Midfield Meat International Pty Ltd v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0003

MIDFIELD MEAT INTERNATIONAL PTY LTD (ACN 065 864 904)	Applicant
v
THE KING	Respondent

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JUDGES:	WALKER and MACAULAY JJA, and KIDD AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 November 2022
DATE OF JUDGMENT:	11 May 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 106
JUDGMENT APPEALED FROM:	[2022] VCC 2034 (Judge O’Connell)

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CRIMINAL LAW – Appeal – Conviction – Applicant found guilty by jury of one count of failing to maintain a safe system of work contrary to s 21 of the Occupational Health and Safety Act 2004 (‘OHS Act’) – Applicant is a meat-processing company – Employee fatally injured by a bull whilst working alone in cattle yard – Deceased was highly-experienced stockman – Applicant’s conviction based on failure to maintain system of work that required two people present for work in cattle yard – Applicant’s general manager admitted another person should have been present with deceased in cattle yard – Whether trial judge should have excluded admission – Whether verdict of jury unreasonable or cannot be supported on the evidence – No error in admission of evidence – Verdict open to jury on the evidence – Leave to appeal conviction refused.

CRIMINAL LAW – Appeal – Sentence – Applicant fined $400,000 for single breach of OHS Act – Applicant previously convicted of other breaches under OHS Act – Whether trial judge misapplied principles from Dotmar EPP Pty Ltd v The Queen [2015] VSCA 241 and Director of Public Prosecutions v Frewstal Pty Ltd (2015) 47 VR 660 – Whether trial judge failed to afford applicant procedural fairness in relation to the quantum of the fine – Whether sentence manifestly excessive – No error on behalf of trial judge – Sentence not manifestly excessive – Leave to appeal sentence refused.

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Counsel
Applicant:		Dr D Neal SC with Mr ST Russell and Mr MD Stanton
Respondent:		Mr A Palmer KC with Mr JCJ McWilliams and Ms MJ Brown
Solicitors
Applicant:	FCW Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

WALKER JA
MACAULAY JA
KIDD AJA:

PART A:INTRODUCTION AND SUMMARY OF CONCLUSIONS

This appeal arises out of a tragic workplace accident in which an experienced stockman, Patrick Smith, was killed. Mr Smith was an employee of the applicant (‘Midfield’), which operates an abattoir facility in Warrnambool. As part of its operations, Midfield agists its own livestock at various farming properties. One such property, known as ‘Wandobah’, is effectively owned and managed by Craig and Jane Oliver. In December 2017, Midfield was agisting a mob of 107 steers (neutered bulls) at Wandobah. Amongst the steers was one stag, which is a bull that has not been properly castrated and retains a level of testosterone which renders it potentially dangerous.
Adjacent to a system of forcing yards, race, cattle crush and loading ramp, Wandobah had two main holding yards — one at the northern end and the other at the southern end. On Friday 15 December 2017, Mr Oliver herded the steers into two separate mobs of around 50 and placed one mob into the northern holding yard and the other into the southern holding yard. Mr Smith had contacted Mr Oliver a few days beforehand to say he wished to come and weigh the cattle, and Mr Oliver told Mr Smith that he would be unable to assist him on that day as he would be shearing. Mr Smith said he would weigh the cattle on his own. With that understanding, on 15 December 2017, having mustered the steers into the yards, Mr Oliver left and went to another part of his property.
At 8:39 am that Friday, Mr Oliver received a call from Mr Smith informing him that he had arrived at the yards to weigh the cattle. Mr Oliver said that he would be there a little later, if he could, and Mr Smith indicated that he would get started. At 8:53 am Mr Oliver received a further call from Mr Smith, but when he answered there was no response. He assumed it was a ‘pocket dial’ and hung up. Mr Oliver arrived at the yards at about 9:20 am and noticed that all of the gates in the yards were open. Mr Oliver then saw Mr Smith lying on his back on the ground outside the entrance to the northern holding yard. He had abrasions to his head, face and legs. He was unconscious and unresponsive. Mr Oliver immediately rang 000 and commenced cardiopulmonary resuscitation. Paramedics arrived at about 9:50 am but were unable to revive Mr Smith and he was pronounced deceased. The cause of death was determined as chest injuries sustained when crushed by a bull.
Mr Smith was universally regarded as an experienced and skilled stockman who had worked with cattle in enclosed yards on countless occasions. There could be no question that Mr Smith was well qualified to perform the task he intended to carry out that day.
Midfield was charged on indictment with two charges of failing to provide and maintain a safe work system contrary to ss 21(1) and 21(2)(a) of the Occupational Health and Safety Act 2004 (the ‘OHS Act’). The charges, and the particulars to them, are set out in Annexure A to this judgment. Following a trial before a jury, Midfield was convicted of charge 2.[1]
[1]The trial judge had earlier accepted a no case submission in respect of particular 6(b) of charge 1 and removed this particular from the jury’s consideration. Charge 1 was therefore considered by the jury based on particular 6(a) and the jury could not reach a verdict on this charge and was discharged. Charge 1 was subsequently discontinued. See further detail at [33] and [35] below.
On 14 December 2021, Midfield was sentenced to a fine of $400,000.[2]
[2]DPP v Midfield Meat International Pty Ltd [2021] VCC 2034 (‘Reasons’).
Midfield now seeks leave to appeal against both conviction and sentence.
The application for leave to appeal against conviction
Midfield relied upon two proposed grounds of appeal[3] in relation to its application for leave to appeal against conviction:
(a)first, that the verdict of the jury was unreasonable or cannot be supported having regard to the evidence; and
(b)secondly, that the trial judge erred in allowing certain purported admissions contained in a written statement made by Dean McKenna, Midfield’s general manager, to be admitted into evidence.
[3]For convenience, proposed grounds are referred to as ‘grounds’ throughout this judgment.
For the reasons that follow, we would refuse leave to appeal against conviction. Neither of the grounds of appeal has any real prospect of success.
The application for leave to appeal against sentence
Midfield relied upon three grounds of appeal in relation to its application for leave to appeal against the sentence imposed:
(a)first, that the sentencing judge erred in failing to properly apply the principles from Dotmar EPP Pty Ltd v The Queen[4] and Director of Public Prosecutions v Frewstal Pty Ltd[5] when assessing the gravity of the offending as a serious breach of statutory duty, which constituted a significant departure from the standard required;
(b)secondly, that the sentencing judge erred when assessing current sentencing practices, and in failing to afford the applicant procedural fairness in relation to the quantum of the fine; and
(c)thirdly, that the sentence imposed was manifestly excessive.
[4][2015] VSCA 241 (‘Dotmar’).
[5](2015) 47 VR 660; [2015] VSCA 266 (‘Frewstal’).
For the reasons that follow, we would refuse leave to appeal against sentence. None of the grounds of appeal has any real prospect of success.
PART B:RELEVANT FACTUAL BACKGROUND
The livestock which Midfield processes at its Warrnambool abattoir includes cattle grown on farming properties around the district and further afield. It employs field officers who travel from farm to farm, speaking with the farmers, negotiating with them, buying cattle and organising their transport. Cattle purchased by Midfield might be grown out before they are processed at the plant. One of the ways Midfield grows out its cattle is by entering into agistment arrangements with private farmers. The farmers look after the welfare of the cattle and eventually the cattle are collected by Midfield and the farmer paid according to the weight the cattle put on while at the property.
Mr Smith had first been employed by Midfield in about 1990. In June 2017, Mr Smith purchased a group of steers that were six months’ old. Amongst the steers was a single stag. Mr Smith kept the steers and the stag at his own farm for a week before selling them to Midfield for agistment. He then delivered the 107 steers and the single stag to Mr Oliver’s farm, Wandobah.
Mr and Mrs Oliver have owned Wandobah for over 20 years. The applicant had agisted cattle, consisting of mostly bull calves, at Wandobah for about 16 years prior to 2017. Mr Smith had worked with Mr Oliver on the farm from around 2007. From this time, Mr Oliver had received 12,000 animals at Wandobah, 98 per cent of which were bulls around three months old. Mr Oliver would handle the daily animal welfare and production duties, including weighing, drenching and injecting cattle. He estimated he would have performed these tasks 36,000 times without issue.
Mr Smith’s role when working at Wandobah on behalf of the applicant was, typically, to draft, weigh and inspect Midfield’s cattle that were being agisted on the property. Mr Oliver would normally assist Mr Smith in undertaking these tasks. When Mr Oliver was unavailable, Mr Smith would usually attend Wandobah with another Midfield employee. Very occasionally, Mr Smith would complete these tasks without the assistance of anyone else. Mr Oliver estimated this would have occurred ‘under six times’ across the 10 years that Mr Smith visited Wandobah.
Mr Oliver said that the mob of 107 steers which Midfield had delivered to Wandobah in June 2017 was unusual in that, typically, Midfield agisted entire bulls rather than steers at Wandobah. Mr Oliver recalled noticing, when the steers first arrived, that one was the dominant animal amongst the mob. He discussed that fact with Mr Smith. But he did not recall specifically having discussed the fact that the dominant animal was a ‘stag’. Indeed Mr Oliver could not recall previously having had any stags on his property. On most occasions when Mr Smith attended Wandobah to work in the yards, Mr Oliver assisted him. As already mentioned, Mr Oliver estimated that there were occasions — he estimated about six — when he could not assist and Mr Smith would work alone.
As noted earlier, the relevant holding yards, forcing pens, race and crush at Wandobah are orientated in a north-south direction. A series of forcing pens leading to a narrow cattle race runs in a south to north direction, ending with a cattle crush and a loading ramp (and gates to exit left or right prior to the ramp) at the northern end. To the east of the forcing pens and race is the northern holding yard, which is about 30 m in length. South of the northern holding yard, accessible from that yard by a gate, is the southern holding yard. Cattle can be moved into the first of the forcing pens and from there into the race via a gate from the southern holding yard.
On the morning of 15 December 2017, Mr Oliver mustered the 107 cattle (including the stag) into the southern holding yard. Because the gate between the southern and northern holding yards was open, the cattle flowed into the northern holding yard. Mr Oliver closed that gate when about half of the mob had moved into the northern holding yard, leaving roughly half of the mob in each yard.
Several witnesses were asked to consider the process that Mr Smith would probably have adopted when he arrived at the yards. It was generally surmised that when Mr Smith arrived he would wish to move the cattle from the northern holding yard into the southern holding, with the access gate into the forcing pens open, so that the whole mob would enter and move through forcing pens into the race. To do so, it was also surmised that he would walk northwards along the fence between the northern holding yard and the race causing the cattle in the northern holding yard to circle back in a southerly direction into the southern holding yard.
From signs of blood and debris found along the fence between the northern holding yard and the race, it appeared likely that Mr Smith was first struck by the stag at about the midway point along the fence between the northern holding yard and the race, and on further occasions as he made his way northward along that fence. His body was found a short distance from the northern end of the northern holding yard, just outside of the yard. Upon finding Mr Smith, Mr Oliver also noticed the stag to be in a particularly agitated state, described as ‘completely crazy’. Blood was later detected on the stag’s hooves and leg. It was put down in the yard.
After Mr Smith’s death, both Mr Oliver and Mr McKenna made statements to police.
(a)Mr Oliver’s statement contained his observations of the mob of steers at the time he mustered them into the yards on the morning of 15 December 2017, prior to Mr Smith arriving. He said that he had taken specific note of the dominant animal as being ‘potentially dangerous and one to be cautious of when handling particularly in the yards’.
(b)In Mr McKenna’s statement he expressed the opinion that Mr Smith’s death was ‘preventable’ and that Mr Smith ‘should’ve been working with another person’ on the morning he was killed. These were some of the admissions that the applicant contends ought not to have been allowed into evidence.[6]

Midfield’s system of work

[6]The relevant admissions are set out in full at [41], below.

Midfield maintained certain policies that comprised elements of its system of work. Despite evidence of the practised operation of these policies, Midfield was unable to produce any documented form or expression of its policies and procedures governing the work of its field officers.
As to its undocumented policies, the applicant would only employ field officers that were born and raised on farms. The applicant’s general manager, Dean McKenna, said this was so its field officers would have the requisite experience and knowledge required to undertake the role. The rationale for that policy was, ‘first and foremost’, for employee safety and, secondly, for the in-depth knowledge of farms and farm animals that employees could bring to Midfield. New field officers would commence their training at the applicant’s processing factory, where senior management would assess their ability in the abattoir yards for several weeks. They would then work in the fields with a senior representative, who would assess how the new field officer would behave with animals. This included analysing their positioning inside a yard, their identification of specific cattle and their situational awareness.
Mr Smith was often one of the senior representatives involved in this training and assessment of new employees. Mr McKenna said that around 50 per cent of field officers would fail to meet the requisite standard after the factory and field assessment.
For present purposes, a key question explored at trial was whether Midfield had a ‘two‑person rule’, being that it required its employees to only enter an enclosed yard with a second person present. Mr McKenna gave evidence that Midfield had a rule in place whereby a field officer could only enter an enclosed yard with ‘larger cattle’ if another person was present. This rule was not formalised or documented until after Mr Smith’s death.
According to Mr McKenna, under the unwritten rules Midfield’s field officers were required to judge and assess whether cattle were dangerous, and Midfield employees were prohibited from entering an enclosed yard with an animal deemed to be dangerous. If an employee entered a yard against this rule, they would be disciplined, and multiple breaches would result in the person’s employment being reviewed.
Soon after Mr Smith’s death, Midfield created a document called ‘Cattle Yard Checks’ (‘the checklist’) which it required each Midfield field officer to fill out sign and date each time they attended a farm to carry out work with cattle. It was a three page document. On the second page, under the heading ‘What To Look For’, were listed, in bullet point fashion, a series of checks for field officers to make concerning the state of the yards, forcing pen, race, crush and loading race and ramp. On the third page under the heading ‘Cattle Yard Checks’, were the following instructions:
Overall visual check to be carried out and recorded for all yards. If you are revisiting a yard that you have previously inspected and nothing has changed documentation is not required.
Under no circumstances area [sic] Midfield employees to enter Pens or Yards that have cattle encaged in that area without another competent person present.
Beneath those paragraphs was a space for the employee to record the date, farm and location. Following that space was a table of items requiring a response for ‘OK’, ‘Attention Needed’ or any ‘Comment’ beneath which the field officer was to place his or her name and signature.
Mr Robertson, a former Midfield field officer, said that ‘as far as [he] was concerned’ there was a requirement to have a second person present when working in cattle yards, even before the introduction of the checklist. The evidence of Mr Farley, a current Midfield field officer, was that it was his own practice to bring a second person with him if he was attending a farm off-site, but that this was not reflected in any formal document of Midfield. As to whether it was a Midfield rule to always have two people together in a yard, he said he could not answer that with a yes or no. Mr Farley said that after Mr Smith’s death this rule was formalised by a change in existing documentation.
Liam Finnigan was also a field officer employed by Midfield. In his experience, the farmer would always be present whenever a Midfield employee was drafting cattle, because they would be showing the field officer which cattle they wanted to sell. If the farmer was not able to be there, Mr Finnigan would always take another Midfield employee with him. When pressed by junior counsel for the respondent, Mr Finnigan said he would have another person with him when drafting cattle because it was both a requirement of Midfield and also ‘just common sense’.
Keely Price was another of the applicant’s field officers. She said that she would draft cattle for purchase alongside a farmer about once a month. Ms Price said that there had been some changes to Midfield’s system of work after Mr Smith’s death. This included the checklist to complete. She said that she undertook the checks specified on the new document prior to the physical checklist being introduced and that she would have expected other Midfield employees to do the same, given their level of experience. Ms Price also maintained that the mandated requirement in place after Mr Smith’s death for two people to be present before entering an enclosed yard was ‘a known thing’ prior to his death, and that she would not have entered an enclosed yard by herself.
When it came to dangerous animals owned by Midfield, Mr McKenna said Midfield would control the risk by shooting the animal onsite, although this was ‘very rare’. In situations where it was a customer’s animal that was dangerous, Midfield would refuse to pick up the animal. Where a dangerous bull had to be moved, it was Midfield’s practice to blend the bull in a herd of quieter cattle. Mr McKenna maintained this was safer than trying to move a dangerous bull on its own, as it would become more agitated and aggressive.
PART C:THE APPEAL AGAINST CONVICTION
As we have stated, Midfield was charged on indictment with two charges of failing to provide and maintain a safe work system contrary to ss 21(1) and 21(2)(a) of the OHS Act but ultimately only convicted of charge 2. In order to understand the context in which the judge made the impugned evidentiary ruling about the admissibility of Mr McKenna’s statement, it is useful to understand the nature of both charges on the indictment.

As appears from the charges and particulars set out in Annexure A to this judgment, charge 1 was particularised as the failure to provide and maintain a system of work in which (paragraph 6):
(a)cattle are assessed and those identified as dangerous are separated;
(b)and/or employees were not required to enter an enclosed yard with dangerous cattle.
The judge ruled that Midfield had no case to answer in respect of charge 1 as particularised in paragraph 6(b) above. The jury was unable to reach a verdict in respect of the balance of charge 1 (that is, on the basis of paragraph 6(a) above). In the result, charge 1 was discontinued.
In respect of charge 2, as appears from the particulars in Annexure A, that charge was put on the basis that Midfield failed to provide and maintain a system of work in which (paragraph 5):
(a)a risk assessment of the enclosed yards was undertaken for the purposes of identifying a safe area or effective escape route; and
(b)another person was present to act as a backup and to provide assistance in the event of an emergency or ‘man down’ situation when undertaking work in the yard.
The jury returned a verdict of guilty on charge 2. It was not required to specify on which of the bases particularised in 5(a) or 5(b) it was satisfied of Midfield’s guilt. The question of the factual basis upon which the charge was proven was the subject of argument on the plea before the judge. The judge was not satisfied beyond reasonable doubt that particular 5(a) had been proven but was so satisfied as to particular 5(b).[7]
[7]Reasons, [44].
In considering both grounds of appeal it is important to bear steadily in mind the factual basis upon which Midfield was found guilty of breaching ss 21(1) and 21(2)(a) of the OHS Act. Relevantly, the particulars for ground 1 of the appeal — that is, that the verdict of the jury was unreasonable or could not be supported having regard to the evidence — were predicated on the basis that Midfield was convicted solely for not having a system of work requiring a second person present when work was being undertaken in a cattle yard (being the ground of charge 2 particularised in paragraph 5(b) of the indictment).
So, the particulars to ground 1 stated:
The jury must have had a reasonable doubt as to whether, when an employee of the applicant was undertaking work in the cattle yard, it was reasonably practicable for the applicant to require, in all the circumstances, another person to be present to act as a backup and to provide assistance in the event of an emergency or ‘man down’ situation, especially given (1) the low likelihood of death or injury; and (2) the conflicting expert evidence on that issue.
On the hearing of the appeal Midfield argued its grounds in reverse order to the way in which they were numbered; that is, it first argued its second ground that the trial judge erred in allowing purported admissions contained in the statement of Dean McKenna to be admitted into evidence. Similarly, we propose to start with ground 2.

Ground 2: the judge erred in admitting the purported admissions of Mr McKenna into evidence

Mr McKenna made a statement to police dated 30 January 2018, some six weeks after the death of Mr Smith. Mr McKenna had attended at Wandobah within an hour or so of learning of Mr Smith’s death. Before making his statement, he had also learned from Midfield’s employees what Mr Oliver had said he had observed about the state of the stag that day. Most pertinently, Mr McKenna’s police statement contained the following paragraphs:
45.I believe Pat’s death was preventable. I believe that Pat should have been working with another person on the day. The other person is normally Craig Oliver at this property that helps Pat handle the livestock. I believe Craig was too busy with shearing on his property on the day.
46.I believe also that the animal in question (that killed Pat) should not have been there due to it being known as a dangerous animal. Both Craig and Pat knew that it was a stag and not a steer.
47.Every week Midfield Meats handles stags and as soon as they come into our possession we process them at the first opportunity if we are aware they are [a] stag and a dangerous animal.

The judge’s ruling

At trial, prior to empanelment, Midfield applied to exclude paragraphs 45, 46 and 47 as being inadmissible. Resisting the application, the respondent contended that those paragraphs contained admissions made by Mr McKenna on behalf of Midfield. Both parties accepted that Mr McKenna had authority to make representations on behalf of Midfield.
The trial judge ruled that Mr McKenna’s statements contained in those paragraphs were admissible, with the exception of the last sentence in paragraph 45.[8] At the time of making the ruling, both charges 1 and 2, and each of the two bases upon which they were alleged, remained in play.
[8]DPP v Midfield Meat International Pty Ltd (Rulings No. 1, No. 2 and No. 3) [2021] VCC 1568 (‘Evidence Ruling’).
Midfield submitted that Mr McKenna’s statements in paragraphs 45 and 46 amounted to ‘no more than the expression of hindsight beliefs based on hearsay information.’ Midfield further argued that neither paragraph exposed the reason for Mr McKenna reaching the conclusion that ‘Pat’s death was preventable’. Moreover, relying upon principles stated in Anglim & Cooke v Thomas,[9] Midfield argued that Mr McKenna could not confess or admit to matters on behalf of the company of which he had no personal knowledge.
[9][1974] VR 363, 371 (Harris J) (‘Anglim’).
As for paragraph 47, Midfield argued that Mr McKenna’s statement in that paragraph was equivocal or ambiguous. Contrary to the respondent’s assertion that Mr McKenna was to be taken as saying that all stags were dangerous, Midfield argued that he was simply stating that all dangerous animals are processed at the first opportunity, including stags.
For these reasons, Midfield argued, Mr McKenna’s statements in those three paragraphs could not amount to ‘admissions’.
Alternatively, if any of the representations were capable of amounting to an admission, Midfield argued that the probative value of those representations was outweighed by the danger of unfair prejudice and should be excluded pursuant to s 137 of the Evidence Act 2008.
Relevantly to the present appeal, the respondent submitted to the trial judge that, read in context, by paragraph 45 Mr McKenna effectively acknowledged that the risk of serious injury or death to Mr Smith in undertaking his work for Midfield would have been eliminated or reduced had he been working with another person. In expressing that view, Mr McKenna implicitly accepted that such a measure was reasonably practicable and that there had been a failure to implement it.
After referring to the relevant provisions in the Evidence Act concerning admissions, the judge acknowledged that, ordinarily, it is for a jury to determine whether an accused made a particular admission, but it is for the trial judge to first determine whether it is reasonably open for a jury to make that finding.
The judge observed that, in general terms, the facts in issue concerned whether or not the applicant had failed to provide and maintain systems of work that insofar as was reasonably practicable, amongst other things, prevented its employees working alone with cattle in enclosed yards. There was no dispute before the judge that Mr McKenna was, himself, very experienced in handling cattle and had the requisite specialised knowledge which would permit him to give opinion evidence on that subject. The judge found that, on their face, Mr McKenna’s representations bore directly on the facts in issue and were probative of the respondent’s case.
Next, the judge considered the applicant’s argument relying upon Anglim. As to the proposition that Mr McKenna could make no admission about a matter of which he could only have knowledge through hearsay, the judge concluded, as Harris J explained in Anglim, that an admission made on that basis will not be inadmissible but, depending on the circumstances, may carry no weight. Further, an admission made in reliance upon hearsay may carry weight if it can be demonstrated that the person making the admission has sufficient familiarity with the subject matter of the admission.[10] The judge concluded that, in the circumstances at hand, Mr McKenna’s position and experience enabled him to make admissions which carried some weight. In the result, the judge found that it was no bar to admissibility that Mr McKenna’s opinion/admission was formed on the basis of hearsay information.
[10]Evidence Ruling, [49]–[50].
The judge was also satisfied that the factual basis and reasoning process for Mr McKenna’s opinion was sufficiently exposed in his statement. The statement in the second sentence of paragraph 45, namely — ‘I believe that Pat should have been working with another person on the day’ — informed the assertion in the first sentence that ‘Pat’s death was preventable’.[11]
[11]Evidence Ruling, [52].
As to the argument that paragraph 47 was ambiguous or equivocal, the judge accepted that it may not be possible to attach weight to a statement if it was so regarded. Nevertheless, the judge concluded that, by reference to all of the evidence, the jury would be well placed to assess the meaning that Mr McKenna intended to convey in that paragraph for themselves. If they remained unsure about its meaning, they would not attach any weight to that representation.
The judge then turned to the alternative argument that the representations should be excluded under s 137 of the Evidence Act. The judge assessed the probative value of the admissions as high. He held that any danger of unfair prejudice as may exist would be ameliorated by the opportunity given to the respondent to ask Mr McKenna to explain and qualify what he had said. The danger of any residual prejudice could, in the judge’s view, be managed through direction and guidance to ensure that the jury carefully examined the foundation for any of Mr McKenna’s opinions.

Submissions on appeal

On the hearing of the application for leave to appeal, Midfield essentially repeated the two arguments it put to the trial judge, in support of its contention that the judge made in error in ruling that Mr McKenna’s statement was admissible. The first was that the representations contained at paragraphs 45–47 of the statement were not capable of amounting to ‘admissions’. Unless they could be admissions, the statements were no more than inadmissible hearsay or opinion that ought to have been excluded. Secondly, even if the representations were capable of being admitted as admissions pursuant to s 81 of the Evidence Act, the judge should have excluded the statement under s 137 of the Act.
Assuming an error is established, that is not the end of it. To succeed on the appeal under s 276(1) of the Criminal Procedure Act 2009, Midfield would next need to establish that any error was productive of a ‘substantial miscarriage of justice’.
Turning to the first alternative argument, Midfield conceded, as it had done before the trial judge, that Mr McKenna, as general manager and a director of Midfield, had authority to make the relevant representations on behalf of the company, thereby satisfying the requirement of s 87 of the Evidence Act that a person making an admission on behalf of a party had authority to do so. Even so, Midfield argued that what Mr McKenna said in the relevant paragraphs in his statement were, for several reasons, incapable of amounting to admissions.
The first reason was that Mr McKenna had no factual basis for expressing the opinions contained in those paragraphs. His opinion that Mr Smith’s death was preventable could not amount to any meaningful admission when Mr McKenna himself was not present when the accident occurred; could not know whether Mr Smith knew there would be a stag in the yard before arriving at the location; and had only observed the stag himself more than an hour after the incident. The judge’s reasoning by analogy with the facts in Anglim was misplaced because, here, Mr McKenna could have no expertise in the state of mind of Mr Smith or Mr Oliver (referring to the second sentence in paragraph 46).
Secondly, the rationale for Mr McKenna’s opinion in paragraph 45, that Mr Smith’s death ‘was preventable’, appears to be contained in paragraph 46 of his statement in which he stated his belief that the animal ought not to have been in the yard because it was ‘known’ to be ‘a dangerous animal’. No proper factual basis was established for that belief.
Thirdly, given that the fact of death is not an element of the offence under the OHS Act, and that the judge found that it had not been established to the criminal standard that the absence of a second person was causative of Mr Smith’s death in any event,[12] Mr McKenna’s opinion that ‘death was preventable’ had little or no probative value.
[12]Reasons, [47]
Fourthly, some of Mr McKenna’s representations were ambiguous in their meaning. In particular, his statement in paragraph 47 that Midfield would ‘process’ (that is, euthanise) a stag at the first opportunity was ambiguous as to whether he meant that Midfield did so because the animal was a stag, or because it was ‘dangerous’.
Fifthly, the representations were not reliable statements of fact because they were made in highly emotional circumstances following the death of Mr Smith having regard to Mr McKenna’s close personal relationship to him.
Coming to the second alternative argument, s 137 of the Evidence Act provides that, in a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. As the language of the provision makes clear, once a determination is made that the probative value of the evidence is outweighed by the danger of unfair prejudice, the judge has no discretion but must refuse to admit the evidence.
If, contrary to its first argument, Mr McKenna’s statement was admissible as an admission, Midfield relied upon the same arguments summarised above for contending that the probative value of Mr McKenna’s admission was very low. To be weighed against evidence of such low probative value, as Midfield put it, was the danger of unfair prejudice. One source of unfairness was the likelihood that a representation made by a director of the Company would be afforded disproportionate weight, made worse by the fact that the opinion that the death was ‘preventable’ focused on an irrelevant causal consequence of the alleged system failure given that death or serious injury was not an element of the offence.
Further, that disproportionate weight was heightened still by the fact that the evidence of Mr McKenna, and the tendering of his statement, was to be the first evidence heard by the jury in the trial. Midfield’s capacity to have Mr McKenna qualify and explain his opinion was also constrained by the judge’s ruling that, in cross-examining its own director, Midfield was not to ask leading questions.
Insofar as necessary, we will refer to some of the respondent’s submissions when analysing the applicant’s arguments below.

Analysis

For the reasons that follow, we consider that the judge’s reasons for refusing the applicant’s application to exclude Mr McKenna’s statement were unimpeachable.
Section 81 of the Evidence Act provides that the hearsay rule and the opinion rule do not apply to evidence of an admission. An ‘admission’ is defined in the Dictionary to the Act as a previous representation made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding) which is ‘adverse to the person’s interest in the outcome of the proceeding’.
The definition in the Evidence Act of an admission does not, by its terms, require that the representation concern a fact in issue. To be admissible at all, however, the representation must be relevant. To be relevant it must be capable of rationally affecting (directly or indirectly) the assessment of the probability of the existence of a fact in issue.[13] To be an ‘admission’, so as to avoid its exclusion as hearsay or opinion, the representation claimed to be an admission by a party must be adverse to that person’s interest in the outcome of the proceeding.
[13]Evidence Act 2008, s 55.
In this proceeding, and relevantly to the issues on the application for leave to appeal, the fact in issue is whether particular, nominated measures were reasonably practicable measures that Midfield should have implemented to reduce or eliminate the risk of injury or death for those working in cattle yards. The critical nominated measure, identified in particular 5(b) to charge 2, was to have a second person present while working in an enclosed cattle yard.
In paragraph 45 of his statement Mr McKenna made two logically related statements of opinion, namely that Mr Smith’s death was preventable and that Mr Smith should have been working with another person. Together, they amounted to a single proposition: Mr Smith’s death would have been prevented by him working with another person.
A statement by a director of Midfield that having another person at the yard — one of the nominated, reasonably practicable measures for the purpose of charge 2 — would have prevented Mr Smith’s death, was one that could rationally affect the assessment of the probability of the existence of a fact in issue. It was also adverse to Midfield’s interest in the outcome of the proceeding because it supported the proof of a fact that constituted an element of the offence charged.
We agree with the respondent’s submission that paragraph 45 is directly relevant to a fact in issue, namely whether Midfield should have had a system requiring two people to be present when someone was working in the yards. Although what appears in paragraph 45 is an opinion, s 81 of the Evidence Act excludes the operation of the opinion rule in relation to an admission. Inasmuch as the opinion constituted hearsay, s 81 also saves it from being inadmissible.
Midfield incorrectly identified the rationale for the first opinion (that the ‘death was preventable’) as only being contained in those statements in paragraph 46 about the animal in question being known to be dangerous and that it should not have been there. Midfield’s arguments skew the judge’s reasoning in this respect. The judge did not, for example, find that Mr McKenna’s rationale for stating that Pat’s death was preventable (paragraph 45) was only that Smith and Oliver knew the stag was dangerous and that Midfield’s ‘system’ was that the stag should not be in the yard (paragraph 46). Rather, the rationale was principally found in the statement (paragraph 45) that another person should have been in the yard.[14]
[14]See above at [52].
Whilst statements in paragraphs 46 and 47 might also have supported Mr McKenna’s view of the death being preventable, they do not undermine the clear sense in which Mr McKenna’s explained his opinion by reference to the failure to have a second person present. So much was made clear by answers he gave in re-examination.[15] Several of Midfield’s arguments (i.e. the first, second and fourth ‘reasons’ given for the representation being incapable of being an admission) lose force once the basis for the opinion is identified.
[15]See below at [118]–[119].
Apart from providing some collateral support for his opinion expressed in paragraph 45, Mr McKenna’s statements in paragraphs 46 and 47 were more directly relevant to the bases alleged in the particulars to charge 1 which, at the time of the ruling, remained under consideration.
Finally, to the extent the opinion was, itself, based upon hearsay, we agree with the judge that Anglim holds that such a circumstance merely goes to weight, not admissibility, but that if the person admits something of which he or she knows nothing at all the admission may not have any evidential (that is, probative) value.[16] Here, on the question of whether the presence of a second person at the yards might have had some potential to eliminate or reduce the risk of Mr Smith’s death, Mr McKenna could not possibly be said to be someone who had no knowledge at all on that subject given his own knowledge and expertise of working cattle within yards.
[16]Anglim [1974] VR 363, 371–372. Moreover, since the enactment of the Evidence Act in 2008, admissibility is determined by relevance, and probative value is an element for considering the exclusion of otherwise admissible evidence.

In summary, in answer to the applicant’s five reasons for contending that the representations were incapable of amounting to admissions:[17]
(a)Mr McKenna’s factual basis for expressing his opinion in paragraph 45 was a mixture of hearsay information passed onto him from Mr Oliver via an employee of Midfield as to what Mr Oliver had observed, and Mr McKenna’s own knowledge and familiarity with working cattle within yards.
(b)The rationale for Mr McKenna’s opinion that ‘death was preventable’ was not solely contained in paragraph 46: even so, to the extent it was supported by Mr McKenna’s opinion that the stag should not have been there, the jury had ample opportunity to hear Mr McKenna’s explanation for that view (in the evidence he gave) and to attribute that basis such weight as the jury thought appropriate.
(c)The circumstance that the judge was unable to find that the presence of a second person would have prevented Mr Smith’s death[18] did not rob the admission of probative value, given that the judge was ‘comfortably satisfied’ that the jury must have concluded that it at least would have reduced the risk of death.[19]
(d)The judge was correct to determine that such ambiguity as existed in paragraph 47 was a matter for the jury to resolve; and, in any event, paragraph 47 was, for reasons we have explained, of subsidiary relevance to the primary opinions expressed in paragraph 45.
(e)Mr McKenna made the statement six weeks after the accident in a written statement given to the police. The police statement was checked by Mr McKenna and signed by him. In those six weeks he had had an opportunity to learn about the circumstances of the occurrence and give it real thought. Any emotional component to his reaction would have significantly subsided. There is no substance in the suggestion that his admissions lacked reliability because of his emotional state.
[17]Above at [58]–[62].
[18]Reasons, [47].
[19]Reasons, [48].
In our view the judge was plainly correct in determining that paragraphs 45–47 of the statement were admissible.
If the statement was admissible (as we find it was), the question then turns to whether or not the judge erred in exercising his discretion not to exclude the paragraphs of McKenna’s statement under s 137 of the Evidence Act.
In our view, the judge was correct to assess the probative value as high. For reasons just given, we do not accept that its value was significantly weakened by reason of the statement having been made in emotional circumstances. It is improbable that Mr McKenna made the statement to the police six weeks later in the grip of some emotional or irrational frame of mind so as to rob the opinion he expressed of its significant probative value. Again, for reasons we have already given, we do not accept that there was such inadequate basis for his opinion as to deprive it of significant probative value.
Turning to the consideration of unfair prejudice, evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. As Hunt CJ at CL pointed out in R v BD:
The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.[20]
[20](1997) 94 A Crim R 131, 139 (emphasis in original), quoted with approval in Papakosmas v The Queen (1999) 196 CLR 297, 325 [91]; [1999] HCA 37 (‘Papakosmas’). See also Thomas (a pseudonym) v DPP [2021] VSCA 269.
Thus, as the respondent argued, merely because Mr McKenna’s statement was adverse to Midfield’s interests and that it may now regret that Mr McKenna made the statement, does not give rise to any unfair prejudice.
Any lack of proper basis for the opinions expressed in paragraphs 46 and 47, or any claimed ambiguity about them, had limited capacity to cause unfairness to the applicant in respect of its conviction on charge 2 given that the subject matter of those paragraphs did not directly bear upon the assessment of the reasonable practicability of the paragraph 5(b) safety measure. But in any event Mr McKenna was examined and cross‑examined about the statements he made in those paragraphs and there was ample opportunity for Midfield to correct or clarify their meaning and to proffer any different justification for the admission made in paragraph 45.
There is nothing in the complaint that Midfield was unfairly constrained by the judge’s ruling that, in cross-examining its own director, Midfield was not to ask leading questions.
The trial judge gave this direction in the middle of Midfield’s cross-examination of Mr McKenna. In our view, the judge’s intervention did not hamper Midfield’s cross-examination of Mr McKenna either generally or in relation to Mr McKenna’s representations contained in paragraphs 45, 46 and 47 of his police statement. Midfield’s counsel was able to elicit qualifications and concessions from the witness which were unfavourable to the respondent’s case. These answers were very largely elicited through non-leading questions, both before and after the judge’s direction. A number of these qualifications and concessions related to Mr McKenna’s representations in his police statement.
Unsurprisingly, at the conclusion of this cross-examination, counsel for the respondent sought and obtained leave, pursuant to s 38 of the Evidence Act, to cross-examine Mr McKenna (in her re-examination of him) upon the basis that Mr McKenna had given unfavourable evidence to the respondent’s case. Counsel for the respondent’s application was substantially unopposed by Midfield.
There was then some discussion about whether Midfield’s counsel would be entitled to further question Mr McKenna once counsel for the respondent’s cross-examination had been completed. The trial judge effectively ruled he would permit counsel for Midfield to ask further questions but only in a non-leading fashion (referring to s 42 of the Evidence Act). Midfield’s counsel submitted that while his preference was to ask ‘open-ended questions to this witness’, he did not wish to be confined to non-leading questions. The trial judge said to Midfield’s counsel, ‘If you want to ask a particular lead question, if it’s non-controversial that’s fine, but if it’s a controversial matter you’d need to raise it’.
At the completion of the respondent’s counsel’s cross-examination of Mr McKenna pursuant to s 38 of the Evidence Act (in her re-examination of him), counsel for Midfield asked further questions of Mr McKenna in a non-leading way. Counsel did not make any further application to ask leading questions.
The entirety of the defence cross-examination/questioning of Mr McKenna reveals that Midfield was able to effectively explore with Mr McKenna, and expose before the jury, the factual basis and reasoning process for the making of the relevant representations contained in his police statement. The defence was able to extract concessions and qualifications without the need to resort to leading questions. Midfield did not identify, either at trial or at the hearing of this application, any serious forensic disadvantage or unfairness caused by the requirement that non-leading questions be asked. We can see none. This would explain why counsel barely pressed or challenged the trial judge on this requirement.
There is also no merit in the argument that the statement had an unfairly disproportionate effect because it was led at the outset of the trial, and that it unfairly put Midfield on the ‘back foot’ throughout the trial: or put differently, that the statement should have been disallowed so that the Crown be required to lead the subject matter of that evidence orally from McKenna. In our view, those arguments are simply another way of contending that a regretted admission made in a written statement was harmful to Midfield — it did harm Midfield because it was adverse to its interests in the outcome of the trial, but not unfairly so.
Leave to appeal on this ground of appeal should be refused.

Ground 1: The verdict of the jury was unreasonable or cannot be supported having regard to the evidence

It was common ground that there were four matters which the respondent had to prove beyond reasonable doubt in order to sustain a conviction against Midfield on charge 2 upon the ground particularised in paragraph 5(b). It had to establish:
(a)Midfield was an employer;
(b)There was a risk of serious injury or death to its employees when they were working alone in enclosed spaces with cattle;
(c)Midfield failed to provide or maintain a system of work that would have reduced or eliminated that risk, namely a system that required a second person to be present when a field officer worked in an enclosed yard with cattle; and
(d)It was reasonably practicable for Midfield to implement that system.
Midfield conceded that:
(a)it was an employer;
(b)there was a risk of serious injury or death to its employees when working in an enclosed space, such as a yard, with cattle; and
(c)having a system of work requiring that its field officers always have someone else present whilst working in cattle yards with cattle would, at least to a degree, reduce the risk of serious injury or death.
Therefore, by the end of the trial, the focus of argument rested on whether or not it was reasonably practicable in all of the circumstances for Midfield to provide and maintain such a system.
In determining whether, in relation to ensuring the health and safety of an employee, it is reasonably practicable to require that a particular safety measure be implemented to eliminate or reduce a risk of serious injury or death, s 20(2) of the OHS Act requires that regard must be had to:
(a)the likelihood of the relevant risk eventuating;
(b)the degree of harm to an employee if the risk eventuated;
(c)whether the particular safety measure was known or knowable as a means of reducing or eliminating the risk;
(d)the availability and suitability of the safety measure as a means of eliminating or reducing the risk; and
(e)the cost of the safety measure.
Of those parameters, it was further conceded that if the risk eventuated the likely harm was of serious injury or death. Midfield had not contended that the cost of the safety measure was such as to render it unreasonable, nor was it in issue that it was a known measure. Thus the factual dispute was narrower still — it was focused upon a consideration of the likelihood of the risk eventuating and the suitability (or utility) of always having a second person present as a means of eliminating or reducing the risk. As the applicant put it in written submissions to this Court, the central issue at trial was not whether a second person could have been provided, but whether a second person ought to have been provided.[21]

Legal principles

[21]Citing Baiada Poulty v The Queen (2012) 246 CLR 92, 100 [15], 107 [38] (French CJ, Gummow, Hayne and Crennan JJ), 114 [66] (Heydon J).

The principles relating to the inquiry necessitated by s 276(1)(a) of the Criminal Procedure Act 2009 are well settled. The question for this court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.[22]
[22]M v The Queen (1994) 181 CLR 487, 493 (Mason CJ, Deane, Dawson and Toohey JJ); [1994] HCA 63 (‘M’).
In Libke v The Queen,[23] the High Court summarised the function of appellate courts as:
The question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by

the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.[24]
[23](2007) 230 CLR 559 (‘Libke’).
[24]Libke (2007) 230 CLR 559, 596–7 [113] (Heydon J).

An appellate court must make an independent assessment of the evidence. It must also proceed upon the assumption that the jury assessed the complainant’s evidence to be credible and reliable.[25] A doubt an appellate court experiences when embarking on an independent assessment will, in most cases, be a doubt which a jury ought to have experienced. However, the court must consider that the jury is entrusted with the primary responsibility of determining guilt and give full weight to the advantage it had in seeing and hearing witnesses give their evidence.[26]
[25]Pell v The Queen (2020) 268 CLR 123, 145 [39] (The Court); [2020] HCA 12 (‘Pell’).
[26]M (1994) 181 CLR 487, 492–4 (Mason CJ, Deane, Dawson and Toohey JJ).
It is only where such an advantage is capable of resolving a doubt experienced by an appellate court that the court may conclude that no miscarriage of justice occurred. If, even making full allowance for the advantages enjoyed by the jury in assessing the credibility of witnesses, the appellate court concludes that there is a significant possibility that an innocent person has been convicted because the evidence on the record is tainted, contains discrepancies, displays inadequacies or otherwise lacks probative force, that court is bound to act and set aside the impugned verdict.[27]

Submissions

[27]M (1994) 181 CLR 487, 493–5 (Mason CJ, Deane, Dawson and Toohey JJ).

As at trial, the applicant’s argument before this Court about reasonable practicability focused, first, on the evidence about the likelihood of the risk eventuating and, secondly, on the suitability (or utility) of always having a second person present as a means of eliminating or reducing the risk of serious injury or death when working in enclosed cattle yards.
As to the likelihood of the risk eventuating, the applicant highlighted the following aspects of statistical evidence presented to the jury:[28]
(a)the respondent’s evidence of 17 on-farm deaths across Australia from being bitten or hit by an animal over a seven-year period;
(b)the absence of any statistical evidence of how having a second person present affected the likelihood of death or serious injury;
(c)defence evidence of 31 cattle-related fatalities in Australia over the 20-year period from 2001–2020, 19 of which occurred in cattle yards;
(d)a statistic showing that 14 per cent of serious injury claims on beef, sheep and cattle farms arose from being hit by an animal (producing a likelihood calculation of 1.4 serious injuries per million hours worked); and
(e)a calculation that a person was 16 times more likely to be killed in a car accident than working in cattle yards.
[28]Aspects of the statistical evidence were qualified or criticised in evidence, by the judge in remarks made to counsel during the plea hearing and even, implicitly, through questions put to the expert witnesses relayed from the jury.
From these sources the applicant argued that the evidence revealed that cattle related death or serious injury is rare.
As for the suitability or utility of requiring a two-person rule when working in enclosed yards with cattle, the applicant surveyed some of the evidence given by the opposing experts called by each side. The applicant sought to elevate the expertise and experience of the experts it had called, Dr Beggs (a veterinary practitioner and academic) and Dr Lower (an academic, and former director of the Australian Centre for Agricultural Health and Safety), over the experience and expertise of Dr Bush (an associate professor in livestock production at the University of Sydney) called by the respondent. The applicant argued that the experts it had called had the greater practical knowledge and experience. It sought to highlight differences in the opinions of the experts as to whether having a second person present was always necessary as a means of eliminating or reducing the risk of serious injury or death, and argued that the evidence of its witnesses ought to have been preferred. It also pointed to alleged inconsistencies in the evidence of Dr Bush.
As for the evidence of the various field officers of Midfield, the applicant argued that, in substance, they gave evidence they would have done the task that Mr Smith was doing on their own many times on their own properties. Midfield argued that, according to their evidence, the task was safe and straightforward. The applicant conceded, however, that the witnesses also said they would not have worked alone in the yards with cattle when working for Midfield. Although, in most cases, they said it was not necessary to have a second person present for their own work, which principally required negotiating with farmers about sales, Mr Smith’s work was different because he was dealing with agisted Midfield cattle and he specialised in such work.
The applicant submitted that, whatever Midfield’s requirement of its employees may have been,[29] the question remained whether it was reasonably practicable to require a second person for work in cattle yards, including work with bulls. To say that vastly experienced cattle handlers like Mr Smith and Mr Oliver could never work alone with, say, young dairy bulls three months old on arrival, hand-reared and ‘basically pets’, was neither reasonable nor practical. Further, the applicant argued, there is no support in the authorities for the proposition advanced by the respondent that well-resourced corporations bear any higher duty than single non-employer operators. The test of reasonable practicability is objective.[30]
[29]See the reference at n 31 below to the applicant’s counsel’s concession as to some difficulty in discerning what Midfield’s requirement was.
[30]Chugg v Pacific Dunlop (No 2) [1999] 3 VR 934.
Ultimately, the applicant argued that in light of ‘inconsistencies, discrepancies, or other inadequacy’ in the evidence in the case, a jury acting reasonably must have had a reasonable doubt about the reasonable practicability of requiring a second person to be present when Mr Smith moved the cattle from the northern holding yard to the southern holding yard.
The respondent emphasised that the question whether a proposed risk mitigation measure is reasonably practicable is a question of fact for a jury. It is to be determined having regard to the totality of the matters set out in s 20(2) of the OHS Act, not only the likelihood of a risk eventuating, and it is to be determined objectively and not subjectively according to the particular knowledge and circumstances of the employer.
Thus, the respondent argued, the likelihood of the hazard risk eventuating is but one consideration. It is to be considered along with the degree of harm if the risk eventuated, what the employee knew about ways of reducing the risk, the availability of suitable risk reduction measures and the cost of reducing the risk by such measures. All the expert evidence, it argued, accepted that having a two-person rule would reduce the risk of serious injury or death. Furthermore, Mr McKenna accepted that Mr Smith should have been working with another worker on the day he was killed.
Critically, the respondent argued, it would be open to the jury to accept the central proposition made on behalf of the applicant, that the occurrence of death or serious injury arising from enclosed cattle yard work is, relatively rare, and yet still consider that the implementation of the proposed measure was nevertheless reasonably practicable given the likely consequences of the occurrence of the risk were catastrophic — death or serious injury — and it was not contended by the applicant that the proposed measure was unavailable to it due to cost, availability or knowledge.

In sum, the respondent argued that in all the circumstances it could not be said that the evidence required the jury to have a reasonable doubt in relation to whether the implementation of the proposed measure was reasonably practicable in the circumstances of the case.

Analysis

The respondent opened the case before the jury by suggesting that the evidence of the incident concerning Mr Smith might help the jury determine whether an employee like him would have had less chance of being killed or seriously injured if he had had someone else with him. That person, it was suggested, may have been able to point out impending danger, distract a charging animal, help Mr Smith out of the yard, call an ambulance or administer cardiopulmonary resuscitation at the first opportunity.
As previously mentioned, of the four potential elements for proof of the charge, the only issue in contention on the appeal is the reasonable practicability of requiring a backup person being present while a field officer was working with cattle in an enclosed yard. On that issue, Midfield conceded that such a measure would reduce the likelihood of death or serious injury to a person working in a cattle yard, that is, it would make it safer to some degree. Furthermore, there was no evidence that cost was a barrier to implementing the measure, that there would have been no-one available to act as a backup, or that the possible use of the measure was unknown. In other words, there were no real disadvantages to weigh against the possible safety benefit of having the second person present.
Therefore, the focus of the applicant’s argument on appeal was largely directed to the incidence of death or serious injury events among cattle workers and, in that context, the utility of having a second person present while a field officer was working in a yard with cattle.
Nevertheless, these issues represent only two components of the whole inquiry. The wider focus for the Court was whether it was open to the jury on the evidence to be satisfied beyond reasonable doubt that in all the circumstances it was reasonably practicable to require Midfield to have had the two-person requirement in place as part of its system. We agree with the respondent’s argument that, for this consideration, the jury (and this Court) must have regard to the totality of the matters referred to in s 20(2) of the OHS Act.
Relevant to the question whether Midfield ought to have a system requiring the presence of a second person when its employees worked with cattle in enclosed yards, the parties drew upon various industry publications. Those publications, and the relevant passages within them, included the following:
(a)WorkSafe ‘A practical safety guide – Beef cattle handling’:
•In a section on ‘Cattle Handling’, under a heading ‘Bulls’: ‘Never trust any bull …’ and ‘Never work bulls on your own’.
•Under a heading ‘Working cattle through the race’: ‘Avoid working in yards on your own. Work with a partner if you can.’
(b)Australian Centre for Agricultural Health and Safety, ‘Safe cattle handling – A practical guide’ (2005):
•In section 3.3,Working with Cattle, under the heading ‘Handling in forcing pens and races’: ‘Work should be undertaken with a partner where possible’.
(c)Australian Centre for Agricultural Health and Safety, ‘Cattle Handling Safety – A practical guide’ (2016):
•In the section Working with Cattle, under the heading ‘Handling in forcing pens and races’: ‘Work should be undertaken with a partner where possible’.
It may be accepted, as the applicant argued, that none of the guides unambiguously specify, in terms, that work should be undertaken in yards (as opposed to forcing pens and races) with a partner, and that none of the guides put their advice beyond recommendations as opposed to mandatory rules (apart from working alone with bulls). Nevertheless, the jury was not bound by the specific detail of any industry guide but were to decide for themselves what it considered, on the whole of the evidence before it, was the safety measures the OHS Act required.
In the respondent’s re-examination of Mr McKenna (after leave was obtained pursuant to s 38 of the Evidence Act to cross-examine him), Mr McKenna was asked if he would accept that the risk to a handler of serious injury or death when getting into an enclosed yard with cattle would be reduced if a second person was present. Mr McKenna accepted that it would ‘naturally reduce the risk’.
The cross-examination continued:
It’s obvious, isn’t it?---Yes. Yes, it is.
If a second person is there, they could alert — in the case of Mr Smith, they could have said, ‘Watch out for that cattle,’ if he’d had his back turned, or something like that?---Yes, they could have.
They could try and distract that cattle, by running up in a different direction and distracting them while Mr Smith made an escape?---Yes, they could have.
They could have helped Mr Smith, if he was impacted, get to safety a lot quicker?---Definitely.
They could call for help. His mobile was smashed; he’s got no means of communication on a remote farm. They could call for help with their own phone?---Definitely.
He could administer — this person could administer first aid, in the meantime?---Correct.
So, most certainly, the risk associated with any handler getting into a yard, handling cattle, is obviously, obviously reduced by having a second person there?---Yes.
In re-examination by counsel for the respondent, Mr Oliver gave the following answers:
Yes. Now, I just want to you ask you, about working alone, obviously you do it on your own property. That’s right?---Yes.
But would you regard it as safer for a handler to have a second person present. Not necessarily inside the yards with them but have a second person present whilst the handler is in the enclosed yards with the cattle?---Yes.
Dr Bush, the expert called by the respondent , was asked about the risk associated with an employee getting into an enclosed yard alone in order to weigh and draft a mob of cattle. He said:
---Okay. The risk – the risk is going to be increased. Because their ability to monitor every animal in that yard is limited, and the larger the yard, um, there’s a requirement for a person to be in – in the yard with the animals. Once the yards are smaller, um, you can, um, handle from outside the yards more easily. But in the larger yard that would not be possible.
So is it the case that the risk to the handler would be reduced if there was a second person present with them?
---Correct.
When asked what he thought about a system of work which did not require two people to work with cattle unless there was dangerous cattle he said:
Well given the size of the – the animals that are – are being handled, um, having two people is going to definitely make it a safer environment in which to work.
Dr Beggs, an expert called by the defence, generally resisted the proposition that it was necessary or appropriate in all situations of working with cattle in enclosed yards that there be a second person present. In substance, his view was that whilst it was not always safe to work alone in cattle yards, he strongly disagreed that it was never safe to do so. In his view, with experienced cattle handlers it was sufficient to leave it to their ‘situational awareness’, meaning ‘being in the moment and being able to react to things that are going on around you in order to remain safe’. Later in his evidence, however, he agreed that having a second person present was ‘preferable’ although he was not sure how much it might increase safety ‘but yes, it’s certainly preferable to have two people at the yards’.
Midfield’s defence to the ground of charge 2 as particularised in paragraph 5(b) was somewhat nuanced and potentially confusing.[31] On the one hand, it resisted the proposition that it was reasonably practicable, or indeed necessary, for it to have a system of work that always required there to be two persons present when a field officer was working in an enclosed yard with cattle. On the other hand, it sought to adduce evidence through its own field officers that their own practice, exercising their own judgment, was always to have a second person present whilst they were working with cattle in an enclosed yard.
[31]In final address, senior counsel for the applicant accepted that it was hard to understand on the evidence what Midfield’s true position was as to whether or not there was a ‘rule’ against working alone in enclosed yards with cattle.
In cross-examining Dr Beggs, the respondent exploited this form of defence putting to Dr Beggs as follows:
Doctor, we’ve had evidence from a number of field officers who have indicated that in their role as field officers, as employees of Midfield, their experience would indicate to them they should not work alone in yards drafting cattle. What do you say to that?---Well, I think that’s entirely appropriate. Um, there’s a difference – I’m not saying that I think it’s always okay to do this. What I’m saying is that I don’t think it’s never okay to do it. And if a field officer were to make a judgment that it was not safe, then I’m with them. Um, but equally, um, somebody – and people in industry as a whole, often make the judgment that doing this is safe, and so I’m not for a minute discounting what the field officers would say, good on them if they, um, they need to be as safe as they possibly can and if they identify a risk that would be better managed by two people, then that’s – their actions are appropriate. But what I’m saying is that that is not what’s common practice in industry in corporations or little.
What is, is that the employers need to ensure to the best that they can, the health and safety of their employees. Is that right?---Yes, that’s my understanding.
And if the employees individually have determined for themselves ‘we should not do this kind of work alone in a cattle yard’ would not the employer in that situation have mandated it?---Ah, mandating’s a bit [sic, ‘big’?] thing, isn’t it? It’s the whole never say never.
Furthermore, Dr Beggs seemed to agree, at least in a qualified way, that having documented procedures would be useful and reduce risk, saying:
… I would agree that a formal document describing those things is a very useful thing to have and, yes, it would definitely decrease risk. I’m not sure that the use of that formal document in every instance where someone enters a yard would be helpful.
No. And it also provides the employer with a mechanism to check that their employees are doing the right thing, is that right?---Uh, it may or may not. It depends. That’s potentially true.
Dr Lower, an expert called by the applicant, disagreed with the proposition contained in the WorkSafe safety guide that cattle workers should ‘never work bulls on [their] own’. Nonetheless, he agreed with the proposition contained in an industry guide that he helped to produce which stated that ‘where possible’ one should work with a partner when working in forcing yards and races. Dr Lower explained that was good advice in case something goes wrong, but in his opinion it certainly should not be a mandatory rule.
He agreed there was a risk of serious injury or death associated with the task of weighing and drafting cattle in enclosed yard. But that risk was only higher by working alone if something went wrong — not necessarily from the operation of weighing or drafting itself. Dr Lower agreed that the presence of a second person could reduce the risk, where something went wrong, by that person being able to render medical assistance, call for help, assist the worker exit from the yard or distract the animal. These were the considerations, he explained, that informed the recommendation that it was advisable to have a partner ‘where possible’.
In light of evidence of this kind, Midfield sought to downplay the benefit (that is, its utility) of having a two-person rule by emphasising the following:
(a)the rarity of the eventuation of the risk;
(b)the variation in the opinions of the experts as to whether the measure was necessary or desirable;
(c)the sufficiency of leaving the question of whether backup was required to the judgment of skilled, experienced and competent field officers;
(d)the fact that, without having a rule, field officers did often operate with a backup when the situation required it anyway; and
(e)the fact that none of the industry guidebooks mandated the presence of a second person when someone was working in a yard with cattle.
In our view, none of these arguments preclude an affirmative finding beyond reasonable doubt of the reasonable practicability of the measure. That is, the evidence as a whole did not compel the conclusion that the jury must have had a reasonable doubt that the measure was reasonably practicable.
In short, on the evidence:
(a)Midfield conceded that having a second person would make working with cattle in enclosed yards safer — that is, it would reduce the risk of death or serious injury inherent in the practice of working with 400–500 kg animals in an enclosed space.
(b)Midfield accepted that, although the eventuation of such a risk may be rare, the consequence of its eventuation is very grave (death or serious injury).
(c)There are no counterbalancing costs or inconveniences associated with implementing the measure.
(d)In practice most field officers, and even Mr Smith, did use a backup person when working in a yard with animals. Thus in substance the issue was whether compliance with the law should require the use of a backup person universally, rather than leaving it to individual judgment.
(e)The fact that an accident of this kind could happen to a person of the competence, skill and experience of Mr Smith could reasonably be viewed as illustrating the inadequacy of a system that left to personal judgment whether to have a second person present when working with cattle in enclosed yards.
Given those facts, and given that it was a matter of value judgment, it was clearly open to a jury to be satisfied beyond reasonable doubt that, despite there being occasions when having a second person would be inefficient and inconvenient, the benefit of reducing the risk of catastrophic consequences on rare occasions, and of having a general rule rather than leaving it to individual discretion, outweighed any downside in having a system incorporating the rule. Thus it was open to the jury to conclude that it was reasonably practicable to provide and maintain such a system.
Before concluding, we should briefly deal with Midfield’s submission against what it contended was the respondent’s proposition at trial that ‘well-resourced corporations bear a higher duty than single non-employer operators’. It is doubtful that any such proposition was advanced. Rather, the respondent countered certain evidence Midfield led from its experts about the practices of private farmers working alone on their farms, by redirecting attention to the responsibility of employers towards employees. In the case of Midfield, whose particular system of work was the subject of the proceeding, the respondent also drew attention to it being a well-resourced employer (which was not in dispute). Such matters were undoubtably relevant to the question whether this particular employer had failed to implement a system of work which the OHS Act required.
In our view, Midfield has done no more than show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard. But it has failed to establish that the jury must have had a reasonable doubt. Having made our own assessment of the evidence, we do not experience a reasonable doubt about Midfield’s guilt. Leave to appeal on this ground should be refused.
PART D:THE APPEAL AGAINST SENTENCE
The appeal against sentence falls to be considered against the factual background set out in Part C above.
The sentencing judge’s reasons
After setting out the relevant facts, the sentencing judge observed that the maximum penalty for an offence by a body corporate was 9,000 penalty units. At the time the offence was committed, a penalty unit was $158.57. Thus the maximum fine that could be imposed on Midfield was $1,427,130.[32]
[32]Reasons, [25].
Next, the trial judge referred to the victim impact statement provided by Mr Smith’s wife, Ms Kellie Smith, who described the devastating impact her husband’s death had had on her and those close to him. The judge observed that the impact of Mr Smith’s death on his family was an important consideration in the sentencing exercise.[33]
[33]Reasons, [26]–[29].
The judge then explained the factual basis for the sentence, and concluded that Midfield fell to be sentenced on the basis that the jury had accepted particular 5(b) of charge 2, namely that ‘it was reasonably practicable for Midfield to eliminate or reduce the risk to health and safety by providing and maintaining a system of work in which another person was present to act as a backup and to provide assistance in the event of an emergency or “man down” situation when undertaking work in the yard’.[34] No complaint is made about this aspect of the sentencing judge’s reasons.
[34]Reasons, [44].
The sentencing judge then set out the principles applicable to the sentencing of offenders in respect of breaches of the Act where death or serious injury occurs. His Honour derived those principles from Frewstal, and set out the following passage from that case:
First, unlike cases of unlawful homicide, the occurrence of death or serious injury is not an element of the offences charged. An accused is punished according to the gravity of the breach of duty owed under the OHSA, not according to the result or consequences of the breach.
Secondly, the gravity of the breach is measured by two factors — the seriousness of the breach itself (that is, the extent to which the defendant has departed from its statutory duty); and, the extent of the risk of death or serious injury which might result from the breach.
Thirdly, an assessment of the extent of the risk itself involves consideration of two factors — the likelihood of the occurrence of an event as a result of the breach (such as the event that occurred in the particular case) endangering the safety of employees or others; and, the potential gravity of the consequence of such an event (in particular, whether there is a risk of death or serious injury).
Fourthly, the fact that the breach in the particular case resulted in death is relevant only in the sense that it might manifest or demonstrate the degree of seriousness of the relevant threat to health or safety resulting from the breach.[35]
[35]Reasons, [45], quoting Frewstal (2015) 47 VR 660, 686 [127] (Priest and Kaye JJA).
The parties agreed that these were the correct principles that were applicable to the sentencing exercise in this case. The sentencing judge then observed as follows:
Consistent with those principles, the Crown did not undertake to prove the precise mechanism of Mr Smith’s death during the trial. Indeed, the jury were warned to the effect that Midfield was not on trial for causing Mr Smith’s death and that what was at issue related to whether Midfield had failed to address a risk by failing to provide and maintain a safe system of work.
For that reason, there was little in the way of forensic investigation of the precise circumstances leading to Mr Smith’s death, and in the absence of evidence of that kind it is not possible to reach any conclusion about whether the presence of a second person would necessarily have prevented the death, or, to put it in terms of the particulars of the offence, whether it would have ‘eliminated’ the risk of death or serious injury. …
On the strength of the evidence that was adduced at trial I can, however, be comfortably satisfied, again consistent with the jury verdict, that the presence of a second person would have ‘reduced’ the risk of death or serious injury. As Dr Bush made clear, the presence of another person in a position to oversee the task performed by the field officer would have provided another set of eyes which could warn of danger or assist in the event of emergency. Accordingly, Midfield will be sentenced on the basis that the identified measure would have reduced rather than eliminated the risk of death or serious injury.[36]
[36]Reasons, [46]–[48] (citation omitted).

Ultimately the gravamen of ground 1 of the application for leave to appeal against sentence, as it emerged in the course of oral argument, was that in light of Frewstal and Dotmar, it was not open to the sentencing judge to conclude that Midfield’s breach of statutory duty was serious and constituted a significant departure from the standard required. In our opinion that submission cannot be sustained. As Frewstal and Dotmar indicate, the gravity of the breach is measured by two factors — the extent to which the defendant has departed from its statutory duty and the extent of the risk of death or serious injury which might result from the breach. The extent of the risk further involves a consideration of the likelihood of an event occurring as a result of the breach that endangers the safety of workers and the potential gravity of the consequences.[61] The judge understood these matters and undertook the relevant analysis.[62]
[61]Frewstal (2015) 47 VR 660, 686 [127] (Priest and Kaye JJA); [2015] VSCA 266; Dotmar [2015] VSCA 241, [23] (Priest JA, Maxwell P agreeing at [1], Kaye JA agreeing at [33]).
[62]Reasons, [49], [59]–[65], [68].
We discern no error in the sentencing judge’s analysis. In the present case there was no dispute that the potential gravity was catastrophic; that was apparent even putting to one side the particular event that occurred on that tragic day in December 2017. That is, the risk to be guarded against was being trampled or otherwise physically injured by cattle in the yards; and it is obvious that, if such a risk eventuated, it could result in serious injury or death. Midfield accepted as much before this Court.
As to the likelihood of the risk eventuating, the sentencing judge accepted that events of this kind are ‘relatively rare’.[63] Accepting that that is so, it does not follow that Midfield’s breach was not serious, given the potential for catastrophic consequences against which the reasonably practicable measures were to guard.
[63]Reasons, [68].
As to the extent of Midfield’s departure from the required standard, we accept the respondent submission that this was not a case where Midfield had in place a system of work directed to reducing risk, but failed to maintain that system on a particular occasion. Rather, it was a case where Midfield did not have a system in place directed to this particular issue. We reject Midfield’s submission that the evidence of the other field officers established that Midfield had an unwritten system of work in place that required them not to enter yards with cattle unless a second person was present. We also reject the argument that Midfield’s ‘system’ of only hiring experienced stock workers meant that its failure to implement the two-person rule was only a minor departure from the required standard. It is questionable whether this hiring practice was a ‘system of work’; but even if it was, the two-person rule was an easy step for Midfield to take, without any issue as to cost of implementation, in response to a risk of very significant injury. In our opinion it was well open to the sentencing judge to characterise Midfield’s breach as serious, and having reviewed the evidence ourselves, we would characterise it the same way.
Under cover of ground 1, Midfield also submitted that Frewstal and Dotmar should be distinguished because each involved a breach of duty that caused the death or injury in question, whereas in the present case the judge was not satisfied beyond reasonable doubt that Mr Smith’s death was caused by Midfield’s breach. We do not consider that this difference is relevant, or that the trial judge erred in not drawing this distinction. The absence of causation does not mean that the breach was not serious. As Frewstal and Dotmar make clear,[64] the actual consequence in a particular case of the failure to take steps to ensure workers are not exposed to risk is generally not relevant to the objective gravity of the offence, although it may bear upon the nature and seriousness of the risk. That is, causation of the particular event is not determinative of the gravity of the offending. The sentencing judge recognised as much. Indeed, as Maxwell P explained in Frewstal and as quoted earlier in these reasons, ‘a very serious breach … might result in only a minor injury — or no injury at all … [c]onversely, a relatively minor breach can result in a death in circumstances which could not reasonably have been anticipated’[65] — and, we would add, a serious breach may result in a serious injury, although the seriousness of the injury is not the reason why the breach is properly to be regarded as serious. This case is of that latter kind.
[64]Frewstal (2015) 47 VR 660, 686 [127] (Priest and Kaye JJA); Dotmar [2015] VSCA 241, [22]–[23] (Priest JA, Maxwell P agreeing at [1], Kaye JA agreeing at [33]).
[65](2015) 47 VR 660, 671 [48]. Although Maxwell P was in dissent in that case as to the result, his Honour was in agreement with Priest and Kaye JJA on this aspect of the assessment of gravity: see 686 [127] (Priest and Kaye JJA).
For these reasons we consider that ground 1 must fail.
Ground 2: did the judge fail to afford Midfield procedural fairness?
Ground 2 of the application for leave to appeal against sentence is that the sentencing judge erred when assessing current sentencing practices and that he failed to afford Midfield procedural fairness in relation to the quantum of the fine imposed. This ground appears to us to incorporate two distinct (albeit related) grounds. However, we will deal with it as a single ground.
Midfield’s submissions
Midfield observed that, on the plea, it had submitted that the appropriate fine was in the range of $25,000–$50,000. It submitted that neither the respondent nor the sentencing judge had taken issue with that submission during the plea. Further, it submitted that the two ‘purportedly “comparative” cases’ to which the respondent had referred were not properly comparable because they had involved ‘causal breaches where the death was an aggravating factor’; they thus provided no real assistance. Midfield pointed out that ultimately the respondent only faintly pressed those cases. Midfield itself submitted to the sentencing judge that it could not find any directly comparable cases.
In relation to the sentencing judge’s conclusion that the utility of the past decisions was limited, and that comparison is fraught, Midfield pointed out that the judge said that nonetheless he had regard to general current sentencing practices. Midfield submitted that ‘it is unclear what cases his Honour could have used to properly assess, and give weight, to current sentencing practices in those circumstances’. Midfield submitted that comparative cases are only one factor, and ‘not the controlling factor, in the fixing of a just sentence’.
In relation to its complaint about a breach of procedural fairness, Midfield submitted as follows:
[H]ad the sentencing judge indicated during the plea hearing that the submission of a fine in the range of $25,000–$50,000 was not accepted (or that it appeared far too low), then if necessary Midfield could have provided additional material in support of that submission. The failure of the sentencing judge to indicate that the submission as to range was not accepted, and then to impose a penalty around ten times greater than the submitted range, reflects a failure to afford Midfield procedural fairness.[66]
In support of that submission, Midfield referred to Lennon v The Queen.[67]
[66]Citations omitted.
[67][2017] VSCA 85 (‘Lennon’).
In oral submissions Midfield contended that, if the sentencing judge had not formed that view during the plea hearing, but formed it after the plea hearing, he was required to bring the matter back for a further hearing to give Midfield an opportunity to make further submissions on the appropriate range.
The ‘additional material’ that Midfield said it could have relied upon, had the sentencing judge given it notice that he was not going to accept its submission on range, was as follows: Director of Public Prosecutions v CLM Infrastructure Pty Ltd,[68] Director of Public Prosecutions v Redback Tree Services[69] and Director of Public Prosecutions v St Vincent’s Care Services Ltd[70] (a matter that had been heard by the sentencing judge in this case and that was referred to in the plea submissions). Alternatively, it submitted, it could have contrasted its case with Dotmar, Frewstal, Director of Public Prosecutions vVibro-Pile (Aust) Pty Ltd,[71] and the cases referred to in those authorities.
The respondent’s submissions
[68][2017] VCC 192.
[69][2017] VCC 1602.
[70][2021] VCC 1315. We note for completeness that, on appeal, the conviction in that case was set aside and an acquittal was entered: [2022] VSCA 186.
[71](2016) 49 VR 676; [2016] VSCA 55 (‘Vibro-Pile’).
The respondent began by observing that on the plea the parties had plainly joined issue on the seriousness of the offending. Further, it observed that Midfield had only referred to the range it said was appropriate for the quantum in its response to the respondent’s reply, in the context of a submission that the offending was not serious, after which the respondent joined issue again with Midfield’s submission as to seriousness. It further pointed out that the sentencing judge indicated to the parties that there were matters relevant to the assessment of the gravity of the offence that his Honour did not yet have a concluded view about, and that the judge ‘concluded the substantive part of the hearing by inviting any further submissions from the applicant’s counsel, offering a ‘last chance’ to which counsel replied, ‘I can’t think of anything else to say Your Honour.’
The respondent submitted that this case was quite different from Lennon. In that case the sentencing judge had given a positive indication that the judge accepted a submission concerning remorse, and that the only issue was the weight to be given to that issue. However, in her reasons for judgment the judge stated that she did not accept that the offender had demonstrated remorse. In that case this Court accepted that, had the judge not given the indication she gave, counsel’s forensic choices and submissions would have been different.[72] The respondent submitted that this case is quite different: the sentencing judge gave no indication upon which Midfield relied to its disadvantage. Rather, the judge simply did not, ultimately, accept the submission Midfield made.
[72][2017] VSCA 85, [27] (Weinberg, Santamaria JJA and Kidd AJA).
As for the comparative cases, the respondent observed that the sentencing judge’s conclusion on the utility of comparative cases — namely that there are a ‘myriad of variables that make useful comparisons fraught’, but that his Honour would ‘have regard to general current sentencing practices in this area as one of many relevant sentencing considerations’[73] — was ‘a sound statement of orthodox sentencing practices’.
Consideration of ground 2 of the sentence application
[73]Reasons, [98].
In our opinion there is no merit to ground 2.
First, we accept the respondent’s submission that the manner in which the sentencing judge dealt with current sentencing practices was orthodox and did not reveal error. The judge correctly observed that he was required, by the Sentencing Act, to have regard to current sentencing practices. However, he accepted Midfield’s submission that the authorities to which his attention had been drawn were of limited utility. That did not mean that he put them entirely to one side; rather, his Honour stated that he had had regard to current sentencing practices as one of the relevant considerations. We understand his Honour to be indicating that he had had regard to the two cases the respondent had relied upon, but gave them limited weight, consistently with the submission made by Midfield. We see no error in that approach.
Secondly, we reject Midfield’s submission that the sentencing judge failed to accord it procedural fairness by not indicating to it that he did not accept its submission that a fine in the range of $25,000–$50,000 was appropriate. It is important to note that a sentencing judge is not generally required, in the course of a hearing, to expose to the parties his or her preliminary thoughts or conclusions, or to provide the parties with the opportunity to make submissions about the judge’s reasoning processes. Still less are judges required, after a hearing has concluded, to convene a further hearing or invite written submissions if it transpires that the judge has decided not to accept a submission that was put at the hearing. However, the position may be different if the judge has, in the course of the hearing, given a positive indication that he or she is disposed to adopt a particular argument and a party has adopted a particular course in reliance on that indication.[74]
[74]See, eg, Toole v The Queen [2014] NSWCCA 318, [44]–[45] (RS Hulme J, Basten JA agreeing at [1], Button J agreeing at [5]); Tweedie v The Queen [2015] NSWCCA 71, [26] (RS Hulme J), [54]–[55] (Basten JA); Munday v The Queen [2017] NSWCCA 95, [24] (Beech-Jones J, Johnson J agreeing at [1], Fagan J agreeing at [33]).
In the present context, the sentencing judge gave no indication that he had accepted Midfield’s submission as to the appropriate range of the sentence. That range was offered in the context of a submission that the seriousness of the offending was low. It was plain that the parties had joined issue on the seriousness of the offending, and, in particular, that the respondent contended that the breach of duty was serious. The judge had not indicated to Midfield that he accepted its characterisation of the seriousness of the breach. In those circumstances Midfield could not assume that the judge had accepted its submissions in that regard. It was open to Midfield to make submissions about the appropriate penalty if the judge accepted that, contrary to its primary argument, the breach of duty was serious. Had it taken that course it could have made submissions as to the other cases it identified as relevant before this Court. It made a forensic decision not to do so. It cannot now complain that it lacked the opportunity to do so. In that regard, we accept the respondent’s submission that this case is quite different from Lennon, for the reasons the respondent gave.[75]
[75]See [183] above.
This ground of appeal must therefore fail.
Ground 3: is the sentence manifestly excessive?
Proposed ground 3 of the application for leave to appeal is that the sentence imposed — namely a fine of $400,000 — was manifestly excessive.
Midfield’s submissions
Midfield submitted that, even accepting that a ground of manifest excess is difficult to establish, and although the matter had proceeded to trial, the sentence of a fine of $400,000 was wholly outside the sentencing range. It submitted that the sentencing judge had failed to give sufficient weight to the absence of any prior conviction for offences on the cattle-handling side of Midfield’s business.
Midfield placed considerable reliance on Dotmar, Frewstal and Vibro-Pile, which it said were comparative cases that were so different from its circumstances that they demonstrated that the sentence imposed on it was outside the range open to the sentencing judge.
In relation to Dotmar, Midfield submitted it involved
multiple offences with multiple victims (including offending over a 10-month period and against a background of several years’ egregious failure to adhere to proper safety procedures), where the company disregarded a WorkSafe intervention, had been warned of the dangers by employees, and was found to have demonstrated ‘an almost complete disregarded for the safety of its employees’. In Dotmar the guilty pleas were entered on what was to be the first day of the trial, and the company’s previous good character was of limited relevance given its ‘disdain for the safety of its employees over a considerable period’. Dotmar received a fine of $300,000 on the first charge (encompassing the 10-month period), and a fine of $75,000 on the second charge, which was held to be within range.[76]
[76]Citations omitted.
In relation to Frewstal, Midfield submitted as follows:
[T]he company pleaded guilty to three charges (failure with respect to the design of the plant, failure properly to inspect for safety, and failure properly to train for safety) and was sentenced to an aggregate fine of $250,000. Importantly, in that case the employer’s conduct was found to be causal of the worker’s death. Further, like in Dotmar, the company had been ‘put on notice … in the most explicit terms’ by WorkSafe about its safety requirements, and the failure to inspect, which in all likelihood would have prevented the accident, was described as ‘persistent’. By majority the sentence was found not to be manifestly inadequate.[77]
[77]Citations omitted.
In relation to Vibro-Pile, Midfield submitted as follows:
[T]he two companies were re-sentenced after a successful Director’s appeal to a fine of $250,000 on one charge (failure to maintain safe system of work) and $500,000 on a second charge (failure to provide instruction, training or supervision). They were found guilty at trial and fell to be sentenced for three discrete breaches of the Act (in relation to the system of work, inadequate training, and inadequate supervision). It was found that the defects in training and in supervision were particularly serious. While it was not a case of ‘blatant disregard’ of worker safety or ‘reckless indifference’ to risk, the breaches were found to be very serious, creating a grave risk to worker safety (for the worker on the rig and other workers working in its vicinity). Importantly, the failure to ensure the rig was properly bolted was found to have lead, as a direct result, to the death of the worker.[78]
[78]Citations omitted.
It concluded its written submissions on this ground as follows:
The penalty imposed in this case is manifestly excessive having regard to the lack of aggravating factors that would justify such a high penalty. Whilst general deterrence is always important in workplace safety matters, there was no evidence that what occurred to Mr Smith was in any way common let alone prevalent in the industry, yet his Honour regarded general deterrence as the ‘predominant’ sentencing purpose, necessitating Midfield being ‘heavily financially penalised’ and to incur ‘substantial reputational damage’. There was no intentional or reckless disregard by Midfield for the safety of Mr Smith. There was no prior incident or injury to field officers in the cattle yards to indicate that Midfield’s systems were inadequate. Considering its record in respect of animal handling over four decades, the accident should properly be regarded as an aberration.[79]
The respondent’s submissions
[79]Citations omitted.
The respondent contended that the breach of statutory duty by Midfield was serious; the sentence to be imposed could not be moderated by a plea of guilty; Midfield had relevant prior convictions under the Act, such that specific deterrence was a relevant factor; general deterrence was relevant and important; and Dotmar, Frewstal and Vibro-Pile all reveal that the sentence imposed was within range and not manifestly excessive. In relation to those three cases, it submitted as follows:
[Midfield] relies firstly on Dotmar. While there are differences in the circumstances in the offending it should be noted that Dotmar pleaded guilty, had no prior convictions and the maximum penalty was $1,051,380 (by effect of the value of a penalty unit) as compared to the current case where the maximum penalty is $1,427,130. In Dotmar the Court described the culpability of the offending company as ‘very high’ and rejected the contention that a total fine of $375,000 for two breaches of the Act was manifestly excessive.
[In] Frewstal, the offender pleaded guilty and had no prior convictions. In dismissing the Director’s appeal, the Court expressed the view that while the question of whether the sentence imposed of $250,000 was manifestly inadequate might have been ‘borderline’, the Court nevertheless exercised the residual discretion to dismiss the appeal.
In Vibro-Pile this Court resentenced the employer to fines of $500,000 and $250,000 arising from serious breaches of the Act. There, as here, there had been a trial.[80]
Consideration of ground 3 of the sentence application
[80]Citations omitted.

In our opinion ground 3 has no prospect of success. The offending was serious, as the sentencing judge found and as we have also found when considering ground 1 of the appeal against sentence. The maximum penalty for the offence was $1,427,130; the penalty imposed was 28 per cent of that amount. Midfield had prior convictions for breaches of the Act. We regard as unpersuasive the submission that the fact that those convictions did not concern its cattle-handling, but concerned other aspects of its business, rendered specific deterrence either of no, or of only limited, relevance. Midfield did not plead guilty and thus could not avail itself of the accepted mitigation in penalty that follows a guilty plea. Further, this Court has emphasised in the past the importance of the need for a penalty that sufficiently reflects the need for denunciation of breaches of the Act: ‘sentences imposed need to draw attention to the importance of workplace safety, and to send a message to employers that failure to eliminate or mitigate safety risks will attract significant punishment.’[81]
[81]Vibro-Pile (2016) 49 VR 676, 731 [233] (Maxwell P, Redlich and Whelan JJA).
In so far as the comparable cases are concerned, they do not support a submission that the penalty imposed on Midfield was wholly outside the range available. In Dotmar the penalty imposed for the first charge was $300,000 (being approximately 28 per cent of the maximum penalty at the relevant time)[82]. We accept that in that case the employer’s offending was more serious than Midfield’s (in particular, that it relevantly involved a period of 10 months, rather than a single day, and that the employer had failed to heed warnings by its workers and by WorkSafe). However, in that case the employer had no prior convictions under the Act and had pleaded guilty, albeit on the first day of trial. In the absence of considerations of that kind, it is plain that the employer would have received a considerably higher penalty than 28 per cent of the maximum sentence.
[82]The maximum penalty at the relevant time was $1,051,380: Dotmar [2015] VSCA 241, [5] n 2.
In Frewstal an aggregate fine of $250,000 was imposed for three charges, being approximately 19 per cent of the maximum penalty for a single charge.[83] Noting that there were three charges in that case, that was considerably lower than the penalty imposed on Midfield. But, again, the employer pleaded guilty and had no prior convictions; had that not been the case it would have received a considerably higher penalty.
[83]The maximum penalty at the relevant time was $1,299,240: Frewstal (2015) 47 VR 660, 676 [77] n 18.
In Vibro-Pile on appeal each company was fined $250,000 for a charge of failing to provide and maintain a safe system of work and $500,000 for a charge of failing to provide such instruction, training or supervision as is necessary to enable safe work. Even focusing solely on the first charge, that is approximately 23 per cent of the then maximum penalty,[84] which is only somewhat lower than the penalty imposed on Midfield. That sentence was also imposed in the context of a further sentence of a fine of $500,000; the principle of totality would necessarily have affected the individual sentences imposed for the two offences in issue. We also note that in Vibro-Pile the Court observed that the relevant offending did not involve a blatant disregard of worker safety, or reckless indifference to risk; but the breaches were nonetheless very serious.[85] In that regard, the case is on all fours with the present case.
[84]The maximum penalty at the relevant time was $1,075,050: Vibro-Pile (2016) 49 VR 676, 684 [15] n 8.
[85](2016) 49 VR 676, 731 [232] (Maxwell P, Redlich and Whelan JJA).
We accept that, like Midfield, the employer in Vibro-Pile did not plead guilty and that it had taken steps since the offending to remedy the breach. But those similarities do not mean that the imposition of a heavier fine on Midfield than on the employer in Vibro-Pile for the single offence of failing to provide and maintain a safe system of work thereby renders the sentence manifestly excessive. As the Court observed in Vibro-Pile when considering ‘comparable cases’:
Only limited assistance can be derived from the cases cited. On the one hand, fines of between $300,000 and $400,000 have been imposed for a single breach, in cases where there is a known or obvious risk with very serious potential consequences, even where the offender has pleaded guilty and has no prior convictions. In other cases, much lower fines have been imposed for what appear to have been serious breaches.[86]
[86](2016) 49 VR 676, 729 [222] (Maxwell P, Redlich and Whelan JJA). It appears from 727–8 [215], [218]–[219] that the cases in which fines of between $300,000 and $400,000 had been imposed for a single breach to which the Court was referring were: DPP v Tooradin Excavations Pty Ltd (County Court of Victoria, Judge Maidment, 15 September 2014); DPP v Melbourne Water Corporation [2014] VCC 184; DPP v AirRoad Pty Ltd [2012] VCC 1960; DPP v Australand Industrial Constructions Pty Ltd (County Court of Victoria, Judge Gaynor, 14 October 2011); DPP v Fonterra Australia Pty Ltd (County Court of Victoria, Judge Gucciardo, 17 October 2011); DPP v Tabro Meats Pty Ltd (County Court of Victoria, Judge Smallwood, 13 February 2013; DPP v Hansen Yuncken Pty Ltd [2013] VCC 1543; DPP v Eliott Engineering Pty Ltd [2014] VCC 266.
That remark is equally apt to this case. Further, it was made at a time when the maximum penalty was lower; thus a fine of $400,000 would have constituted 38 per cent of the maximum penalty; yet there was no suggestion that a penalty of that severity would have been outside the range.
Finally, it is necessary to emphasise that, while comparable cases may assist to reveal a possible pattern or range of previous sentences, an examination of comparable cases does not have the consequence that a range or pattern of sentences, as revealed by the cases, is necessarily correct, or that the upper or lower limits of those sentences are immutable.[87] As Gageler and Gordon JJ said in Dalgliesh:
[S]entences are not binding precedents, but are merely ‘historical statements of what has happened in the past’. ... Examination of sentences imposed in comparable cases may inform the task of sentencing but such examination goes beyond its rationale when it is used to fix boundaries that, as a matter of practical reality, bind the court.[88]
[87]See, eg, DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428, 450 [68] (Kiefel CJ, Bell and Keane JJ), 453 [82] (Gageler and Gordon JJ); [2017] HCA 41 (‘Dalgliesh’); Djordjic v The Queen [2018] VSCA 227, [74] (Beach and Kaye JJA, Whelan JA agreeing at [1]); Sutic v The Queen [2018] VSCA 246, [97] (Kyrou and Kaye JJA).
[88](2017) 262 CLR 428, 454 [83] (citations omitted).
For these reasons, even taking into account the sentences imposed in Dotmar, Frewstal and Vibro-Pile, we consider that the fine imposed by the sentencing judge was well within the available range.
Conclusion on application for leave to appeal against sentence
In light of the above analysis, we would refuse leave to appeal against sentence.
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ANNEXURE A

CHARGE 1: The Director of Public Prosecutions charges that MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) at Dunkeld in the State of Victoria on or about 15 December 2017, being an employer failed, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health.
Particulars
1.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) was an employer that agists cattle for processing at a farm property known as ‘Wandobah’ off Simpsons Lane, Dunkeld (the workplace).
2.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employees periodically attended the workplace to undertake weighing and drafting of cattle in an enclosed yard at the workplace (the task).
3.Certain cattle represent a higher risk to employees due to their aggressive or agitated behaviour, where they are uncastrated, or where they are improperly castrated (dangerous cattle).
4.There was a risk of serious injury or death to employees at the workplace from employees entering an enclosed yard with dangerous cattle. In particular, that risk existed to those undertaking the task with dangerous cattle.
5.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health in regards to undertaking the task with dangerous cattle.
6.It was reasonably practicable for MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) to eliminate or reduce the risk to health and safety by providing and maintaining a system of work in which:
a.Cattle are assessed and those identified as dangerous are then separated; and/or
b.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employees are not required to enter an enclosed yard with dangerous cattle.

7.On 15 December 2017:
a.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to implement the above control measures;
b.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employee Patrick Vincent Smith was undertaking the task at the workplace;
c.Amongst the cattle was a Friesian cross bull stag, which by virtue of incomplete castration, was a dangerous bull stag.
d.The risk eventuated when Patrick Vincent Smith sustained fatal injuries whilst undertaking the task with the dangerous bull stag at the workplace.

8.The employees exposed to risks and to their health and safety by MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) conduct included (but were not limited to) Patrick Vincent Smith.

The second charge, including the particulars, was worded as follows:
CHARGE 2: The Director of Public Prosecutions charges that MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) at Dunkeld in the State of Victoria on or about 15 December 2017, as an employer failed, so far as was reasonably practicable, to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health.
Particulars
1.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) were [sic] an employer that agists cattle for processing at a farm property known as ‘Wandobah’ off Simpsons Lane, Dunkeld (the workplace).
2.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employees periodically attended the workplace to undertake weighing and drafting of cattle in an enclosed yard at the workplace (the task).
3.There was a risk of serious injury or death to employees from contact with cattle in enclosed yards when working alone at the workplace.
4.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health in regards to the task.
5.It was reasonably practicable for MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) to eliminate or reduce the risk to health and safety by providing and maintaining a system of work in which:
a.A risk assessment of the enclosed yards was undertaken for the purposes of identifying a safe area or effective escape route; and
b.Another person was present to act as a backup and to provide assistance in the event of an emergency of ‘man down’ situation when undertaking work in the yard.

6. On 15 December 2017:
a.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) failed to implement the above control measures;
b.MIDFIELD MEAT INTERNATIONAL PTY LTD (A.C.N. 065 864 904) employee Patrick Vincent Smith was undertaking the task alone at the workplace;
c.The risk eventuated when Patrick Vincent Smith sustained fatal injuries whilst undertaking the task at the workplace.

7.The employees exposed to risks to their health and safety by MIDFIELD MEAT INTERNATIONAL PTY LTD’s (A.C.N. 065 864 904) conduct included (but were not limited to) Patrick Vincent Smith.

[2023] VSCA 106

11 May 2023