Nicholson v Colin Martin Stevens; Nicholson v Nathan Luke Stevens
[2025] QDC 17
•28 February 2025
DISTRICT COURT OF QUEENSLAND
CITATION:
Nicholson v Colin Martin Stevens; Nicholson v Nathan Luke Stevens [2025] QDC 17
PARTIES:
Simon Nicholson (Work Health and Safety Prosecutor)
(Appellant)
v
Colin Martin Stevens;
(Respondent)
and
Simon Nicholson (Work Health and Safety Prosecutor)
(Appellant)
v
Nathan Luke Stevens(Respondent)
FILE NOS: 33 of 2024; 34 of 2024
DIVISION:
Criminal/ Regulatory prosecution
PROCEEDING:
Appeal
ORIGINATING COURT:
Magistrates Court
DELIVERED ON:
28 February 2025
DELIVERED AT:
Rockhampton
HEARING DATE:
24 January 2025
JUDGE:
Clarke DCJ
ORDER:
In respect of Appeal 33 of 2024:
1. Appeal be dismissed.
2. The order made on 26 March 2024 is confirmed.
3. I find Colin Martin Stevens not guilty.
In respect of Appeal 34 of 2024:
1. Appeal be allowed.
2. The order made on 26 March 2024 is set aside.
3. I find Nathan Luke Stevens guilty.
CATCHWORDS:
APPEAL – APPEAL BY REGULATORY PROSECUTOR AGAINST ACQUITTAL – APPEAL BY REHEARING – Duty to ensure electrical safety - Whether a person conducting a business or undertaking – Where respondents were acquitted on summary prosecution of failing to comply with category 2 electrical safety duty – Whether made aware of risk of electrical harm – Whether failure to comply with duty
LEGISLATION:
Justices Act 1886 (Qld) ss 148A, 222, 223 and 225; Electrical Safety Act 2002 (Qld) ss 10, 21, 28, and 40C; Electrical Safety Regulation 2013 (Qld) ss 68, 69 and Schedule 2.
CASES:
Allesch v Maunz (2000) 203 CLR 172;
Fox v Percy (2003) 214 CLR 118;
Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679;
McDonald v Queensland Police Service [2018] 2 Qd R 612;
Teelow v Commissioner of Police [2009] QCA 84;
Mbuzi v Torcetti [2008] QCA 231;
Paradise Outdoor Building Company Pty Ltd v Steward
[2022] QCA 118;
Subramaniam v Public Prosecutor [1956] WLR 965.
COUNSEL: J.R. Hunter KC and S.E. Harburg instructed by the Office of the Work Health and Safety Prosecutor for the appellant
R.A. Pearce instructed by Butler McDermott for the respondents
The Work Health and Safety Prosecutor appeals against the learned Magistrate’s finding, acquitting the respondents Colin and Nathan Stevens (respectively father and adult son) of failing to comply with an electrical safety duty cast by s 40C Electrical Safety Act 2002 (Qld) (the Act).
The respondents are two of the three members of a family trust (the other being their wife and mother), which operates a pineapple farm called ‘Lake Mary Pines’ near the Capricorn Coast. On 14 July 2021 a harvester being pulled by a tractor either came into contact with, or within close proximity to, an overhead power line. Consequently, the electric current passed through the harvester and caused electric shock injuries to five workers (including Nathan Stevens) and caused the death of a worker Mr Cody Smith by electric shock.
The particulars of the prosecution were: the harvesting work posed an electrical risk, as defined in s 10(1)(a) of the Act; the workers were not electrically safe, as defined in s 10(2)(e) because they were not free from electrical risk as defined in s 10(4); and because the risk had not been eliminated or minimised, as was reasonably practical. It was alleged the respondents could have ensured the electrical safety by excluding the workers and tractor and harvester from three metres beneath or either side of the power line until either the height of the power line could be measured to confirm the three-metre difference, or that the power line had been de-energised by the electrical entity. The respondents were said to have failed to comply with their duties, which exposed the workers to a risk of death or serious injury. The charge dates were between 11 and 14 July 2021.
In this case, the respondents were individually charged by complaint and summons, but were tried together in the summary hearing. It is expedient to hear the appeals together; the ensuing appeal against the costs order made following the summary hearing has been adjourned until determination of the prosecution appeals, by consent.
In respect of Colin Stevens, the appeal is against the finding of the Magistrate that it had not been proven the respondent was a person conducting a business or undertaking.
In respect of Nathan Stevens, the grounds of appeal are:
1.the Magistrate erred in finding a comment made by Colin Stevens on 12 July 2021 was not admissible against Nathan Stevens; and
2.the Magistrate erred in finding the prosecution had not excluded the possibility the power pole (and thereby the power line) had moved following 12 July 2021; and
3.the Magistrate erred in finding the prosecution had to prove beyond reasonable doubt that Nathan Stevens had knowledge or awareness of a danger presented by the power line on 12 July 2021 to prove a breach of duty by him; and
4.the Magistrate erred in finding Nathan Stevens not guilty, on the basis the prosecution had not proven beyond reasonable doubt that he had failed to comply with his electrical safety duty.
Appeal generally a re-hearing on the evidence
As to the relevant appeal principles, section 223 of the Justices Act 1886 (Qld) confirms an appeal under s 222 is by way of rehearing on the original evidence given in the proceeding the order is appealed against.
The basic following principles apply:
1. It is for the appellant to demonstrate some legal, factual or discretionary error.[1]
2. The court is obliged to conduct a “real review”, and to make its own findings of fact, or draw its own inferences and conclusions.[2]
3. In Mbuzi v Torcetti [2008] QCA 231 [17] Fraser JA said this:
“The appeal proceeded under s 223(1) on the evidence given in the Magistrates Court. On such an appeal the judge should afford respect for the decision of the magistrate and bear in mind any advantage the magistrate had in seeing and hearing the witnesses give evidence, but the judge is required to review the evidence, to weigh the conflicting evidence, and to draw his or her own conclusions: Fox v Percy (2003) 214 CLR 118 [25]; Rowe v Kemper [2008] QCA 175 [5].”
[1] Allesch v Maunz (2000) 203 CLR 172; Teelow v Commissioner of Police [2009] QCA 84.
[2] Fox v Percy (2003) 214 CLR 118; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679; McDonald v Queensland Police Service [2018] 2 Qd R 612.
Further, pursuant to s 225 of the Act, among other things, on hearing the appeal I may confirm, set aside, or vary the appealed order or make any other order I consider just.
Not being indictable offences, the prosecution rights are preserved to appeal the findings dismissing the charges: the parties confirmed that no other statement of legal principle applies in the consideration of an appeal against acquittal, than in a case where the appeal is against conviction.
I have conducted a real review of the proceedings, including by consideration of the transcript of the hearing on 31 October, 1 and 2 November 2023, the exhibits tendered, written and oral submissions on 12 January 2024 and the oral (ex tempore) reasons given by the Magistrate on 26 March 2024. The parties sensibly do not seek to challenge the findings of fact made by the Magistrate, having had the benefit of assessing the honesty and reliability of the witnesses. Ultimately, his Honour was not prepared to accept the evidence of the farm workers, except Mr Fritz and Mr Sheriff, also noting his concern that some of their evidence was guarded.
The legislative framework
It is perhaps apposite to firstly address the basic legislative framework for the offence. Consistent with the purpose and object of the Act, s 30 imposes a duty of care on a person conducting a business or undertaking that they must ensure it is conducted in a way that is electrically safe.
The relevant definition in s 10 of what ‘electrically safe’ means is “for a person or property, that the person or property is free from electrical risk.” The term ‘electrical risk’ is relevantly defined to mean “in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity.” And, in s 21(4) the term ‘free from electrical risk’, for a person or property, means that “(a) electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or (b) if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.”
The term ‘person conducting a business or undertaking’ is defined in s 21. Essentially, it includes those conducting it alone or with others, or as part of a partnership or unincorporated organisation (but not a volunteer organisation). It is immaterial whether it is conducted for profit or gain. Section 21 (4) of the Act states that a person “does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.” The term ‘worker’ is defined in s 22.
Part 2 of the Act sets out the electrical safety duties, including that they are not transferable, and that more than one person may have a duty: ss 27, 27B. Indeed, a worker also has a duty under the Act. Subdivision 2 in s 28 confirms what is ‘reasonably practicable’ in ensuring electrical safety:
“In this Act,
"reasonably practicable", in relation to a duty to ensure electrical safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring electrical safety, taking into account and weighing up all relevant matters including—
(a) the likelihood of the hazard or the risk concerned happening; and
(b) the degree of harm that might result from the hazard or the risk; and
(c) what the person concerned knows, or ought reasonably to know, about—
(i) the hazard or the risk; and
(ii) ways of eliminating or minimising the risk; and
(d) the availability and suitability of ways to eliminate or minimise the risk; and
(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
The common law supports the conventional approach of reading definitions into the operable provision, to impose the duty: Paradise Outdoor Building Company Pty Ltd v Steward [2022] QCA 118 [7].
The relevant offence provision is in s 40C:
“40C Failure to comply with electrical safety duty—category 2
A person commits a
"category 2 offence" if—
(a) the person has an electrical safety duty; and
(b) the person fails to comply with that duty; and
(c) the failure exposes an individual to a risk of death or serious injury or illness…”
Section 45 applies to make a code of practice admissible in proceedings. The Electrical Safety Regulation 2013 (Qld) in s 68 operates to impose a requirement on a person conducting a business or undertaking to ensure that no person, plant or equipment comes within in an unsafe distance of an overhead power line, which is confirmed by s 69(1) to be an exclusion zone. The exclusion zone accepted as applying in this case in Schedule 2 is stipulated to be 3000 millimetres (or 3 metres).
The prosecution case
The learned prosecutor confirmed in the opening statement that the elements to be made out against each of the respondents were:
1.They were conducting a business or undertaking; and
2.They owed an electrical safety duty in ensuring the business or undertaking was conducted in a way that was electrically safe; and
3.They failed to comply with that duty; and
4.That failure exposed an individual to a risk of death or serious injury.
I have considered the evidence of the witnesses. In addition to the farm workers, the prosecution relied on the evidence of Work Health and Safety Queensland inspector Ms Hitchcock, Mr Arnold a senior electrical safety inspector, an Ergon electrical distribution linesperson Mr Den Exter, and a surveyor Mr Hiron. Documents tendered included the Electrical Safety Code of Practice 2020, photographs, maps, survey plans, and police body worn camera footage of field interviews with the respondents, relied on as (mixed) statements against interest. The field interviews were not able to be edited, and so contained other irrelevant and inadmissible hearsay statements. The prosecutor tendered a document identifying the passages relied upon, which was admitted as part of that exhibit.
In addition to the evidence of the witnesses, the prosecution case depended on facts admitted pursuant to s 148A Justices Act 1886 (Qld). That provision has similar operation to s 644 Criminal Code, such that an admission of a fact is sufficient proof of the fact without other evidence. I shall return to the significance of the admitted facts.
The pineapple farm is situated on undulating land. The field has been divided into numbered bays, each surrounded by a path or service road. A farm worker drives a tractor pulling a harvester trailer. There is a boom attached to the harvester, which has a conveyor belt. Ordinarily, the boom extends across half of the width of each bay, with the tractor circling the bay by use of the service roads. Farm workers walk in the vicinity of the boom, picking ripe fruit and placing it on the conveyor belt. Workers positioned on the harvester sort the picked fruit into bins. On occasion, a Manitou forklift is utilised to remove or load the bins onto the harvester.
There is an overhead 12,500-volt Single Wire Earth Return (SWER) power line running over the field.
On 12 July 2021, two days before the incident, the harvester was being operated in the vicinity of bays 3, 4 and 5. Colin Stevens was behind the harvester and operating the Manitou, coming in to take a full bin of fruit, when he made a comment about the height of the power line. Mr Fritz was the leading hand farm worker. He was sorting fruit on the harvester that day. Mr Fritz gave evidence that Colin made a comment about the fact “we” (the harvester) had almost touched the power line. His recollection was that Colin Stevens said, “We almost touched that.” Mr Fritz’ evidence was that Nathan Stevens asked what his father had said, and Mr Fritz responded: “He said we almost touched the power line.” Mr Fritz’ evidence was that Nathan replied, “He doesn’t know what he’s talking about.” Mr Fritz was unable to make a visual observation of the power line; his view was obscured by the overhead corrugated roof on the harvester. He said that when he looked a few minutes later when they were well passed the power line, it didn’t look like there was a problem to him. He accepted the harvester would have passed under the SWER power line more than once that day.
Mr Sheriff was not working on 12 July and so did not give evidence about that event.
On the day of the incident on 14 July, the witness Ryan Doak was operating the tractor that was pulling the harvester trailer in the path between bays 1 and 2. Farm workers Joshua Fritz, the deceased man Mr Smith, Simone Ronchi, Ian Page and Raymond Sheriff, along with Nathan Stevens were working on the ground in the vicinity, picking and loading pineapples onto the boom on the harvester, where Michela Valsecchi and Colin Stevens were sorting the collected produce into bins. The forklift was not in use that day.
The high voltage overhead power line was approximately 4.52 metres above the ground at the point the harvester came into contact with, or close proximity to, the harvester. Consequently, Mr Fritz, the deceased man Mr Smith, Mr Ronchi, Mr Page, Mr Sheriff and Nathan Stevens all suffered electric shock. Mr Doak, Ms Valsecchi and Colin Stevens were not caused electric shock. The power line was usually 7.8 metres above the ground at that point. The highest point of the harvester was measured to be approximately 4.36 metres above the ground. Prior to the incident, the harvester was ordinarily operated within approximately 0.46 metres (460 millimetres) of the power line, making allowance for the 3 metre exclusion zone mandated by the Regulation.
The power line was supported by power poles at either end, which were each supported by counteracting stay wires. The harvesting work was being done at about the mid-point of the overhead SWER power line. The pole on the respondent’s property was near a shed. The investigation confirmed that a stay wire on the pole which was on an adjoining property owned by a neighbour had listed, after one of the stay wires had failed or completely broken apart. Ergon employees had last inspected that stay wire in September 2020 and recorded some corrosion; an examination was not performed of the part under the plastic guard at the base of the stay wire. A repair or replacement of the stay wire was not deemed necessary at that time.
The investigation confirmed that at some indeterminate time, the stay wire had failed, and the pole consequently listed, causing the height of the power line to lower. There had been high rainfall prior to the day of the incident, and it was still wet and damp on the day of the incident, which Mr Den Exter conceded may have contributed to high voltage flashover, or tracking.
After describing the incident on 14 July, Mr Sheriff’s unchallenged recollection was that within 10 to 20 seconds Colin Stevens shouted, “We’ve hit the fucking power line.” He said that a few minutes later, when the electricity had dropped out, after everyone had stopped screaming and the men had tried to resuscitate Mr Smith, Colin Stevens yelled at his son Nathan in an agitated voice, “I knew that power line was too fucking low.” He said Nathan Stevens did not respond.
Mr Fritz’ unchallenged recollection was that Colin Stevens said, “We hit the fucking power line”, and that was directed towards his son. He said he was “not aware” if Nathan responded.
Mr Sheriff was transported by ambulance from the farm with Mr Fritz and Nathan Stevens, so they could be assessed at the hospital for any injuries from their electric shock. Mr Sheriff was making calls on his mobile telephone and did not engage in a conversation with the others on the way. Mr Fritz’ accepted evidence was that he raised the topic of what Nathan’s father had said on 12 May and Nathan Stevens responded, “You shut your mouth. No one knows about it.”
The admitted facts confirmed the pineapple farming business was owned and operated by The Stevens Family Trust. It was formally admitted that employee induction forms identified the hazard of working near overhead power lines. It admitted undisputed facts surrounding the events of 12 and 14 July 2021. It confirmed relevant heights and measurements. There was the formal admission of the death of Mr Smith by electrocution. The admissions confirmed the inability to ascertain the precise time the stay wire failed, but that metallurgical tests showed the corrosion may have progressed over a period of 2.5 years. There had been a subsequent change of policy for the energy supplier to check under the stay wire guard.
The SWER power line runs diagonally across the bays. The scale plan appears to confirm there was about 60 metres between where the work was being done on each day and the contour markings on the survey show the rise and fall through the paddock, which Mr Fritz estimated to be a difference of between one and two metres. As the Magistrate accepted, there is a possibility that Colin Stevens’ observation on 12 July was impacted by an optical illusion due to the undulating topography between the bays, which was confirmed by Mr Hiron and Mr Den Exter. Mr Hiron confirmed the harvester could well have previously “connected” with the SWER line, but for the varying height of the ground, relative to the power line.
In any event, it seems to me inevitable there was going to be an adverse incident. The issue for determination is whether there was evidence that the respondents bore the obligation to ensure safety, were aware of the risk to safety, and did nothing to address the issue, thereby exposing an individual to that risk.
An unsuccessful ‘no case’ submission at the conclusion of the prosecution case confirmed that just because there was no evidence whether the height of the power line had been checked, or arrangements made for Ergon to de-energise it, that the circumstantial prosecution case against the respondents should fail. On appeal, in the absence of any evidence, I am unable to accept a contention on behalf of the respondents that they may have done something about the power line after Colin Stevens’ comment on 12 July. There is no complaint that relevant evidence about that was not led by the prosecution.
Both respondents elected to neither give nor call evidence in their case.
Whether there was an error in the reasons for decision
The Magistrate gave detailed reasons why he was not prepared to accept the evidence of the witnesses Mr Ronchi, Mr Page, Mr Doak and Ms Valsecchi. As I said earlier, his Honour was prepared to accept the evidence given by Mr Sheriff and Mr Fritz. The evidence given by the remaining witnesses was not particularly controversial. On appeal, the parties concede there is no issue taken with the findings of fact and reasons stated by the Magistrate. Having conducted a review, I respectfully agree.
The other farm workers’ evidence seemed clearly impacted by the time that had elapsed since the incident. Their statements to investigators had occurred after they had met with one another and discussed the incidents on 12 and 14 July 2021 (except Mr Doak). It seems some may have also participated in a joint counselling session (except Mr Fritz). There was some emotion, perhaps bordering on animus, expressed towards the respondents. That is obviously understandable; they had been confronted with their own traumatic experience, and which led to the death of a workmate. They had tried in vain to revive the deceased man. Some had elected to commence proceedings for workplace injury, as they were entitled to do. Mr Page conceded his memory was poor following the electrical shock injury he suffered.
There was much cross-examination about discrepancies in the evidence about the comment made by Colin Stevens on 12 July – what was said and by whom, where the conversation happened and at what time of day it was said. Ms Valsecchi and Mr Ronchi were a couple on an international working holiday who both gave conflicting versions about whether they had themselves heard or been told about the comment attributed to Colin Stevens on 14 July.
Determination on appeal
As to the respondent Colin Stevens, the prosecution rely upon his formally admitted status as a trustee of the family trust, his frequent attendance at the farm, the fact that he would issue instructions to the workers when Nathan was not there, and the accepted evidence of Mr Fritz that he regarded Colin as a “boss”. I accept that as trustee, Colin Stevens is liable to prosecution for his own acts and omissions as legal personage of the trust and cannot hide behind the business structure.
The Magistrate considered those matters but was not satisfied as to the first element, that it had been proved Colin Stevens was a person conducting a business or undertaking, especially having regard to the uncontroverted statements he made in a recorded police field interview that he was retired, had passed the running of the business onto his son Nathan, and that he and his wife were often away from the farm.
With respect, I detect no error in the Magistrate’s reasoning and I am satisfied he was entitled to reach that view. Especially in view of the mixed statements against interest in the field interview, I also find it was incumbent on the prosecution to prove the crucial element that Colin Stevens was a person conducting the business or undertaking, at the relevant time.
Whilst it was formally admitted the business Lake Mary Pines was owned and operated by The Stevens Family Trust, there was no evidence about the terms of the trust deed, to ascertain the structure and type of trust, who the beneficiaries were, and how proceeds were distributed. There was no evidence of a corporate trustee structure. I am not able to accept the submission that the provisions in the Corporations Act 2001 (Cth) are applicable to an individual trustee of a trust, in the circumstances of this case.
Similarly, the prosecution did not lead evidence that would have confirmed Colin Stevens was a person conducting the business or undertaking, for example by confirming whether he hired and/or fired workers, performed the health and safety inductions, negotiated pay and conditions, organised wages payments, or approved sick or other leave.
Mr Sheriff’s evidence was that Nathan Stevens was the proprietor and Colin Stevens was Nathan’s “right hand man”, but said he received work instructions from both men.
When asked, Mr Fritz immediately said he regarded Nathan Stevens as his employer, before saying he regarded them both as bosses. Mr Fritz confirmed that whilst he would be given work instructions by both, Colin had not given him any on 14 July. He also agreed that Nathan was ‘the’ boss, that he owns the property, and that he remembered the time when Colin had been in charge before taking a step back and passing the farm to Nathan, some years earlier. He also agreed that Nathan held the chain of command, but that he bowed to Colin as a former owner, and due to his seniority and experience.
Further, in my view, the fact that Colin Stevens directed a comment at his son after the incident on 14 July implied the responsibility fell on his son’s shoulders, which is consistent with Nathan being a person conducting the business or undertaking, and not himself.
I expect it is commonplace that trustees of a family trust operating a business take little to no active role in the work or service being conducted by the business. I also expect that a past manager or person conducting a family farming operation would be inclined to keep some connection with the business, and even continue to assist, including by giving directions to workers. Notwithstanding their legal obligations, I am not persuaded that means they must relinquish their title as trustee, lest they be held accountable as a person conducting the business. I note the third trustee was not prosecuted for this offence.
I am satisfied that Colin Stevens was not ‘solely’ a worker, by reference to the definition in the Act, nonetheless I am not prepared to find beyond reasonable doubt that he was a person conducting the business or undertaking, at the relevant time.
Accordingly, the first element has not been proved to the requisite standard on the circumstantial case. I order the appeal against the decision finding Colin Stevens not guilty be dismissed.
But for that determination about the first element, I would have found Colin Stevens guilty, on a consideration of the other elements, consistent with the findings of fact by the Magistrate. If Colin Stevens was a person conducting a business or undertaking, he had the duty to ensure the business or undertaking was conducted in a way that was electrically safe. Following his observations on 12 July, consistent with the comment he made (effectively repeated on 14 July), and whether it was accurate or not, he should have complied with his duty by taking steps to observe the exclusion zone, measure the height of the overhead power line, or have made arrangements for Ergon to de-energise it. The failure to do so exposed a person to a risk of death or serious injury. But for the first element, I am satisfied on the circumstantial case, the only rational inferences are consistent with guilt, to the exclusion of inferences consistent with innocence.
Turning to Nathan Stevens, I am satisfied that the element has been proved that he was a person conducting a business or undertaking. This is uncontroversial, based upon the admitted facts, his status as one of the trustees, and his statement against interest “I am the owner” (agreeing he meant of the whole place), when speaking with investigating police. Further, Nathan Stevens also stated (while expressing concern for the welfare of Mr Smith) that Mr Smith had recently come working for “me” and that he had all of Mr Smith’s employment details in his shed. Even though the evidence of the other farm workers was not accepted about the events of 12 and 14 July, there was a body of unchallenged evidence that Nathan Stevens was the person managing or running the farming operation. The thrust of the evidence of Mr Sheriff and Mr Fritz also confirmed that.
Accordingly, the provision operates to confirm that Nathan Stevens consequently is a person who has the duty to ensure the electrical safety of the business or undertaking, and so the second element is made out to the requisite standard.
However, I am satisfied that an error has been demonstrated in the way the Magistrate was asked to consider, and with respect consequently misapplied, the basis for admissibility of Colin Stevens’ comment on 12 July.
The comment on 12 July was an obviously important part of the prosecution case. The prosecutor had conceded in closing submissions that the case failed if that evidence was not accepted. It was relevant to the assertion that Nathan Stevens was made aware of the risk and failed in his duty to eliminate or minimise that risk of electrical harm. It was relevant to prove what Colin Stevens shouted at him or in his presence. It was also relevant to the conversation Nathan Stevens had with Mr Fritz in the ambulance, after the incident on 14 July, which amounted to an admission or statement against interest.
There was no dispute that Colin Stevens made a comment on 12 July to the effect that there was an issue with the height of the power line. That evidence was directly admissible against Colin Stevens as a statement against interest; it showed that he appreciated the risk of electrical harm.
As against Nathan Stevens, the basis for admissibility was of the fact that the comment was made in his presence, to gauge Nathan’s state of mind and conduct afterwards, and not as to the truth or accuracy of the comment.[3] The Magistrate reasoned he could not use the comment as being admissible evidence in the case against Nathan Stevens because he did not agree with the comment, or adopt it as being truthful or accurate. Ordinarily, that proposition is undoubtedly correct; a hearsay comment such as this made by a witness or co-defendant, would not be admissible as an admission or statement against interest, unless it was accepted and adopted as being truthful and accurate, by him.
[3] See Subramaniam v Public Prosecutor [1956] WLR 965.
With respect, it seems to me that a confusion about the basis for admissibility has led to an error, compounded by a dispute in the summary hearing about the content of the comment, notwithstanding the acceptance there was a comment made to that effect. The fact that Colin Stevens made a comment about that topic was admissible in the case against Nathan. It did not matter what precisely was said, or whether what was said was accurate, or whether Nathan Stevens agreed with it or not. That is beside the point. The Magistrate accepted the evidence of Mr Fritz that Colin Stevens made the comment and so should have found the fact it was said was admissible against Nathan Stevens.
I am satisfied the fact that Colin Stevens made a comment about the height of the power line on 12 July is admissible in the circumstantial case against Nathan Stevens. Accordingly, there was a basis upon which to assert Nathan Stevens was made aware of the electrical risk. The fact that he disagreed, or did not appreciate there was a risk, is irrelevant. If not, any person who has the duty would escape prosecution or responsibility simply because they claim they didn’t think there was a problem.
The Magistrate correctly determined that it was unknown precisely when the stay wire failed, but should not have found that he could not have regard to the evidence about the comment on 12 July about that, and consequently incorrectly reasoned it could not be shown that Nathan Stevens was alerted to the risk.
In my view, the Magistrate was led into error by the assertion that a conviction of the respondents required proof of knowledge that the stay wire had broken, causing the pole to list, or that the breaking of the stay wire was imminent. That test was impossible. The obligation cast upon a person conducting the business was to ensure electrical safety. Evidence tending to prove the respondents were made aware of the risk and failed to do anything to ensure safety was sufficient.
I am satisfied that upon being alerted to that risk, Nathan Stevens should have acted to ascertain the height of the power line, made sure that the harvester was not being utilised and that workers were not within the exclusion zone, or arranged for the power supplier to de-energise the line. In failing to do any of those things, he has failed to discharge his duty.
There is support on the circumstantial case for the realisation of Nathan’s failure to comply with his duty when he made the comment to Mr Fritz in the ambulance, and perhaps by his silence when his father called out, after the incident. It would be arguable that is also what he meant when he stated in the recorded field interview, “I didn’t realise the line was so low” but I am prepared to defer to the Magistrate’s finding that statement was perhaps equivocal.
I am satisfied the circumstantial facts go to prove guilt to the exclusion of any inferences consistent with innocence.
I am prepared to find the elements of the complaint against Nathan Stevens have been proved beyond reasonable doubt. Accordingly, I find the respondent Nathan Stevens guilty.
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