Appellant v First Respondent

1 This is an appeal against the appellant's conviction on three charges under the Occupational Health and Safety Act 2004 (Vic) ('OHS Act' or 'the Act'). The appellant was charged on 1 September 2015, following an amputation injury to a worker at its recycling plant on 24 October 2014. Following several days of hearing, the appellant was convicted of all three charges on 19 July 2017. The appeal was filed within time on 16 August 2017. I heard the appeal on referral on 17 May 2018 but regrettably have been unable due to the press of other work to complete these reasons until now.

2 For the reasons that I now give, I will allow the appeal. I will hear the parties further as to the relief that should follow, if they are unable to agree.

3 At the relevant times, the appellant SKM Services Pty Ltd (ACN 130 867 220) ('SKM') operated a recycling sorting service in Coolaroo, Victoria. Specialised technical equipment was used for this purpose, including a baler used to crush and bale aluminium cans ('the aluminium baler') and a baler used to crush and bale steel ('the steel can baler').

4 Both the aluminium baler and the steel can baler were purchased by SKM from Rowland & Associates Pty Ltd ('Rowland'). Rowland was established in 1997, and until 2003, its operations involved the design, manufacture, sale, distribution and installation of baling machinery and associated equipment for the waste recycling industry. It commenced importing baling machinery and equipment from overseas in 2003 and continued to import, sell, distribute and install baling machinery and associated equipment. It had no prior findings of guilt or convictions under the OHS Act.

5 Rowland first supplied, commissioned, and installed the balers at the appellant's premises at Coolaroo in early 2011, then replaced the balers under warranty in 2012, following a defect that is not relevant to this proceeding.

6 SKM received assurances from Rowland that the aluminium and steel can balers supplied were adequately safeguarded and complied with all Australian Standards in relation to guarding. Rowland provided the appellant with an 'Australian Standards Document',[1] an 'Operational Safety Assessment for Baler',[2] and a 'Product Design and Operational Risk Assessment for Baler'.[3]

7 Rowland also provided assurances to SKM that crushing risks were eliminated by a sensor mechanism on the door of the balers that meant the door would not close if there was anything obstructing its downward movement. The Magistrate found that the 'machines were tested during the commissioning process and were found to operate as Rowland said they would'.[4] As she noted, however, the 'operation manual provided during the commissioning process outlined the operating procedure for the internal strapping of bales'.[5] It was uncontroversial that SKM adopted a procedure of strapping the bales ejected from the aluminium baler externally. The Magistrate found that strapping was not required in respect of bales ejected from the steel can baler.[6]

8 On 24 October 2014, an employee of the appellant, Mr Phuoc La, known as Gavin La, ('Mr La'), sustained an amputation injury to his hand on the aluminium baler. It is not clear how the injury was sustained, in particular whether it was caused by the door closing or the platen retracting. It was not, however, necessary for the prosecution of the charges to establish how the injury occurred, merely that there was a risk of injury.

9 Following the incident of 24 October 2014, the Victorian WorkCover Authority charged Rowland with two contraventions of s 30(1)(a) of the OHS Act in that as supplier of plant, it failed to ensure, so far as was reasonably practicable, that the plant supplied was safe and without risks to health when it was used for the purpose for which it was designed, manufactured or supplied. The charges related to both the aluminium baler and the steel can baler supplied to SKM. The charges alleged that Rowland knew, or ought to have known, that workers at SKM would strap the bales externally to both machines, and that there was a risk of injury associated with the door and platen including risks of entrapment, crushing or shearing. Rowland entered into an enforceable undertaking pursuant to s 16 of the OHS Act dated 7 March 2016, in consideration of which the charges were withdrawn.[7] The enforceable undertaking acknowledges that following receipt of notification of the incident, Rowland, amongst other things 'designed additional guarding to be installed around the baler [and] created a specific operating procedure for its customers that elected to strap bales externally from the baling machinery'.[8]

10 On 1 September 2015, charges against SKM were filed in the Magistrates' Court of Victoria ('the Magistrates' Court) at Melbourne by Inspector Michael O'Grady of WorkSafe Victoria as informant. As the first respondent has taken a Hardiman approach to the appeal, I will call Mr O'Grady 'the respondent'. There were three charges in total, each alleging that, on or about 24 October 2014, the appellant contravened s 21(2)(a) of the OHS Act.

[1] On or about 24 October 2014 at Coolaroo in the State of Victoria pursuant to section 21(1) and section 21(4) of the Occupational Health and Safety Act 2004 ("the Act") you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide and maintain plant that was, so far as was reasonably practicable, safe and without risks to health.

[2] On or about 24 October 2014 at Coolaroo in the State of Victoria pursuant to section 21(1) and section 21(4) of the Occupational Health and Safety Act 2004 ("the Act") you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide and maintain plant that was, so far as was reasonably practicable, safe and without risks to health.

[3] On or about 24 October 2014 at Coolaroo in the State of Victoria pursuant to section 21(1) and section 21(4) of the Occupational Health and Safety Act 2004 ("the Act") you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide and maintain systems of work that were, so far as was reasonably practicable, safe and without risks to health.

12 The full Particulars to the Charges are attached as Appendix A to this judgment.

13 Charges 1 and 2 relate to plant i.e. the aluminium and steel can balers themselves. The prosecution alleged that SKM as an employer failed, so far as was reasonably practicable, to provide for its employees a working environment that was safe and without risks to health, by failing to provide and maintain plant that was, so far as was reasonably practicable, safe and without risks to health.

14 Charges 1 and 2 are largely identical in their terms and particulars, save for the fact that Charge 1 concerns the aluminium baler and Charge 2 concerns the steel can baler. Specifically, the Particulars to both Charges allege in their respective Particulars 8 and 9 as follows:

1. SKM employees were tasked with strapping the bales outside of the aluminium/steel can baler ("the task").
2. The risk that employees operating the aluminium/steel can baler was [sic]/were exposed to was a risk of serious injury from a crushing, or shearing injury by performing the task of strapping the bales in close proximity to the exit point of the baler.

15 There is one additional difference in the respective Particulars to Charges 1 and 2. Charge 1 contains a Particular, Particular 12, that does not appear in Charge 2. That Particular is as follows:

1. On or about 24 October 2014, the risk eventuated when SKM employee Phuoc LA was injured in the process of strapping bales outside the aluminium baler.

16 Charge 3 relates not to plant, but to systems of work, specifically related to the risk associated with strapping bales outside of the balers. Charge 3 is particularised to relate to both the aluminium and steel can balers. Particulars 5, 6, 8 and 9 alleged as follows:

1. SKM employees were tasked with strapping the bales outside of the balers ("the task").
2. The risk that employees operating the balers were exposed to was a risk of death or serious injury from a crushing or shearing in [sic] injury by performing the task of strapping the bales of waste in close proximity to the exit point of the balers, with access to the chamber at the exit point when the door was open and it was not controlled or restricted.
3. SKM failed to provide safe systems of work associated with the task of external strapping of bales at the workplace.
4. It was reasonably practicable for SKM to have eliminated or reduce [sic] the risk to health and safety by:
   1. Developing and implementing a safe operating procedure involving employees keeping a safe distance away from the front door of the baler including the identification of the risks associated with the task and the balers.

17 Evidence in the prosecution case was given in the Magistrates' Court at Broadmeadows before Magistrate Aumair on 5, 6, 7 and 8 December 2016. SKM did not lead any evidence.

18 On 19 December 2016, following the close of the prosecution's evidence, SKM made a submission to the Magistrate's Court that there was no case to answer in respect of all charges, on various grounds.

19 On 28 February 2017, Magistrate Aumair found that there was a case for SKM to answer and adjourned the matter for closing submissions to be heard on 31 May 2017.

20 On 31 May 2017, the appellant made closing submissions to the Magistrates' Court. On that day, the matter was adjourned to 23 June 2017.

21 On 23 June 2017, Magistrate Aumair delivered oral reasons finding SKM guilty on all three charges.[9] She subsequently revised those reasons, although not substantially, in written form ('Reasons').[10] I will identify those aspects of the Reasons that are said to establish error of law in the discussion portion of this judgment.

22 On 19 July 2017, a plea hearing was held in which Magistrate Aumair recorded convictions against SKM in relation to all three charges. Magistrate Aumair made the following final orders:[11]

(a) 'The Accused, SKM Services Pty Ltd, at Coolaroo on or about 24/10/2014 did commit a breach of Act 04/107.21

FAIL TO PROVIDE SAFE WORKING ENVIRONMENT

Court Order: with conviction, fined $75000.00 with $45000.00 statutory costs'

(b) In relation to charge 2:

'The Accused, SKM Services Pty Ltd, at Coolaroo on or about 24/10/2014 did commit a breach of Act 04/107.21

FAIL TO PROVIDE SAFE WORKING ENVIRONMENT

Court order: with conviction, fined $25000.00'

(c) In relation to charge 3:

'The Accused, SKM Services Pty Ltd, at Coolaroo on or about 24/10/2014 did commit a breach of Act 04/107.21

FAIL PROVIDE WORKPLACE WO HEALTH RISKS

Court order: with conviction, fined $50000.00'

23 On 16 August 2017, SKM commenced this proceeding by filing a notice of appeal pursuant to s 272 of the Criminal Procedure Act 2009 (Vic). The appeal relates to the convictions, not the sentences imposed. The Notice of Appeal initially set out 10 alleged Questions of Law, amplified in 11 Grounds of Appeal. Alleged Questions of Law 9 and 10, and corresponding Grounds 10 and 11, were subsequently withdrawn. SKM sought leave to add a further Question of Law and corresponding Ground. I formally granted that leave, which was not opposed, at the hearing of the appeal. The Questions and Grounds are lengthy, and for that reason I do not set them out in the body of these reasons, but attach them as Appendix B.

24 I heard the appeal pursuant to a referral order made by his Honour Justice Ginnane on 15 May 2018, corrected by order made by his Honour on 15 May 2019.

25 SKM seeks that the appeal be allowed with costs and the orders of the Magistrates' Court be set aside. SKM's preferred position, as identified orally, is that if the appeal is successful the Charges be dismissed, rather than remitted to the Magistrates' Court for fresh hearing. In the alternative, SKM seeks that if grounds 1, 5, 7, or 8 are successful, the relevant charges be dismissed, and the matter otherwise be remitted to the Magistrates' Court for rehearing before a different magistrate.

Occupational Health and Safety Act 2004 (Vic)

26 SKM was convicted of contraventions of s 21 of the OHS Act. I set out below the relevant portions of that Act.

27 Sections 2 and 4 set out the objects of that Act and the principles to be applied in pursuit of those objects as follows:

2 Objects

(1) The objects of this Act are -

(a) to secure the health, safety and welfare of employees and other persons at work; and

(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and

(c) to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and

(d) to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards -

having regard to the principles of health and safety protection set out in section 4.

(2) It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.

4 The principles of health and safety protection

(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3) Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

(4) Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.

(5) Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.

28 The obligations imposed on employers are specified in Division 2 of Part 3 of the Act. Section 21 relevantly provides:

21 Duties of employers to employees

(1) An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Penalty: 1800 penalty units for a natural person;

9000 penalty units for a body corporate.

(2) Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following -

(a) provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;

...

(4) An offence against subsection (1) is an indictable offence.

29 Sub-section (2) specifies other failures that will constitute a breach of sub-section (1), relating, amongst other things, to the use of plant or substances in the workplace (paragraph (b)), the condition of the workplace (paragraph (c)), facilities for the welfare of employees (paragraph (d)), and the provision of necessary instruction, training or supervision (paragraph (e)).

30 Section 22 imposes a duty on employers to monitor the health of employees and the conditions at the workplace, provide information to employees, keep relevant records, and employ suitable persons to provide advice to the employer relating to health and safety of employees.

31 Duties relating to health and safety are imposed on other persons by Division 5 of Part 3. Sections 27, 29, and 30 impose duties in similar terms on designers, manufacturers and suppliers of plant relating to the safety of that plant, including (in the case of designers and manufacturers) obligations to carry out necessary testing and (in the case of all three) to give adequate information to persons to whom the design is given, or to whom the plant is provided or supplied. Sections 26 and 31 each impose a duty on persons respectively managing or controlling workplaces, or installing or commissioning plant, to avoid injury to health or safety, to the extent that is reasonably practicable. As noted earlier, Rowland was prosecuted under s 30(1)(a).

32 The obligations imposed on employers and others by this Part of the Act are generally qualified by what is 'reasonably practicable'. The meaning of that requirement is illuminated by s 20. That section provides as follows:

20 The concept of ensuring health and safety

(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person -

(a) to eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety -

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

33 On my analysis, the paragraphs to s 20(2) relate to the two limbs of 'reasonable practicability': what is reasonable, and what is practicable. These two limbs have some discrete elements, but overlap and together form the concept of 'reasonable practicability'. For example, paragraphs (d) and (e) relate more expressly to what is 'practicable' whereas paragraphs (a), (b) and (c) can be seen as relating more closely to what is 'reasonable' having regard to likelihood and severity of risk, and state of knowledge.

34 The OHS Act envisages that the same factual circumstances may give rise to multiple contraventions of a duty imposed on, amongst others, an employer. Section 33 provides as follows:

33 Single charge for multiple contraventions of certain duties

(1) This section applies to -

(a) a contravention of a provision of Division 2, 3, 4 or 5 by a person; and

(b) a contravention of such a provision for which an officer of a body corporate, partnership or unincorporated body or association (including a body corporate, partnership or unincorporated body or association representing the Crown) is liable.

Note

For liability of officers, see Divisions 4 and 5 of Part 11.

(2) Subject to any contrary court order, two or more contraventions may be charged as a single offence if they arise out of the same factual circumstances.

(3) This section does not authorise contraventions of two or more provisions of Division 2, 3, 4 or 5 to be charged as a single offence.

(4) If two or more contraventions are charged as a single offence, a single penalty only may be imposed in respect of the contraventions.

35 The elements of an offence under s 21 were recently identified by the Court of Appeal in DPP v Vibro-Pile (Aust) Pty Ltd[12] ('Vibro-Pile'). As a starting point, the Court observed:

Axiomatically, proof of a breach of the (OHS Act) does not require proof that the breach caused actual harm to any person. The offences created by the Act (and by its 1985 predecessor) are risk-based, not outcome-based, offences. The breach consists in the employer's failure to eliminate or reduce a risk to employee safety. The occurrence of death or injury is of evidentiary significance only. It is not an element of the offence.

...

As we have said, proof that the alleged breach caused the death (or injury) is not an element of the offence charged. On the contrary, as explained in the reasons which follow, the prosecution need only establish that:

(i) there was a risk to employee health and safety;

(ii) the measures identified as necessary would have eliminated or reduced the risk (as the case may be); and

(iii) it was 'reasonably practicable' in the circumstances for the employer to have taken those measures.[13]

36 The onus is on the prosecution to prove all elements of a charge for contravention of s 21, including the element of reasonable practicability of the measures that it is said should have been taken.[14]

37 One matter in contention in this appeal is the reliance the Magistrate placed on what she described as the appellant's 'ongoing obligation to be proactive to ensure safety in the workplace'.[15] This phrase appears as a subheading in the Criminal Charge Book prepared by the Judicial College in relation to offences under s 21. The text under that heading (as it was then) is as follows:

1. Compliance with the obligation created by s 21 requires employers to be proactive in identifying and responding to risks in a workplace. Employers must provide a safe workplace even for hasty, careless, inattentive or unreasonable employees (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; McLean v Tedman (1984) 155 CLR 306; Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531).
2. The jury must not consider the accused's acts or omissions with the benefit of hindsight, but with an understanding that one of the chief responsibilities of an employer is the safety of their employees. The Act requires employers to adopt an active, imaginative and flexible approach to potential dangers in the workplace, while recognising that human frailty is an ever-present reality (Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119; WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd [1998] NSWIRComm 200; (1998) 82 IR 80; R v Commercial Industrial Construction Group [2006] VSCA 181; (2006) 14 VR 321; R v Australian Char Pty Ltd [1999] 3 VR 834; Director of Public Prosecutions v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557).
3. From time to time employers must search for and address hazards that may exist in the workplace. The degree of vigilance required in searching for hazards depends in part on the degree of harm that may result from those hazards. It is especially important that employers responsible for inherently dangerous workplaces search for and eliminate hazards (Rail Infrastructure Corporation v Page [2008] NSWIRComm 169).

38 In Holmes v R. E. Spence and Co Pty Ltd,[16] ('Holmes') Harper J, as he then was, observed:

The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them. Remembering also that, in the main, such a responsibility can only be discharged by taking an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality.[17]

39 I was not referred to any authority dealing specifically with reliance on a supplier's assurances, and how that may intersect with the elements of a charge under s 21(1). Nor did either party make specific submissions on this point. On my analysis, reliance on the expertise and assurances of the supplier of plant may arise in relation to any or all of the three key elements of risk, failure to take an identified measure to eliminate or reduce that risk, and/or the reasonable practicability of taking that measure. Once raised in the defence case, the prosecution would be required to establish the element in question beyond reasonable doubt notwithstanding that reliance.

40 Another matter in dispute in this appeal is whether Charge 3 was bad for duplicity. The appellant says that it was so because it charges the one offence in respect of both the aluminium can baler and the steel can baler. Determination of that submission requires consideration of s 33 of the Act.

41 The origin of s 33 lies in Chugg v Pacific Dunlop Ltd,[18] in which Fullager J upheld the decision of a magistrate that an information based on s 21(1), as it then was, was bad for duplicity. Section 21 at that time did not delimit what is 'practicable' by the descriptor 'reasonably' that now appears. Nor did it specify within the section itself that breach of a duty thereby imposed was an offence. Otherwise the content of the section was in similar terms to the current section.

42 In Chugg v Pacific Dunlop Ltd, the information specified both a failure to provide safe plant and a safe system of work (s 21(2)(a)) and a failure to provide information, instruction and supervision (s 21(2)(e)), in respect of the one offence under s 21(1). The particulars to the claimed failure under s 21(2)(a) referred both to the plant in question (a Banbury mill) and the absence of a safe system of work in relation to the mill. The particulars to the claimed failure under s 21(2)(e) alleged three separate failures - failure to provide up-to-date circuit drawings, failure to inform the apprentice who was injured of certain modifications to the mill, and allowing him to work on the mill without adequate supervision. In short, the information specified a number of separate acts or omissions by which it was alleged that the defendant had failed to provide and maintain so far as practicable a working environment that is safe and without risks to health.

43 Fullager J rejected the argument for the informant that s 21 disclosed only one continuing offence, and held that it created a large number of potential offences, each consisting of an identifiable act or omission which constitutes a failure to comply with the general duty of care laid down by s 21(1). His approach was affirmed by the Appeal Division in R v Australian Char Pty Ltd.[19]

44 In response to these decisions, the 2004 Occupational Health and Safety Act Review[20] recommended that:

[T]he Act should be amended to remove any legal obstacle to the laying of a single information under s 21(1), the particulars of which refer to more than one of the sub-paragraphs of s 21(2). There will, of course, be many cases in which it will be necessary for separate informations to be laid. In the example referred to earlier, the allegation of a failure to provide safe plant would typically be the subject of a separate information, because quite different issues of 'reasonable practicability' would apply from those which would be applicable to a failure to provide appropriate training and supervision.

The real benefit of the change I am recommending would be to avoid the need for a multiplicity of informations where what is to be alleged is a variety of instances of non-compliance with a particular sub-paragraph of s 21(2). It is easy to contemplate in relation to s 21(2)(a), for example, that the failure to provide a safe system of work might be particularised by reference to a series of specific acts or omissions. The provision of s 31 of the NSW Act provides a useful model for amendment.[21]

45 The recommendation was accepted, and s 33 of the OHS Act was included in the OHS Act. It is limited to two or more contraventions of a single provision of the Act that 'arise out of the same factual circumstances'.

46 In Vibro-Pile, the Court of Appeal discussed in obiter the difficulties that can arise when a single charge alleges multiple particulars that raise different issues of reasonable practicability. In that case, a charge of failure to comply with s 21(2)(e) (information, instruction, training or supervision) alleged three distinct breaches (failure to induct, failure to train, and failure to supervise), which as the Court noted, raised different issues of reasonable practicability.[22] The Court went on to observe:

It follows, in our view, that the prosecuting authorities should be selective in their use of the power conferred by s 33(2). As the legislative history shows, the provision should be understood as having an essentially remedial or protective function, to avoid duplicity arguments where more than one breach has been particularised.

Importantly, the provision permits joinder of particulars under the single charge only where they arise from the same 'factual circumstances'. It is necessary to keep clearly in mind that the relevant 'factual circumstance' is not the occurrence of the accident that gave rise to the investigation, but the act or omission (or the course of conduct) constituting the breach of the Act.

Given the difficulties to which we have referred, the option of charging more than one contravention in a single charge should be reserved for cases where proof of the same - or substantially the same - facts will establish each contravention. In such a case, and provided that the jury has been directed appropriately, the judge should be able to infer from a guilty verdict on the particular charge that each particularised contravention was found proved.[23]

Criminal Procedure Act 2009 (Vic) and appeal on a question of law

47 The appeal is brought pursuant to s 272 of the Criminal Procedure Act 2009 (Vic). That section relevantly provides as follows:

272 Appeal to Supreme Court on a question of law

(1) A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.

(2) ...

(3) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.

(4) A copy of the notice of appeal must be served on the respondent in accordance with subsection (5) within 7 days after the day on which the notice of appeal was filed.

(5) A copy of the notice of appeal must be served -

(a) personally on a respondent who was the accused in accordance with section 391; or

(b) on a respondent who was the informant in accordance with section 392.

(6) An appeal under subsection (1) does not operate as a stay of any order made by the Magistrates' Court unless the Supreme Court otherwise orders.

(7) An appeal commenced after the end of the period referred to in subsection (3) is deemed to be an application for leave to appeal under subsection (1).

(8) The Supreme Court may grant leave under subsection (7) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to commence the appeal within the period referred to in subsection (3) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

(9) After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.

(10) An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for rehearing to the Magistrates' Court, may be enforced as an order of the Supreme Court.

(11) The Supreme Court may provide for a stay of the order or for admitting any person to bail as it considers appropriate.

48 An appeal pursuant to s 272 is on a question of law only. If on proper analysis the alleged error relates to a conclusion of fact, then that will not amount to an error of law if there was some evidentiary foundation for the conclusion. It may be an error of law if there is no evidence to support it, or the conclusion is irrational, illogical or unreasonable in the legal sense.

49 Although an appellant must show an error of law, that in itself is not necessarily sufficient to succeed in the appeal. What must be shown is that the ultimate outcome was vitiated by error of law.[24] In relation to an error of law constituted by a finding of fact unsupported by evidence, such an error will be a vitiating error if it 'materially affected' the decision.[25] A vitiating error will be shown if it is not possible to say that the same outcome would have been reached had the error not been made.[26]

50 In Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority),[27] an appeal pursuant to s 272, Osborn J (as he then was) rejected a submission that any error of law would entitle the appellant to a retrial. He held that s 272(9) reserved a discretion in the Court in respect of the grant of relief and it follows that:

the Court retains a discretion not to interfere with a Magistrate's decision to convict in circumstances where, although that decision has been accompanied by some error of law, this Court is persuaded that that error is not a vitiating error.[28]

51 In broad terms, the Questions of Law and Grounds on which the appellant relies allege error of law in respect of the following:

(i) The Magistrate's formulation of the duty cast on the appellant as employer (Questions 5 and 8, Grounds 6 and 9);

(ii) The Magistrate's conclusion that the appellant had failed in its duty to be proactive (Questions 1, 2 and 4 and Grounds 1, 2 and 4);

(iii) The test utilised by the Magistrate in relation to reasonable practicability (Question 3, Ground 3);

(iv) Conviction of Charges 2 and 3 in respect of the steel can baler given the Magistrate's findings that it was not in operation on the day charged, and did not require strapping of bales (Question 6 and the Additional Question, Grounds 5, 7 and the Additional Ground); and

(v) Failing to dismiss Charge 3 for duplicity (Question 7, Ground 8).

52 This is not the order in which the Questions and Grounds are listed in the Notice of Appeal and argued. However, it is to my mind an accurate summary and a logical way to proceed, moving from the broad to the more specific.

53 SKM submits that the Magistrate conflated the objects of the Act with the duty imposed by s 21, which was an error of law.

54 The Magistrate commenced her reasons with the statement:

This is an expert reliance case. The primary issue being the reliance that SKM Services Pty Ltd (SKM) placed on assurance certificates and assessments from the suppliers of balers, Rowland & Associates that they conformed to all necessary safety standards. That [sic] prosecution is required to prove beyond reasonable doubt that the reliance was not sufficient to discharge the accused company's obligation to do what was reasonably practicable to provide and maintain safe plant.[29]

55 SKM takes no issue with this statement. It formed part of the no case submissions put by the appellant, and also part of its closing submissions after the no case submission was refused.

56 The Magistrate went on to say, in the next paragraph:

More broadly however, SKM as an employer has a duty imposed on it by the Occupational Health and Safety Act 2004 (the Act) to, so far as is reasonably practicable:

1. secure the health, safety and welfare of employees and other persons at work;
2. to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work;

1. if it is not reasonably practicable to eliminate risk to health and safety then to reduce those risks so far as is reasonably practicable.

57 SKM does take issue with this statement. It submits that the Magistrate misdirected herself because the duty in issue in the case was the duty imposed by s 21, which is expressed in terms different to the Magistrate's summary above. Paragraphs (a) and (b) in the duty as she identified it in the portion of her reasons to which objection is taken do not appear in s 21 - instead they are the objects of the Act stipulated in s 2(1)(a) and (b). As a consequence of this error of law, SKM submits that the Magistrate imposed a higher duty on it than is in fact imposed by the Act.

58 The respondent submits that the statement to which objection is taken merely provided the context in which the legislature had imposed on the appellant the duty the subject of the charges. He identifies the origin of each of the paragraphs in the Magistrate's statement - s 2(1)(a) and (b) for sub-paragraphs (a) and (b) of the statement; and s 20(1)(b) for sub-paragraph (c) of the statement - in support of his submission that the statement is directed to the purpose for which the duty is imposed by s 21(1). He further submits that the Magistrate went on to correctly state and examine each of the elements of the particular offences charged. For this reason, so he submits, it is not the case that the Magistrate supplanted the offences charged with some more general concepts taken from the objects provision of the Act.

59 SKM also submits that the Magistrate erred in law by treating a principle stated in the Act as creating a duty.

60 On a number of occasions in her reasons, the Magistrate stated that SKM had a duty to be proactive in identifying and responding to risk in the workplace, which she also characterised as ongoing and non-delegable.[30] SKM submits that there is no such duty imposed on an employer by the OHS Act.

61 There is reference to being 'proactive' in s 4 of the Act, headed 'The principles of health and safety protection'. Sub-section 4(3) relevantly states that 'Employers ... should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces ...'. However, the duty is that specified in s 21 i.e. so far as is reasonably practicable, to provide and maintain a working environment that is safe and without risks to health. SKM submits that while the principles may inform the interpretation of the Act, they do not impose a legal duty on the appellant. SKM submits that the Magistrate thereby misdirected herself and imposed a higher duty on the appellant than is imposed by the Act.

62 Further, and in the alternative, SKM submits that the Magistrate treated the 'duty' to be proactive as something in addition to the acts or omissions specifically identified in the particulars to the Charges. The Magistrate specifically identified consideration of the operations manual at the time of commissioning (which related to internal strapping of bales, not the external strapping in fact utilised) and review of safety procedures and measures 'at some time in the 2 ½ years from the commissioning of the machines to the date of the incident in October 2014' as being 'essential to reduce an obvious risk'.[31] A failure to review the operations manual or safety procedures in the period since commissioning of the machines was not particularised as a breach. The particularised breach in respect of Charges 1 and 2 was failure to use engineering controls in the form of guarding. The particularised breach in respect of Charge 3 was failure to develop and implement a safe operating procedure of employees keeping a safe distance away from the front door of each baler.

63 The respondent submits that the Magistrate correctly identified the duty imposed by s 21, relying on her statement of the duty as follows:

Section 21 of the Act requires employers to provide for employees, so far as is reasonably practicable, a working environment that is safe and without risk to health - that duty is non delegable. Employers must take a proactive approach to safety in identifying and responding to risks in the workplace. Employers must provide a safe workplace even for hasty, careless, inattentive or unreasonable employees. The Act requires employers to adopt an active, imaginative and flexible approach to potential dangers. From time to time employers must search for and address hazards that may exist in the workplace. The degree of vigilance required in searching for hazards depends in part on the degree of harm that may result from those hazards. It is especially important that employers responsible for inherently dangerous workplaces search for and eliminate hazards.[32]

64 The respondent observes that this statement replicates almost precisely the words of the Bench Notes (as they were then) relating to the offence in the Judicial College Charge Book, as summarised in the model charge. The respondent submits that that fact alone stands against the submission that the Magistrate's statement of the duty was in error, and further submits that in any event each element she identified was correct.

65 It is unfortunate that the Magistrate in her reasons did not distinguish between the objects of the Act and the duty cast on an employer by s 21. Examination of the Act as a whole shows that it seeks to achieve its objects through a multi-pronged approach, not just by the imposition of duties on employers, breach of which is an offence. For example, Part 2 of the Act establishes the Victorian WorkCover Authority, which has the functions specified in s 7. Those functions include education, research and the making of policy recommendations. These functions are no doubt intended to help achieve the objects of the Act, but are entirely distinct from the duties cast on employers or the monitoring of employers. Similar observations can be made about other aspects of the Act, for example the licencing requirements (Part 6), the obligations on employers to consult with employees and to facilitate the creation of work groups who then elect health and safety representatives (Parts 4 and 7) and the powers of entry of representatives of registered employee organisations (Part 8). These various aspects of the Act all serve to implement its objects, in addition to the duties cast on employers.

66 For these reasons, I agree with the appellant that the Magistrate erred in law in the paragraph to which objection is taken by conflating the objects of the Act as a whole with the duty cast on an employer by s 21. The respondent submits that in this paragraph the Magistrate was merely stating the broader context of the duty imposed by s 21. I do not agree. Admittedly the Magistrate began that paragraph with a phrase suggesting broad context- 'More broadly however'- but she went on immediately to cast what follows as a duty on SKM as an employer. That was the error.

67 I am not, however, persuaded that the conflation of some of the objects of the Act as whole with the duty on an employer was a vitiating error. I do not believe that it materially affected the decision. I agree with the respondent that the Magistrate correctly stated the duty later in her Reasons in the portion in which she identified the elements of the charges. That portion reads as follows:

The elements of each charge which the prosecution must established [sic] beyond reasonable doubt are:

1. That the accused was an employer at the relevant time (conceded);
2. That there was a risk to safety in the working environment to employees [sic] health and safety;
3. That that [sic] the accused failed to take an identified measure which would have eliminated or reduced the risk;
4. That it was reasonably practicable in the circumstances for the employer to take that measure.[33]

68 These are the elements of the offence under s 21 as identified in Vibro-Pile.[34] Having correctly identified the elements in this way, the Magistrate then considered each element. Whether or not she did so correctly in law is a different issue, to be considered in relation to subsequent aspects of the appeal. For current purposes I do not consider that the appellant has shown any vitiating error in relation to the Magistrate's formulation of the duty. Her reference to the objects as forming part of the duty was unfortunate, but did not affect the correct formulation of the duty that she then considered.

69 It is inherent in this conclusion that I do not agree with the appellant that the Magistrate also erred by conflating the principle stated in s 4(3) ('employers ... should be proactive') with the duty cast on SKM by s 21. This is for two reasons. First, conceptually, the duty cast on an employer by s 21 is to avoid the risk of harm. The offences created by the Act are risk-based, not outcome-based, offences.[35] To avoid risk, one must be alert to the identification of risk, which conceptually requires a proactive approach.

70 Secondly, and critically, the observation by Harper J (as he then was) in Holmes that employers must take 'an active, imaginative and flexible approach to potential dangers in the knowledge that human frailty is an ever-present reality' requires in substance a proactive approach, even though that precise word does not there appear. That portion of the judgment has been approved on a number of occasions subsequently by the Appeal Division of this Court and then Court of Appeal.[36] The statement that the duty is non-delegable is also correct.[37]

71 Questions 5 and 8, and Grounds 6 and 9 in so far as they relate to the formulation of the duty fail.

Magistrate's conclusion in relation to breach of duty

72 Questions and Grounds 1, 2 and 4 all turn in substance on the Magistrate's statement that SKM had failed in its 'ongoing obligation to be proactive to ensure safety in the workplace'[38] notwithstanding that the Magistrate accepted that SKM had relied on the assurances given by Rowland that tunnel guarding was not required. SKM relies in particular on the following statements by the Magistrate in support of this argument:

• The need to carefully consider the operations manual at the time of commissioning;[39]
• The lapse of time between the installation of the machines and the injury to Mr La;[40]
• The need to review safety procedures and measures to reduce risk in that time;[41]
• The 'wealth of knowledge available to SKM' to assist it in meeting its ongoing obligation;[42] and
• The immediate and low cost installation of tunnel guarding after the injury. [43]

73 Appeal pursuant to s 272 is limited to appeal on a question of law. At first blush, it might be thought that SKM disagrees with the Magistrate's conclusion on the facts. SKM formulates these Questions and Grounds as errors of law in the following manner:

(i) Question 1 - the Magistrate reversed the onus of proof or drew an impermissible inference from the accused's silence;

(ii) Question 2 - the Magistrate erred by making a finding of fact that was contrary to uncontradicted, inherently reasonable evidence;

(iii) Question 4 - the Magistrate erred in determining the charges on a basis that had not been argued by the prosecution.

74 The nub of SKM's complaint is that the Magistrate's reasons appear to assume that it did not undertake continual review of risk when in fact there was unchallenged and uncontradicted evidence that it regularly engaged an expert, Roger Lim, to review plant across the business. In other words, there was evidence that SKM did review safety, and no evidence that it did not. The Magistrate referred to Mr Lim's report of 24 November 2011 as evidence that there was need for continual review of risk but Mr Lim himself was not called and there was no other evidence that he identified that the balers were not sufficiently guarded against hazards or risks. Similarly, the Magistrate did not identify any evidence that SKM had failed to consider the operation manual at the time of commissioning or in the period of time between commissioning and the injury to Mr La.

On a fair reading of Her Honour's reasons, the real criticism Her Honour had with the appellant was a perceived failure to take further unspecified measures during the time between when the machines were installed and the incident occurred. This was not a particular alleged against the appellant.[44]

76 The appellant submits in relation to Question 1 that the Magistrate reversed the onus of proof, by in substance requiring SKM to show what it had done by way of review of risk, and that what it had done was sufficient, whereas the burden was on the prosecution to show that whatever had been done was not sufficient. The prosecution did not call any evidence to this effect, and the only evidence it did call did not support this conclusion.

77 In relation to Question 2, SKM submits that the uncontested and unchallenged evidence was that the appellant had regularly engaged an expert to attend the workplace and review the plant, including the balers. This evidence was reasonable and probable, yet was disregarded by the Magistrate.

78 In relation to Question 4, SKM submits that neither the prosecution nor the Magistrate specified what measure SKM should have taken in relation to proactively review the plant. In short, the appellant was not informed by particulars of the act or omission the subject of the charges.

79 In response to Question 1, Question 2 in part, and Question 4, the respondent disputes that the Magistrate decided the case against the appellant on the basis of a failure to be proactive. The respondent submits the factors identified by the appellant as relied upon by the Magistrate (external rather than internal strapping; lapse of time; wealth of knowledge of risk; inexpensive installation of tunnel guards) were relevant to the Magistrate's conclusion that reliance on Rowland was not sufficient to discharge SKM's duty. The respondent also identifies in the Reasons reference to evidence of the risk to the knowledge of SKM and the fact that SKM had previously used tunnel guards.[45]

80 In response to Question 2, the respondent makes two further submissions. First, that the Question alleges an error of fact, not law. Secondly, that this finding of fact was not actually made. The respondent submits that in the passages that the appellant identifies, the Magistrate was describing the duty, not making findings of fact.[46]

81 On reading the Magistrate's reasons as a whole, I do not accept the central premise of the appellant's arguments on these Questions - that the Magistrate convicted the appellant on the basis of a failure to be proactive, constituted by a failure to take unspecified measures in the period of time between commissioning of the plant and the incident. On the contrary, I accept the submission of the respondent that the Magistrate directed her attention to identified measures, being tunnel guarding and an operational procedure that applied to external strapping. I reach this conclusion for the following reasons.

82 First, as discussed earlier, I do not consider that the Magistrate erred in describing the duty imposed on SKM as an ongoing obligation to be proactive.

83 Next, the references to that duty relied on by SKM under these Grounds appear in a paragraph of the Reasons under the heading 'Reasonably practicable to take an identified measure', as opposed to an earlier section of the Reasons headed 'Failure to take an identified measure which would have eliminated or reduced the risk'. While it is not entirely clear, a fair reading of the paragraph is that it is directed to the element of reasonable practicability. The third and fourth dot points to the paragraph support this reading, as they are plainly directed to such questions. In other words, on this reading the Magistrate was emphasising in this paragraph that SKM could not simply rest on assurances from Rowland.

84 This reading is further supported by the first paragraph under that heading, in which the Magistrate states that reliance on Rowland's expertise, assurances and risk assessments was not reasonable in the circumstances and it was reasonably practicable to take the identified measures of fitting tunnel guards and to document and implement a safe working procedure for external strapping of bales. On this reading, the references to the ongoing duty to be proactive are intended to illuminate the conclusion that reliance on Rowland alone was not reasonable.

85 This reading is also supported by the fact that the Magistrate did exhaustively, and as noted earlier correctly, express the duty in the paragraph beginning 'Section 21 of the Act' under a preceding heading in the Reasons, 'Failure to take an identified measure which would have eliminated or reduced the risk'.

86 Another possible reading of the paragraph containing the references to the ongoing duty to be proactive is that it was intended to be by way of conclusion, in respect of all elements of the charges. This would give substantive, and not just contextual, content to the reference to the obligation to be proactive contained in the second and fifth dot points. Viewed in that light, the reference to 'wealth of knowledge', for example, was a reference to evidence referred to earlier in the reasons. One aspect of that earlier evidence was that the operations manual assumed the internal strapping of bales, whereas SKM had adopted a procedure of strapping bales external to the machines.[47] Another aspect was the evidence of employees that the Magistrate stated 'suggested that management was put on notice about the risks inherent with work done in close proximity to these balers, specifically their exit points'.[48] The respondent identifies in his submissions evidence to this effect.[49] Other relevant aspects of the evidence was the inclusion in Mr Lim's report of 24 November 2011 of the need for continual review of risk assessment[50] and the various publications available to SKM that informed it that compliance with a technical standard may not be sufficient.[51]

87 All of these matters give content to the statement by the Magistrate to which the appellant takes objection that:

(c)areful consideration of the operation manual at the time of commissioning and upon reviewing safety procedures and measures to reduce risk in a high risk environment at some time in the 21/2 years from the commissioning of the machines to the date of the incident in October 2014 was essential to reduce an obvious risk.[52]

88 I do not consider it correct to interpret this statement as the Magistrate convicting the appellant for failure to take unspecified measures by way of ongoing review of the machines. It is correct that the act or omission which is said to amount to a contravention of s 21 must be identified in the charge.[53] This means that the measure which it is said an employer should have taken to reduce the risk to health or safety must be identified. Here, the measure that should have been taken was identified in Charges 1 and 2 as the installation of tunnel guarding. The appellant was not charged with failure to review safety (which could have been a charge under s 22) but nor did the Magistrate convict on this basis. I agree with the respondent that the fair reading of the Magistrate's Reasons is that her reference to a failure to review safety procedures and measures was to show that she considered the prosecution had established the elements of the offences beyond reasonable doubt, notwithstanding SKM's reliance on the assurances by Rowland. It was not because she considered the relevant omission to be a failure to review safety.

89 In relation to Question 2, I also accept the respondent's submission in relation to Ms Bottrell's evidence. Ms Bottrell, the OH&S consultant for SKM at the relevant time, testified that although SKM regularly engaged Mr Lim to review plant, he was not requested to conduct a risk assessment in respect of the balers. SKM relied on the risk assessment and information provided by the supplier.[54] Viewed in this light, the fact that there was evidence that SKM had commissioned safety reviews was only one piece of the whole of the evidence. It follows that it is not correct to assert that failure to act on this evidence alone was an error of law.

90 For these reasons, Questions 1, 2 and 4 and Grounds 1, 2 and 4 fail.

91 While I do not consider that the Magistrate erred in the way asserted by SKM in the Questions and Grounds considered above, I do agree with SKM that she erred in relation to the element of reasonable practicability. SKM asserts this error appears in the fourth paragraph on p 5 of the Magistrate's Reasons which is as follows (emphasis in italics added):

I do not accept that SKMs [sic] reliance on Rowland was sufficient to discharge its obligations pursuant to the Act. I am satisfied beyond reasonable doubt that SKM could have forseen the identified risk and implemented the engineering controls in the form of tunnel guarding on both the aluminium and steel can balers. SKM had previously controlled similar risks on similar plant using tunnel guards. Evidence from employees of SKM suggested that management were put on notice about the risks inherent with work done in close proximity to these balers, specifically their exit points.

92 This extract appears in the portion of the Reasons headed 'Reliance on Rowland'. I noted earlier that depending on the circumstances, expert reliance may conceivably be relevant to any or all of the elements of the offence. The portion of the Reasons to which SKM takes objection under Question and Ground 3 relates to the third element of what must be considered in relation to determining whether the installation of tunnel guarding and an operating procedure specifically for external baling was reasonably practicable. This third element is actual or constructive knowledge. It is stipulated in s 20(2)(c) as follows:

20 The concept of ensuring health and safety

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety -

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

93 It is plain that s 20(2)(c) requires the court to consider what the employer 'ought' to have known about the risk and ways of eliminating or reducing it, not, as the Magistrate states, what it could have known. Similarly, the prosecution is required to establish what the employer should have done, not what it could have done. The time at which these matters must be considered is the time of the alleged contravention, here 24 October 2014.

94 The respondent concedes that by her use of the word 'could' instead of 'should', the Magistrate misstated the test[55]. He submits, however, that it is not a vitiating error for three reasons. First, the respondent submits that the two matters to which the Magistrate referred in the immediately following two sentences after her use of the word 'could' (in the portion of the Reasons to which SKM takes objection quoted above) show that she was referring to matters within the actual or constructive knowledge of SKM.

95 Secondly, the respondent submits that there was an independent basis on which the Magistrate reached her conclusion. The independent basis on which he relies is the Magistrate's reliance on the evidence of Inspector Taylor, as set out in this paragraph in her Reasons:

In relation to charges one and two, I again rely on the evidence of Andrew Taylor, that a reasonably practicable measure that would have eliminated or reduced the risk associated with the balers as outlined above was the implementation of engineering controls in the form of tunnel guards which prevented access to the danger area at the bale discharge point.[56]

96 Thirdly, the respondent submits that the Magistrate correctly stated the test elsewhere in her Reasons, in support of his submission that she applied the correct test to the defence case. There are at least two such instances, as follows.

97 In the introductory portion of the Reasons, in the paragraph beginning '(i)n determining what is reasonably practicable at the relevant time', the Magistrate correctly stated that she must have regard, amongst other matters, to 'what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk'.[57]

98 Further, the Magistrate summarised the defence case in these words (emphasis in italics added):

The defence case is put on the basis that SKM's reliance on certain oral and documentary representations or assurances from the supplier of plant meant that it could not be concluded beyond reasonable doubt that a reasonable employer in the accused's position would have forseen the identified risk and the ways of reducing that risk. The test for reasonable foreseeability is objective and the evidentiary burden is on the prosecution.[58]

99 The respondent submits that for these reasons, even if read fairly and in full the passage to which SKM takes objection is an error of law, it is not a vitiating error.

100 I consider it clear that the Magistrate misstated the test for reasonable practicability by using the word 'could' instead of 'should' in the paragraph on which SKM relies. The real issue is whether this is a vitiating error.

101 I have given this anxious consideration. The first matter to clarify is whether the conclusion to which objection is taken was intended by the Magistrate to refer to Charges 1 and 2 only, or Charge 3 as well. I conclude that the references to 'tunnel guarding' and SKM's previous use of 'tunnel guards' shows that it was intended to relate to Charges 1 and 2, not Charge 3 which related to a system of work for external baling. This conclusion is supported by the fact that the Magistrate specifically refers to Charge 3 in separate paragraphs. Thus, if the Magistrate's error in misstating the test is a vitiating error, it relates to Charges 1 and 2, not Charge 3.

102 I accept the respondent's submission that the two matters of fact identified in the balance of the paragraph to which SKM take objection do relate to actual or constructive knowledge, and so what SKM should have foreseen, and should have done, as at 24 October 2014. In that regard, I accept that while the word 'suggested' is not entirely unambiguous, on a reading that is reasonably open the Magistrate accepted that evidence and intended to make a finding to that effect. The references to these matters are brief however, and there is no detailed analysis of how they intersect with the assurance from Rowland that tunnel guards were not required because of the safety pressure switch. In particular, why SKM should have foreseen a risk of injury and installed tunnel guards when it had been told they were not required.[59]

103 This generality is repeated in the Magistrate's references to what SKM should have done in the immediately following paragraph, which is as follows:

The plant the subject of these proceedings was commissioned in March 2012. SKM had an ongoing duty to be proactive in identifying and responding to risks in the workplace. These being high risk machines, SKM had a duty to be vigilant and actively search for and eliminate hazards.

104 The three further matters identified are the lapse of time, the ongoing duty and the fact that the balers were high risk machines. There is, however, no specificity as to how these matters outweigh the assurances previously given that tunnel guarding was not required due to the safety pressure switch.

105 In contrast to this generality is the specificity of the next paragraph, which reads:

Within a day of the injury to Gavin La SKM installed tunnel guard on both balers at a cost of around $1000 with no detriment to the task.

106 The absence of detailed engagement with the evidence as to what SKM should have foreseen and done before the injury, and this contrast of the specific (what happened after the injury) with the general (what SKM could or should have foreseen and done before the injury) supports an inference that the Magistrate impermissibly reasoned backward from what had happened, and how readily it could, in hindsight be guarded against, rather than examining the question on the basis of what SKM should have foreseen prior to the injury. This in turn led her into the error of applying the wrong test of reasonable practicability.

107 I accept that in other portions of her Reasons, the Magistrate correctly stated the test. However, I consider that the best way to assess whether the wrong test has been applied is to analyse how it has been applied to the facts of the particular case, as opposed to being stated as a matter of general principle, or (at the next level of specificity) as a summary of a party's case. On my analysis of her application of the test to the facts, the Magistrate applied the wrong test.

108 I am fortified in this conclusion by the fact that the Magistrate incorrectly stated the test, as applied to the facts, on at least one further occasion in her Reasons. In the final dot point on the last page of her Reasons she states '(t)he risk to safety ... could reasonably practicably been further reduced through the additional safety measures identified ...'. As discussed earlier, there are two possible readings of the paragraph in which this dot point and others appears - either as relating to reasonable practicability, or as a summary of the Magistrate's conclusions on each element of the offences. On either reading, she repeats the misstatement of the test for reasonable practicability.

109 For these reasons, I do not accept the respondent's submission that the Magistrate's incorrect reference to what SKM could have foreseen and done, in the specific passage to which SKM takes objection, is outweighed by other indications that she applied the correct test, being what SKM should have foreseen and done.

110 Finally, I do not accept the initial submission by the respondent that the error is not a vitiating one because there was an independent basis, being the Magistrate's acceptance of Inspector Taylor's evidence, for her conclusion. First, the test is not whether the conviction could be sustained on that basis, but whether the Court can say that the same result would have been arrived at irrespective of the error. I do not consider that the same result would necessarily have been arrived at, given that the Magistrate's error relates to the test as to foreseeability. This is because the portion of her Reasons on which the respondent relies in this regard appears under the heading 'Failure to take an identified measure which would have eliminated the risk' and her reliance on Inspector Taylor's evidence relates to that issue, not foreseeability, which is where the error appears on the next page of her Reasons, under the heading 'Reliance on Rowland'.

111 I consider that SKM has established Ground 3 as a vitiating error of law in relation to Charges 1 and 2. I will hear the parties further as to what relief I should order, and in particular whether the Charges should be quashed, or one or both remitted for fresh hearing.

112 By Question 6 and Grounds 5 and 7, SKM submits that the Magistrate erred in convicting it of Charges 2 and 3 in relation to the steel can baler because there was no evidence that that baler was in operation on the day the subject of the Charges, and the Magistrate accepted that external strapping of bales was not required for that baler. SKM also attacks its conviction on Charges 2 and 3 in relation to the steel can baler by the Additional Question and Ground, which assert that the convictions were irrational, illogical or unreasonable in the legal sense.

113 Charges 2 and 3 both allege contraventions of s 21 of the OHS Act 'on or about 24 October 2014'. Particular 5 to Charge 2 specifies that it relates to the steel can baler. Particulars 8 and 9 to Charge 2 respectively specify that SKM employees were 'tasked' with strapping bales outside of the steel can baler, posing the risk of injury by performing this task in close proximity to the exit point of the baler. Charge 3 alleges a contravention of s 21 'on or about 24 October 2014' by virtue of the absence of a safe operating procedure for external strapping in respect of both balers. Particular 5 to Charge 3 specifies that SKM employees were 'tasked' with strapping the bales outside of the balers, and Particular 6 that this created a risk due to performing this task in close proximity to the exit point of the baler. SKM submits that it follows that the alleged contraventions in relation to plant (Charge 2) and system of work (Charge 3) as they applied to the steel can baler arose from risks associated with strapping bales outside the baler on or about 24 October 2014. This risk was not present if the baler was not in operation on or about that day, or bales were not externally strapped.

114 The Magistrate accepted that the steel can baler was not in operation on 24 October 2014. She also accepted that the steel can baler 'does not require the strapping function that aluminium does'. Nevertheless she concluded:

The fact that the steel can baler was not in operation on the day in question, or that it was used to bale steel which does not require the strapping function that aluminium does, does not satisfy me that it did not pose a risk to operator safety.[60]

115 In addition to alleging error of law for want of evidence, or by reason of irrationality or illogicality, SKM submits that this passage shows that the Magistrate erred by reversing the onus of proof.

116 The respondent directs me to evidence which he claims does support the convictions of Charges 2 and 3 in relation to the steel can baler. He also seeks to draw a distinction between the offences as charged and particularised (that employees were 'tasked' with external strapping) and the Magistrate's finding that this was not 'required'. Finally, the respondent submits that the paragraph in which SKM alleges error was intended to be directed to the defence case, and directs me to the immediately following paragraph in the Reasons, which correctly sets out the onus of proof.[61]

117 I turn first to the question of evidence relating to when the steel can baler was in operation. The respondent submits that because the charge alleged a risk 'on or about 24 October 2014' it is sufficient to dispose of this aspect of the attack on the convictions in relation to the steel can baler if there was any evidence, even if thin, that it was in operation in the month of October 2014. The prosecution relies on evidence from Inspector Taylor, Mr La, another worker Mr Kyeremeh, and the operations manager Mr Bunting in that regard.

118 Dealing first with the evidence from Inspector Taylor, the prosecution relied on his report, based on his site visits on 24 October 2014 and 21 April 2015. In that report, Inspector Taylor states:

At the time of the visit, the steel balers guard at the sides and above the discharge door had completely broken and collapsed onto the last bale that had exited the machine. Site representatives explained that this machine was out of action.[62]

119 The respondent submits that Inspector Taylor does not say on which of his visits he was told the steel can baler was 'out of action', and, even if this was on 24 October 2014, his observation does not exclude the possibility that the steel can baler was operating earlier in the day on 24 October 2014. It is correct that Inspector Taylor does not say on which visit he was told that the machine was out of action, but in the context of his report I infer that it was on his visit on 24 October 2014. In particular, he supports the comments he makes about the aluminium baler with photographs taken on that day. It is also strictly correct that his report does not exclude the possibility that the steel can baler was operating earlier on that day, or some proximate time. In my view a possibility on the evidence is not enough. The prosecution charged that the contravention occurred 'on or about' that day. In my view this at least required evidence that the machine was operable on that day, or proximate to that day.

120 Before I discuss the respondent's submissions on the evidence further, I say evidence was required that the machine was operable on or about 24 October 2014, as opposed to being actually in operation on that day. As the respondent submits, in Chugg v Pacific Dunlop, the Appeal Division of this Court upheld the finding of a magistrate that a portion of a machine was 'dangerous' within the meaning of the regulations made under the then Act, even though the machine was not in operation on the day charged.[63] The High Court revoked special leave to challenge the correctness of that determination, but, as SKM identifies, did so on the basis that it was foreseeable that the machine might be tested on that day.[64] In short, in that case the machine in question could be operated on the relevant day, as opposed to what Inspector Taylor was told about the steel can baler.

121 I now return to the respondent's submission that there was evidence that the steel can baler operated (or was operable) at some point on 24 October 2014 or in the month of October. The respondent relies in this regard on some brief evidence given by Mr La. Mr La said in chief that on 24 October 2014 he 'have to look after all the baler', and elaborated this as referring to one steel baler, one aluminium baler, and one cardboard baler. Further, in answer to the question 'Did the steel baler work in any different way than how you've described the aluminium baler' he answered 'Exactly the same with the aluminium, yeah'. When asked to confirm that he was working with the aluminium baler on 24 October (2014), he said 'At that time, yeah'. [65] I do not consider this to be evidence that Mr La was operating the steel can baler on 24 October 2014 prior to Inspector Taylor's visit. It is not directed to that precise issue, and is capable of a different meaning.

122 Mr Kyeremeh gave evidence that 'in October 2014' he worked for SKM on the 'steel baler and the aluminium baler'.[66] He was not asked whether the steel can baler was in operation at any time on 24 October 2014 or when it was last in operation. Again, this is not evidence as to when the steel can baler was last in operation, or operable, prior to its state on inspection by Inspector Taylor.

123 Mr Bunting gave evidence that 'in October 2014' he was operations manager and at that time there was both an aluminium and a steel baler.[67] Again, he was not asked whether the steel can baler was in operation at all, or operable, on 24 October 2014 or when it was last in operation.

124 In my view, the evidence to which the respondent points is not evidence that the steel can baler was operable at some point in October 2014. None of the evidence on which the respondent relies is directed to ascertaining when the baler was last in operation, and the questions asked of the witnesses were general, and not directed to this issue.

125 Further, I have real doubt as to whether a charge that alleges an offence 'on or about' a particular date in a month can fairly be construed as relating to any date in that month. SKM did not speak against this submission and neither party directed me to any authority on the point, but there is authority that 'on or about' means 'approximately near the date stated'.[68] That case, a decision of the English Court of Appeal, was applied by the Queensland Court of Appeal in Deever v Creevey; Ex parte Creevey[69] in supporting a conviction for an offence 'on or about 4 January' in respect of which a critical element of the offence occurred on 3 January. As to what the outer bounds of 'on or about' may be, in Blackett v Clutterbuck Brothers (Adelaide) Ltd,[70] the then South Australian Chief Justice held in a civil case that 'a day or two on either side or perhaps three ... would ... be the most that could reasonably be held to be covered by the expression.'[71]

126 I turn now to evidence relating to the strapping of bales ejected from the steel can baler. The respondent submits that Inspector Taylor's report contains evidence that bales ejected from the steel can baler were strapped, in addition to bales ejected from the aluminium baler. The argument is a complicated one. It depends on reading into the description of process that Inspector Taylor gives at p 5 of his report the only difference he identifies between the two balers later in his report at p 9, being that a 'pair of steel beams or skids/ramp' extends from the exit door of the aluminium baler, but in the case of the steel can baler the bales drop directly onto the concrete floor.[72] On this basis, the respondent submits that the reference in the process section to 'the bale located on ground level or on the steel beams' being manually strapped is evidence that bales ejected from the steel can baler were also strapped.

127 In my view, this is not unequivocal evidence of strapping of bales from both balers. In the immediately preceding paragraph Inspector Taylor describes a bale exiting onto 'a pair of steel beams/ramp' from the exit door. He is plainly talking there about the aluminium baler. To read the next paragraph as relating to both balers is a possible reading, but hardly the only, or a plain, reading.

128 The respondent also relies on Mr La's evidence that the aluminium and steel can baler operated the same way in relation to strapping. I do not consider Mr La's evidence supports the submission that bales from the steel can baler were strapped. To the contrary. After the questions and answers I noted earlier, Mr La volunteered evidence to the effect that bales ejected from the steel can baler, as opposed to bales ejected from the aluminium baler, were not strapped. Perhaps in continuing answer to the earlier question about whether the steel baler worked in any different way to the aluminium baler, he said:

It depends. If you see the steel coming out...the steel come - the steel baler coming out you have to pick it up and take it to the steel bin outside the - the area. And if you see the aluminium push it out then you need to tie it up.[73]

129 In other words, Mr La's evidence is that bales from the steel can baler are not strapped.

130 The respondent further submits that there was evidence from Mr Peter Tame, SKM's maintenance manager, and a supervisor, Mr Simon Raschilla, that external strapping was used for the steel can baler as well as the aluminium baler. In the portion of his evidence in chief on which the respondent relies, Mr Tame was asked about the purpose and features of both balers. He replied that 'They compact all loose product of steel and aluminium and put it in a transportable block'. He was then asked: 'Once it's in that transportable block is there any further process that has to be undertaken in relation to those...?' and he replied (emphasis in italics added):

With the aluminium it's a requirement for it to be strapped so the bales don't fall apart.[74]

131 Three questions later he was asked 'How is that strapping achieved in relation to specifically that aluminium machine and the identical steel one?' to which he replied giving details in general terms, without distinguishing between aluminium or steel. In answer to a subsequent question about other ways to strap 'when you were using these particular balers' he replied that the balers can use a wire strap that is commonly used for plastic, adding 'Very rarely used in aluminium and steel but it can be used'.[75]

132 The respondent contends that this is evidence that external strapping was used for the steel can baler, as well as the aluminium baler. In my view, that is not at all clear. Mr Tame himself identified the additional process of strapping only in relation to the aluminium baler. The questions put to him were about both balers, and he did not distinguish between them in his answers, but that should be read subject to his initial evidence that the process of strapping was required in relation to the aluminium baler.

133 The respondent also relies on evidence given by a former employee of SKM, Mr Simon Raschilla. Mr Raschilla was asked in chief in relation to both the aluminium and the steel can balers 'What had to occur with the bale after it had been pushed out...?' to which he replied:

Well, the bale would be strapped. At certain times with - I'll clarify. With the aluminium baler that would always have to be strapped with a metal strap. (He then described the process.) that's what would occur with the aluminium baler, sorry. The steel baler, that happened at various times as well but predominantly with the aluminium baler.[76]

134 Mr Raschilla also gave evidence in chief that he had a concern about strapping of bales in proximity to the baler door. In cross‑examination he was asked if that concern applied to both the aluminium and the steel can baler, and he replied 'At various times it did'.[77]

135 I accept that this is evidence that on occasion during Mr Raschilla's employment with SKM bales from the steel can baler were externally strapped. His evidence is that he stopped working for SKM in 'mid 2014'. While he does not say whether or not this was earlier than 24 October 2014, in usual parlance 'mid 2014' would be interpreted as well before October 2014. Accordingly, Mr Raschilla's evidence does not directly support a finding, had the Magistrate made it, that employees were 'tasked' with externally strapping bales from the steel can baler close to the exit door on or about 24 October 2014.

136 In summary, I accept that there was some evidence, from Mr Raschilla, that bales from the steel can baler were on occasion strapped. That evidence relates, however, to a period before October 2014, even if Charges 2 and 3 can apply to the whole of that month. I do not consider that the other evidence on which the respondent relies to defeat the no evidence allegation in respect of strapping and risk (i.e. the steel can baler being operable) 'on or about 24 October 2014' is properly regarded as evidence of those matters on which the Magistrate could convict. I accept the submission from SKM that in these circumstances there was no evidence on which the Magistrate could convict SKM on Charges 2 and 3 in respect of the steel can baler.

137 The fundamental difficulty with the respondent's submissions on this Question and related Grounds is that the Magistrate did not make the findings the respondent contends were open to her on this evidence. Quite the contrary. She found that the steel can baler was not operating on 24 October 2014 and made no finding as to when it was last operating, or operable. I accept the submission by SKM that the respondent's submission that the steel can baler was operating at some relevant point is entirely speculative.[78] Further, the Magistrate found that it did not require external strapping of bales.

138 The respondent seeks to draw a distinction between the Magistrate's finding that strapping was not 'required' for the steel can baler, and whether or not it was ever 'performed' or 'occurs'.[79] If ever performed, then the respondent submits this is sufficient to show that employees were 'tasked' with that activity, and accordingly it cannot be said that there is no evidence to support Charges 2 and 3 in relation to the steel can baler. In my view, this is to draw too fine a distinction between an employee being 'tasked' to strap bales from the steel can baler, and the Magistrate's finding that external strapping was not 'required'. I consider that the meaning is substantially the same whichever word is used.

139 Given her findings, I accept that the Magistrate erred in law by concluding that despite her findings Charges 2 and 3 were made out in respect of the steel can baler. Further, she erred by reversing the onus of proof. It was for the prosecution to prove the particularised risks, not for SKM to disprove them. I do not accept the respondent's submission that the Magistrate's correct reference to the onus of proof in the paragraph immediately following the impugned paragraph shows that in that impugned paragraph she was referring only to the defence case, not the ultimate onus.

140 For these reasons, SKM has made out Question 6 and related Grounds 5 and 7 in relation to Charges 2 and 3 as they apply to the steel can baler.

141 Given this conclusion, it is not necessary for me to determine the Additional Question and Additional Ground.

142 By Question 7 and Ground 8 SKM contends that the Magistrate erred by failing to dismiss Charge 3 for duplicity. A charge is duplicitous if it relates to more than one offence.

143 SKM submitted that the Charge was bad for duplicity in both its no case submissions, and its final submissions. It submits that the prosecution did not make any election in respect of the Charge, or seek to split it. The respondent disputes the accuracy of this statement. It is, however, undisputed that the Magistrate did not respond to the duplicity submissions in either her reasons on the no case submission,[80] or in her final reasons for conviction.

144 The nub of SKM's case on this issue is that Charge 3 purported to apply to both balers in charging a risk relating to 'performing the task of strapping the bales of waste in close proximity to the exit point of the balers'. As discussed above, however, the Magistrate found that external strapping was not required in relation to the steel can baler. She also found that the steel can baler was not operating on 24 October 2014. Given those findings, SKM submits that the circumstances pertaining to each baler were different, and so Charge 3 is duplicitous, and not saved by s 33(2) of the Act.

145 In response, the respondent submits that the Charge alleged a single omission, being the failure to have a safe operating procedure for a particular task. That allegation does not become an allegation of multiple offences merely because it applied to more than one machine, and so is not duplicitous. If this is incorrect, and the Charge did allege more than one offence, then the respondent submits that it is saved by s 33(2).

146 The respondent also submits that SKM is prevented from raising this issue now, as it did not do so before the end of the prosecution case. In that regard, the respondent relies on the comment in Vibro-Pile, that a challenge to particulars, in that case that the charge was bad in law and should be struck out as it did not identify an offence, should be raised before the trial.[81] The respondent notes that not only did SKM not give the prosecution the opportunity to elect before leading its evidence, in its no case submissions put to the Magistrate SKM submitted that it was now too late for the prosecution to elect.[82]

147 I deal with that submission first. It would undoubtedly have been better for SKM to put the prosecution squarely on notice at an early stage of its contention that Charge 3 was bad for duplicity. SKM submits, however, that neither Vibro-Pile, nor the more recent Court of Appeal decision of Downer EDI Works Pty Ltd v R[83] ('Downer') on which the respondent also relies apply.

148 I do not consider that to be correct. Both Vibro-Pile and Downer relate to contentions that a charge is invalid for legal reasons, irrespective of the evidence. That is the nature of a duplicity allegation. However, the more emphatic statement by the Court of Appeal that these contentions should be raised before the trial appears in Downer, which was handed down after the prosecution evidence had closed and the no case submission put in this case. According to the discussion in Downer, it was until then a widespread view, at least amongst defence counsel, that it was appropriate for such a contention not to be put until after the prosecution case had closed.[84] I do not consider that SKM should fail now by reason of that avenue having been closed only after the event.

149 Further, I was not directed by the respondent to any limitation period or other reason why the prosecution could not have sought an opportunity to amend in response to SKM's no case submissions. Nor why the Magistrate, had she accepted the submission in her reasons for rejecting SKM's no case submission, could not have given this opportunity to the prosecution at that stage. For those reasons, I do not consider it fatal that SKM did not put the prosecution to an election before its case closed.

150 The next question is whether the Charge alleges more than one offence, and so would be bad for duplicity if not saved by s 33(2). In my view, the Charge is on examination duplicitous on its face, but if I am incorrect in that conclusion, I do not consider the conviction can stand having regard to the Magistrate's findings in relation to the operation of the steel can baler in any event.

151 Dealing first with duplicity, the Charge is confined to that part of paragraph (a) to s 21(2) relating to system of work, and only alleges one failure in respect of system of work. In that respect, it differs from charges found to be duplicitous in other cases.

152 As discussed earlier, in Chugg v Pacific Dunlop,[85] a charge that alleged contravention of the precursor to s 21(1) by both a failure to provide safe plant and safe system of work (paragraph (a)) and a failure to provide information, instruction and supervision (paragraph (e)), and particularised a total of five separate failures, two in respect of paragraph (a) and three in respect of paragraph (e), was held to be duplicitous. In Vibro-Pile,[86] the Court was critical of a charge that relied on only one paragraph within s 21(2) (s 21(2)(e)), but alleged three distinct breaches of that paragraph. Here, Charge 3 relies on only one paragraph to s 21(2), and only one allegation in respect of that paragraph.

153 However, allegations relating to multiple paragraphs, or multiple distinct failures within a paragraph, are not in my view the only way in which a charge may allege more than one offence. I accept the respondent's submission that the fact that the charge may apply to more than one machine does not necessarily make it duplicitous, but I consider that it may do so unless the machines are identical, or at least substantially the same, in operation and system of work. This is because the risk may be different, and different issues of reasonable practicability may arise if there are substantial differences between the machines or the way they are used. Both risk and what was reasonably practicable for the employer to do to avoid or minimise a risk to safety or health at the relevant time are key elements of a contravention of s 21(1). Accordingly, if these elements differ depending on which machine is under consideration, then separate charges should be laid.

154 In relation to risk, Charge 3 alleges the same risk in respect of both the aluminium and steel can baler, being that alleged in Particular 6 (emphasis in italics added):

The risk that employees operating the balers were exposed to was a risk of death or serious injury from a crushing or shearing injury by performing the task of strapping the bales of waste in close proximity to the exit point of the balers, with access to the chamber at the exit point when the door was open and it was not controlled or restricted.

155 As set out earlier, the Magistrate accepted that strapping was not required in respect of the steel can baler, and at the highest I consider (based on the evidence to which I was taken) that there was only limited evidence that steel bales were strapped on occasion, and that only until mid-2014. For these reasons, the risk was not the same. Had the charged risk been limited to the possibility of coming into contact with the chamber, and not depended on strapping of bales, it may have been sufficiently the same for each baler.

156 The same difficulty arises in respect of the failure alleged by Particular 8 ( failure to provide safe systems of work associated with the task of external strapping of bales). The measure that it is alleged by Particular 9 was reasonably practicable (employees keeping a safe distance away from the front door of the baler) could have applied to each baler, were it not limited by its internal reference to 'the risks associated with the task', which was defined to be strapping the bales outside of the balers.

157 In relation to what was 'reasonably practicable' to eliminate or reduce 'the risk' for the purposes of Charge 3, the Magistrate was required by s 20(2) to consider five factors. One of those factors shows, in my view, that different issues arose in respect of the steel can baler, as opposed to the aluminium baler. Section 20(2)(a) provides that a court must take into account 'the likelihood of the hazard or risk concerned eventuating'. The likelihood of a risk of injury from coming into contact with the door or platen of either baler occurring may depend on the frequency with which workers were exposed to close proximity to the exit point of the bale, in particular whether bales were strapped or not, and how frequently. This element of 'reasonable practicability' also shows Charge 3 to be duplicitous. For these reasons, I consider that the Magistrate erred in not accepting the no case submission that Charge 3 should be dismissed for duplicity.

158 The next question is whether Charge 3 is saved by s 33(2). That sub-section allows two or more contraventions to be charged as a single offence 'if they arise out of the same factual circumstances'. In Vibro-Pile, the Court of Appeal observed held that the section would not save a charge that was otherwise duplicitous because the various alleged contraventions raised different issues of reasonable practicability. As discussed above, on the Magistrate's findings, I consider the same applies here.

159 For these reasons, I consider that SKM has established that the Magistrate erred in failing to dismiss Charge 3 as duplicitous.

160 It is, however, correct that, as the respondent submits, duplicity is a matter of form, not evidence. By contrast, the evidence when adduced may reveal a latent ambiguity. SKM in reply appeared to accept that this was its real complaint.[87] If my conclusion that Charge 3 was duplicitous on its face is incorrect, because the distinctions between the balers was only revealed in the evidence, then it is necessary to consider whether nevertheless the conviction on Charge 3 should be quashed given the Magistrate's findings in relation to the steel can baler.

161 The difference between a defect of form and one of evidence is discussed in R v Greenfield a conspiracy case.[88] The Court of Appeal there held that '(d)uplicity is a matter of form; it is not a matter relating to the evidence called in support of the count'.[89] The Court then illustrated the difference by contrasting conspiracy cases. In the cases it discussed where the charge itself revealed multiple conspiracies, it was bad for duplicity. In the contrasting case, where the charge alleged one conspiracy involving multiple accused, but the evidence failed to prove that all had conspired together for the claimed purpose, the charge failed but not because of duplicity. In the conspiracy case then before them, the Court concluded:

A charge which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the defendants being a member of a conspiracy other than the one charged. Such evidence may make it impossible for the prosecution to establish the existence of the conspiracy charged....In such a situation the trial judge should rule that there is no case to answer. But if at the end of the prosecution's case there is evidence on which, if uncontradicted, a reasonably minded jury could convict the defendants, or two or more of them, of the conspiracy charged despite evidence of the existence of another conspiracy, then the trial judge should let the case go to the jury.[90]

162 Applying that analysis here, if the prosecution relies on one charge only for both machines, alleging that the same risk and the same reasonably practicable measure that should have been adopted applies to both machines, then is it the case that that charge may fail on the evidence, although not for duplicity, if the evidence does not support it in respect of one? I put this scenario to the respondent in argument, and counsel responded that the conviction could still stand if the evidence supported it in respect of either baler.[91] He relied on analogy with a charge of obtaining a financial advantage by deception which alleges multiple instances of deceit, submitting that if the prosecution establishes any one of those instances that is sufficient to support the charge. That may be correct. This difference in this case is that Charge 3 does not separately particularise the central allegation relating to the absence of a safe system of work in respect of each baler. It does not differentiate between them, yet the evidence shows the risk and what was reasonably practicable to eliminate or minimise the risk to be different.

163 On that analysis, I consider that even if Charge 3 is not properly described as bad for duplicity, and not saved by s 33(2), the conviction should be quashed as there is no evidence to support it in respect of the steel can baler.

164 SKM as appellant has established vitiating errors of law in relation to Charge 3 (failure to dismiss for duplicity); Charges 2 and 3 in relation to the steel can baler (no evidence to support the convictions); and Charges 1 and 2 (incorrect test as to reasonable practicability). I ask the parties to confer in relation to what relief should be ordered to give effect to these conclusions, and costs, and draw appropriate orders. I will hear them further if they are unable to agree.

[1] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-17.

[4] Ibid, exhibit SMB-4, Magistrates' Court written reasons, 5.

[9] Ibid, exhibit SMB-3, Transcript of proceeding, Magistrates' Court of Victoria, 23 June 2017.

[12] [2016] VSCA 55; (2016) 49 VR 676 ('Vibro-Pile').

[13] Vibro-Pile, ibid [3], [6] (citations omitted).

[14] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249.

[15] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-4, 7.

[16] (1992) 5 VIR 119.

[18] [1988] VicRp 49; [1988] VR 411.

[19] [1999] 3 VR 834, 842-843.

[20] Chris Maxwell, Occupational Health and Safety Act Review, March 2004 ('Maxwell Review').

[21] Maxwell Review, 382 [1854]-[1855], cited in Vibro-Pile [140].

[22] Vibro-Pile (n 12) [135]-[142].

[23] Ibid [143]-[145]. It does not appear that the charge in that case was attacked on the ground of duplicity. It was attacked on other grounds, which failed.

[24] Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48, 60 [46], citing earlier authority; applied to an appeal under s 272 in Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority) [2011] VSC 597 by Osborn J (as he then was) [76].

[25] Risi Pty Ltd v Pin Oak Holdings Pty Ltd [2017] VSCA 317, [56].

[27] [2011] VSC 597.

[29] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-4, 1, first paragraph.

[30] Ibid Exhibit SMB-4, 4, sixth paragraph; 5, final paragraph; 7, first and fourth dot points.

[33] Ibid, 2, third complete paragraph.

[36] R v Australian Char Pty Ltd [1999] 3 VR 834 at 847 [55]; DPP v Amcor Packaging Australia Pty Ltd [2005] VSCA 219; (2005) 11 VR 557 at 565 [34]- [35]; R v Commercial Industrial Construction Group [2006] VSCA 181; (2006) 14 VR 321 at 332 [49]; DPP v JCS Fabrications Pty Ltd [2019] VSCA 50 [51].

[37] Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531, [10].

[38] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-4, 7, first dot point.

[40] Ibid, second paragraph; 6, final dot point.

[44] Appellant's Amended Outline of Submissions 20 April 2018 [49].

[45] Second Respondent's Outline of Submissions [26]-[29].

[46] Second Respondent's Outline of Submissions [32].

[47] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-4, 5 second paragraph; 6, second paragraph.

[48] Ibid 5, fourth paragraph; 6, fourth paragraph.

[49] Second Respondent's Outline of Submissions [28].

[50] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-4, 5, second paragraph.

[53] Kirk v Industrial Court of NSW [2010] HCA 1; (2010) 239 CLR 531 [14]; Baiada Poulty Ltd v Glenister (2015) 257 IR 204 [48]-[49] (successfully appealed to the High Court, but not on this point); Vibro-Pile (n 12) [133].

[54] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-2, 191, lines 21-30.

[55] Transcript of hearing (Supreme Court of Victoria, S CI 2017 03289, Lansdowne AsJ, 17 May 2018), 67, lines 20-22.

[56] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-4, 4, fourth paragraph.

[59] Ibid Exhibit SMB-2, (Transcript of Proceedings, Magistrate's Court of Victoria, 6 December 2016, Evidence in chief of Peter Tame), 139, 148.

[60] Ibid Exhibit SMB-4, 4 first full paragraph.

[61] Transcript of Proceedings, Supreme Court of Victoria, S CI 2017 03289, Lansdowne AsJ 17 May 2018) 62, lines 23-31.

[62] Affidavit of Steven Mark Bell, sworn 8 December 2017, Exhibit SMB-26, 6.

[63] [1999] 3 VR 934, [53] per Kaye and Beach JJ. Although reported in 1999, the decision was actually handed down in 1989.

[64] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249 at 264 per Dawson, Toohey and Gaudron JJ.

[68] R v Hartley [1972] 2 QB 1, 4.

[69] (1993) 1 Qd R 232.

[70] [1923] SAStRp 37; [1923] SASR 301.

[71] Ibid, at 306-307, quoted in Deputy Commissioner of Taxation v Demian [2018] NSWSC 1191, [56].

[72] Affidavit of Steven Mark Bell, sworn 8 December 2017, Exhibit SMB-26, 5; 9.

[73] Affidavit of Steven Mark Bell, sworn 23 August 2017, Exhibit SMB-2, 41, line 30-T; 42, line 3.

[78] Transcript of proceedings (Supreme Court of Victoria, S CI 2017 03289, Lansdowne AsJ, 17 May 2018), 100.

[80] Further Affidavit of Alana Terri Ziebell, sworn 19 April 2018, Exhibit ATZ-4.

[82] Affidavit of Steven Mark Bell, sworn 8 December 2017, Exhibit SMB-37, [21].

[83] [2017] VSCA 27.

[85] [1988] VicRp 49; [1988] VR 411.

[87] Transcript of proceedings (Supreme Court of Victoria, S CI 2017 03289, Lansdowne AsJ, 17 May 2018), 94.

[88] [1973] 1 WLR 1151.

[91] Transcript of proceedings (Supreme Court of Victoria, S CI 2017 03289, 17 May 2018), 57-59.