learned magistrate would have been obliged to treat the inconsistency between the allegation and the evidence as immaterial. There is no reason for that inconsistency to be given any greater significance as a result of the allegation being contained in a letter rather than the complaint. The inconsistency clearly did not make it improper for the learned magistrate to find the charge proved on the basis of facts slightly different from those alleged.
Counsel for the applicant also made submissions to the effect that it was not reasonably open to the learned magistrate to be satisfied beyond reasonable doubt that the failure to install a suitable guard or barrier amounted to a breach of the duty imposed by s9(1). That duty only requires an employer to ensure "so far as is reasonably practicable" that an employee is safe from injury. There was a body of evidence that weighed in favour of a conclusion that the machine was safe enough as it was, or at least that the contrary was not established beyond reasonable doubt. The evidence weighing in favour of an acquittal on that basis can be summarised as follows:
· The blades were recessed into the edger machine. There was evidence that the highest point of the blades was about 300 millimetres below the top of the machine. Therefore a worker's hand could come into contact with a moving blade only if it was inserted that far, or somehow pulled that far, into the machine.
· There was evidence that Mr Barwick knew that he should not attempt to clear sawdust blockages in the vicinity of the blades until he had turned the power off and then waited 55 seconds for the blades to stop turning.
· There was evidence that he would be able to tell when the blades had stopped turning not just by looking at them, but also by seeing whether a drive belt above the blades had stopped moving, and/or whether a fan in a motor above the blades had stopped rotating. Also, if sawdust was being blown into the air above the blades, that was an indication that they were still in motion. However a lack of sawdust in the air was not a reliable indication of them not being in motion.
· There was evidence that the edger and other machines built to the same design had been in use for about 30 years at several other Tasmanian sawmills, and at some on the mainland. There was evidence from two witnesses that they had seen several such machines in operation, and that none of them had any sort of safety guard to inhibit access to the recessed blades.
· After the investigation of Mr Barwick's accident by officers of Workplace Standards Tasmania, no action was taken to compel the operators of identical machines in Tasmania to install safety guards.
· The applicant's production manager, who was in charge of the day to day production activities at the sawmill, gave evidence that the edger had been installed there about three to four years before Mr Barwick's accident; that he had been working at the sawmill since some time prior to its installation; and that no concerns had been expressed by anyone as to its safety. He gave evidence that a safety audit had been undertaken when the machine was commissioned.
· There was evidence that the safety guard and timer switch installed after Mr Barwick's accident cost about $2,000 to $3,000.
· The nature of the safety guard was such that a determined individual would be able to get over or under it at any time.
In Kent v Gunns Ltd (above) at par[44], Porter J set out a number of sound propositions concerning the offence created by s9(1), as follows:
"· the primary element of the offence is the failure to ensure so far as is reasonably practicable that each employee is safe from injury and risks to health. The obligation created is not an absolute one.
·there is no general rule or test for measuring whether the obligation has been met.
·the onus is on the prosecution to establish such a failure.
·the determination of the element involves a value judgment.
·"reasonably practicable" means something narrower than physically possible or feasible.
·what is reasonably practicable is to be judged on the basis of what was known at the relevant time.
·what is reasonably practicable is a question of fact.
·to determine what is reasonably practicable, it is necessary to balance the likelihood of the risk occurring, against the cost, time and trouble necessary to avert that risk.
·whilst it may be expected that similar considerations to those which arise in the determination of a breach of the common law duty, may also arise when considering a breach of the section, common law requirements should not be imported as elements of the offence.
·forseeability of risk of injury is likely to be a subject for consideration when reaching a determination as to whether the element of ensuring safety so far as was reasonably practicable has been made out. However, such a consideration does not import common law requirements into s9(1) as an element of the offence.
The learned magistrate quite properly directed himself in accordance with those propositions. In considering whether the charge had been proved, he took into account the following matters:
· The nature, cost, low degree of difficulty, and effectiveness of the safety guard.
· The risk of inadvertent contact between moving blades and a stick being poked into the edger to remove a blockage.
· The risk of employees being inattentive to moving blades when clearing blockages.
· The risk of employees misjudging things when preparing to clear blockages.
· The frequency of blockages.
· The chances of "haste, carelessness, inadvertence, inattention and even unreasonable or disobedient conduct".
It was proper to take all those factors into account. In my view this was a case where the value judgment required by s9(1) could reasonably have resulted either in an acquittal or a finding of guilt. The factors weighing in favour of an acquittal were powerful. However one could reasonably conclude that, with sawdust blockages being cleared several times a day, every working day, year in and year out, the risks of misjudgement, haste, carelessness, inadvertence, inattention and so forth were such that, in all the circumstances, the only reasonably practicable course was for the employer to install some sort of safety guard like the one installed after Mr Barwick's accident. That is to say, I think it was open to the learned magistrate to be satisfied beyond reasonable doubt that, because it had not installed such a safety guard, the applicant company had not gone so far as was reasonably practicable to ensure that Mr Barwick was safe from injury, and thus had not discharged its duty under s9(1). Ground 1 must fail.
Conclusion
Most of the grounds of review have failed, but it has been demonstrated that the learned magistrate made errors as to the evidence before him in two respects. He thought Mr Barwick said in his evidence that he had looked to see if the saw blades had stopped moving, but Mr Barwick did not say that. More significantly, he erroneously inferred that the applicant company knew of Mr Barwick's previous injury, and of him having subsequently been warned about putting his hands near moving blades. If he had not made those errors, he might not have been satisfied beyond reasonable doubt that the applicant company breached its duty. It follows that the determination under review must be set aside.
Counsel for the applicant submitted that I should not remit the case for rehearing by another magistrate. He referred me to the comments of Zeeman J in Burston v Brooks A91/1996 at 8. As that case illustrates, there can be circumstances when it is unjust to order a rehearing. In that case, Zeeman J decided not to remit the matter because the prosecutor had failed to call material witnesses, and he considered it unjust to allow an opportunity for the presentation of a "much augmented case". However, in this case, the need to quash the learned magistrate's determination is not a consequence of any deficiency in the presentation of the prosecution case. There is no reason to think that the prosecution case will be significantly stronger or different if presented a second time. And, in my view, the prospects of a second magistrate finding the charge proved are not so slim that an order remitting the matter should be refused.
Counsel for the applicant also submitted that it would be unfair to remit the matter for rehearing because his client is likely to end up having to pay the costs of two long hearings. The Appeal Costs Fund Act 1968 applies only in relation to the costs of "appeals", including motions to review, and not in relation to the costs of proceedings at first instance in the Magistrates Court. However this was not a trivial case. It concerned the loss of a man's hand. Although a rehearing is likely to be costly, and although there is a substantial chance of acquittal, I think it is in the interests of justice to send the case back to the Magistrates Court. Because the learned magistrate found the complaint proved in relation to s9(1)(a)(iii) only, I think the appropriate course is for me to dismiss count 2, which was based on s9(1)(c), and to remit only count 1 for rehearing.
I therefore order that the motion to review be allowed, that the determination of the learned magistrate be set aside, that count 2 on the complaint be dismissed, and that count 1 be re-tried by another magistrate.
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