Browncroft v R, unreported; CCA SCt of WA; Library No 2421; 29 September 1978

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

Clark v Ryan [1960] HCA 42; (1960) 103 CLR 486

Interstruct Pty Ltd v Wakelan (1990) 3 WAR 100

May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654

McDermid v Nash Dredging and Reclamation Co Ltd [1986] UKHL 5; [1987] 1 AC 906

Peacock v The King [1911] HCA 66; (1912) 13 CLR 619

R v Hinz [1972] Qd R 272

Reg v Galbraith [1981] 2 All ER 1060

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573

Waldie v Cook (1988) 91 FLR 413

Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433

This is an appeal by leave granted by the Full Court on 22 September 1997 against a judgment of White J dated 1 August 1997, by which the learned Judge ordered that the appeal from a decision of his Worship Mr MD Wheeler SM, given on Complaint Nos. 49588 and 49592 of 1996 in the Court of Petty Sessions at Perth on 21 February 1997, be dismissed and that the appellant pay the respondents' costs of the appeal. The learned Judge upheld the decision of the learned Magistrate that there was no case for the respondents to answer in respect of a prosecution by the appellant and dismissed the charges against the respondents accordingly.

The prosecution arose out of the tragic loss at sea of the fishing vessel Harmony due to its exposure to Cyclone Bobby ("the Cyclone") on or about 23 or 24 February 1995 resulting in the death of all her crew. The first respondent ("Kiwi") is an Australian incorporated company; trading under the name "Morning Star Fisheries". Kiwi operates fishing vessels and was the owner of the vessel Harmony. Kiwi was the employer of Harmony's crew, namely Mr Hugh James Hatch ("the Master"), Ms Janine Callow, Mr Daniel Mark Brennan and Mr Scott Adrian Clarke. Kiwi was charged on the complaint of the appellant with contravening ss19(1)(a), 19(6) and 54(b) of the Occupational Health, Safety and Welfare Act 1984 (`the Act") by failing to provide and maintain a system of work so that, so far as is practicable, its employees were not exposed to hazards. The second respondent ("Mr Rettay"), is one of two directors of Kiwi. Mr Rettay was charged pursuant to s55 of the Act with the offence that he was a director of a body corporate which was guilty of offences under the Act. Mr Rettay's liability is conditional upon Kiwi's liability.

The relevant provisions of the Act were as follows:

"19. (1) An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall -

(a) provide and maintain workplaces, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;

(6) An employer who contravenes subsection (1) commits an offence and is liable to a fine of $100 000."

"54. A person who commits an offence against this Act is liable, if a penalty is not expressly provided for that offence -

(a) where the offence is committed by a person as an employee, to a fine of $5 000; and

"55. (1) Where a body corporate is guilty of an offence under this Act and it is proved that the offence occurred with the consent or connivance of, or was attributable to any neglect on the part of, any director, manager, secretary or other officer of the body, or any person who was purporting to act in any such capacity he, as well as the body corporate, is guilty of that offence.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) shall apply in relation to the acts and defaults of a member in connection with his functions of management as if he were a director of the body corporate."

The appellant provided the following particulars of the charge against Kiwi:

"1. SYSTEM OF WORK WHICH THE DEFENDANT FAILED TO PROVIDE AND MAINTAIN

A system for avoiding the fishing vessel Harmony being exposed to cyclonic winds while at sea which has the following elements:

(a) the regular monitoring of weather information so that cyclonic activity can be identified and, once identified, its position located and tracked;

(b) requiring fishing vessels to return to one or more identified safe anchorages if a cyclone comes within 200 nautical miles of the vessel's position;

(c) arrangements having been made with the controlling authorities for the porting of those vessels in those identified anchorages in the event of a cyclone.

The risk of the fishing vessel which the employees were on being exposed to cyclonic winds while at sea."

The appellant provided the following particulars of the charge against Mr Rettay:

The defendant was the Director of Kiwi Electrix Pty Ltd t/as Morning Star Fisheries ('the company').

On or about the 24th day of February 1995 at the Indian Ocean off Onslow, the Company was guilty of an offence under Section 19(1)(a) of the Occupational Health, Safety and Welfare Act 1984 in that it failed to provide a system of work such that so far as was practicable its employees, Hugh James Hatch, Janine Callow, Daniel Mark Brennan and Scott Adrian Clarke, were not exposed to a hazard, namely the risk of the fishing vessel which they were on being exposed to cyclonic winds while at sea.

The Defendant was aware that the Company did not have a system for avoiding the fishing vessel Harmony from being exposed to cyclonic winds while at sea which had the following elements:

(a) the regular monitoring of weather information so that cyclonic activity can be identified and, once identified, its position located and tracked;

(b) requiring fishing vessels to return to one or more identified safe anchorages if a cyclone comes within 200 nautical miles of the vessel's position;

(c) arrangements having been made with the controlling authorities for the porting of those vessels in those identified anchorages in the event of a cyclone.

The Defendant failed to take any steps to ensure that such a system was established."

Harmony was "a 60 feet steel hulled boat, 60 tonne in weight and was rigged out as a twin-rigged fishing trawler." The Master was the master of Harmony during the events which culminated in her wreck and loss of crew. The Master was a Master class 5 or equivalent. The events which lead up to the tragic loss of Harmony and her crew cannot be fully known because none of her crew survived. The evidence adduced before the learned Magistrate provides some background.

Cyclone Bobby was named at 7am on 22 February 1995, at which stage it was 400 nautical miles from Onslow. A gale warning was issued on 22 February , in the following terms:

"Tropical Cyclone, central pressure about 995 hectopascals, causing very rough seas, heavy swell, 30 to 45 knot winds within 50 nautical miles of the centre."

There were numerous weather alerts issued about the Cyclone from 22 to 26 February.

Mr Shanks, the owner and operator of a fishing vessel, Oriana, gave evidence that he spoke with the Master of Harmony by means of UHF radio on 21, 22 and 23 February. Mr Shanks saw Harmony around Sholl Island, North Sandy, about 60 nautical miles from Onslow, on 21 February. He gave evidence of having spoken with the Master about weather faxes and a satellite photograph on 22 February. A marine engineer, Mr Mark Steven McIntyre, gave evidence that on or about 22 February the crew of Advancer, a fishing vessel on which Mr McIntyre was employed at the time, boarded Harmony for a barbecue and then parted company. Mrs Felicity Catherine Brennan, aunt of one of the deceased, gave evidence that she spoke to the Master by means of a mobile telephone late on 22 February and that the Master indicated that he was aware of the formation of "a tropical low up north", but that "it was a long way away."

On 23 February at about 4am Mr Shanks is believed to have spoken with the Master about "a cyclone forecast as being off the northwest coast" and that Oriana and her crew were returning to Beadon Creek, Onslow. It was common knowledge that vessels in the vicinity of Harmony chose Onslow as the safe port. Oriana left at about 5am in wind squalls and driving rains. The wind was about 40 knots. Mr McIntyre gave evidence that on or about 23 February he saw the Master of Harmony hold up a weather fax. During the hearing before the learned Magistrate charts were introduced into evidence to reflect the course of the Cyclone and the position of various vessels at various times. The charts show that the centre of the Cyclone was within 200 nautical miles of Harmony, which was positioned near Sholl Island, by 7am on 23 February 1995.

Mrs Brennan gave evidence that she spoke to the Master at about 6.30am on 24 February by means of rad phone. Mrs Brennan said that various radios were on board and there was a fax machine. Mr Shanks gave evidence that on 24 February at about 10am at Beadon Creek, Onslow he spoke with the Master of Harmony via radio. This was the last contact with Harmony. Mr McIntyre had seen what he believed was Harmony on 24 February when Advancer had apparently overtaken it whilst it was heading for safe anchorage at Onslow, although the identification was not positive.

At an indeterminate time on 24 February Harmony was believed to have commenced her journey from Sholl Island towards Beadon Creek. On or about the time Harmony left Sholl Island, it is believed that the centre of the Cyclone was less than 60 nautical miles from Harmony's position. At trial it was accepted by the learned Magistrate that the most likely course of events was that Harmony was heading to Beadon Creek when it was overtaken by the Cyclone and that, tragically, all its crew perished as a consequence of Harmony capsizing and sinking. The Cyclone crossed Onslow at 1am on 25 February. Harmony was found on 28 February sunk off Herald Reef. A copy of the Operations Manual was retrieved from the wreck of Harmony.

At the hearing there were four grounds of appeal which raised a number of sub-issues. Grounds 1(a) to (c) raise the first question of the appeal, namely, whether the learned Judge erred in upholding the test applied by the Magistrate to determine the respondents' no case to answer submission. Grounds 2(a) to (g) and 3 raise the second question, namely, whether White J erred in holding that the appellant's evidence did not demonstrate a prima facie case of the absence of a relevant system of work as required under the Act. In particular, it was contended that the learned Judge failed to properly consider the circumstantial evidence given by Mr Robert Alan Elkington ("Mr Elkington"), the chief inspector of fatalities and special investigations branch within Worksafe WA, taken together with the contents of Kiwi's operator's manual ("the Operator's Manual"). Ground 4 raises the third question, namely, whether the learned Judge erred in upholding the Magistrate's decision to exclude the evidence of Mr Michael Manifis ("Mr Manifis") and part of the evidence of Mr Paul Wheatley ("Mr Wheatley"), insofar as their evidence was relevant to the issue of the practicability of Kiwi providing and maintaining a system of work on Harmony and the further issue whether, if such a system had been put into practice, her crew would have avoided the hazards of the Cyclone.

Decisions of Wheeler SM and White J as to no case to answer

Putting Mr Elkington's evidence aside, his Worship found that none of the circumstantial evidence could support an inference that there was no system of work in place on Harmony. In this context the learned Magistrate said:

"There is evidence before me that the 'Harmony' had a radio - or radios - and one can look at the evidence of Brennan, Bolton and Shanks for that. There was evidence that 'Harmony' had a radar - that comes from the evidence of Bolton; a fax machine - that comes from Brennan and McIntyre who talked about a weather fax; and a mobile phone - Brennan talked about that. So, we have a boat that's got a radar, radio, fax machine and phone.

There is clear evidence that Hatch was the skipper. There was evidence that he was master class 5 or equivalent and the expert witnesses Wheatley and Spencer confirmed that the skipper is in command of his ship. It is clear from the evidence that Hatch was to some extent, at least, monitoring weather information. For example, there was McIntyre's evidence concerning a weather fax being held up by Hatch. There's Miss Brennan's evidence of a conversation by rad phone she had, late on Wednesday or early Thursday, about the weather. She stated that he was aware there was a tropical low but that was a long way away. That appears, of course, on the evidence to be wrong, but there's certainly evidence that he was talking about the weather.

There was Shank's evidence that he spoke to Hatch on the morning of the 23rd of February at about 4am concerning the weather. In my view the only inference that could be drawn from both prosecution witnesses is that the master of the vessel was monitoring the weather and specifically was discussing --with what he told Brennan was a tropical low a long way away.

I need not, and do not, speculate further than to say that he may well have misread or misjudged the weather information based on Mr Hanstrum's evidence, but that is not the point. None of the evidence, leaving Elkington's aside for present, is capable of suggesting a lack of system for monitoring weather information and, in fact, it's positively suggested there was a system in the hands of the skipper, which is to be expected in the circumstances of a ship the size of the 'Harmony'."

The appellant's case regarding the absence of a system of work in place on Harmony which complied with s19(1) of the Act, substantially relied upon the evidence of Mr Elkington. Mr Elkington gave evidence that he had attended on Mr Rettay on 10 May 1995 at the office of Kiwi in the company of Constable England. Mr Elkington requested an interview with Mr Rettay, but Mr Rettay said that "he did not have time to be interviewed on that day". Nevertheless Mr Rettay, in the presence of Mrs Rettay and Constable England, handed to Mr Elkington what he described as a "safety manual for his vessels" which was the Operator's Manual. The Operator's Manual was said to have been on Harmony at the time it sunk. Mr Elkington proceeded to read pp40 to 49 of the Operator's Manual dealing with communication in relation to cyclone matters. Mr Rettay confirmed that these were the only procedures dealing with cyclones in the Operator's Manual. Mr Elkington gave evidence that he read the relevant section and said:

"But this only deals with what a cyclone is. It doesn't provide a procedure of what the vessel is to do."

Mr Rettay responded, "Yes, I know, they should know what to do." This evidence was uncontradicted in cross-examination.

The Operator's Manual does not say anything about the procedure to be followed in the case of a cyclone. In particular it said nothing about ensuring that the vessel remained in an area outside a specific radius from the cyclone. Evidence was given by Mr William Phillip Spencer, former relieving Harbour Master, Department of Marine and Harbours, that not less than 200 nautical miles was suggested. In respect of monitoring the vessel's distance from the cyclone the Operator's Manual says only:

"In the event that a cyclone should be approaching your position ensure that you know in what quadrant you are located. This can be done with the help of radio reports describing the position movement and strength of the cyclone. Perth Radio Base will keep you up to date with reports received from the Bureau of Meteorology."

"Despite all the other witnesses called by the prosecution, including the master mariners, in my view the prosecution case thus comes down to the evidence of Mr Elkington. As I stated earlier in these reasons, his is the only direct evidence of the company's actions. All other witnesses do not, in my view, corroborate or tend to corroborate the prosecution case and inferences are not capable of being drawn adverse to the defendant in my view.

In my view, excepting (sic accepting) Mr Elkington's conversation with Mr Rettay taken at its highest - as I must do for no case submission purposes - admissions made by Mr Rettay on the 10th of May 1995 are totally equivocal and not capable of sustaining the inference that the safety manual, as it is, in fact, entitled - being exhibit 13 - contained all details of the system of work utilised by Kiwi Electrix for dealing with cyclones.

In saying this I am aware that page 46 of the manual includes the sentence:

'This chapter is intended as a guide to skippers who may find themselves unsure of what procedure to follow in the event of approaching cyclones.'

The document is undated and it cannot be inferred that they are the only details that Hatch had. Also, those pages tend to relate to what happens in the event a cyclone can't be avoided. It actually talks about what happens if you actually get into a cyclone.

The statements of Mr Rettay clearly leave open existence of other documents or standing verbal instructions to his skipper of some years, Mr Hatch. Rettay clearly stated to Elkington at the start of their meeting that he had no time to be interviewed and no inference could possibly be drawn [that] there was no other information concerning work systems that could have been provided by either him, or for that matter some other company official.

Finally and specifically on this point, the words of Rettay, 'Yes, I know. They should know what to do' ---just as consistent with a system being in place...expressed elsewhere than exhibit 13 and could not be taken to be an admission of lack of system.

I realise that the prosecution have only to provide evidence of primary facts capable by way of inference of sustaining a verdict of guilty but, quite frankly, taking the evidence at its highest I believe there is no such cogent evidence capable of sustaining a verdict of guilty for the reasons herein described.

Accordingly, I uphold the no case submission and dismiss the charge against Kiwi Elextrix. Accordingly, the charge against Mr Rettay, too, falls way and I dismiss it."

These findings were upheld by White J on appeal. In making his findings in regard to Mr Elkington's evidence, the learned Judge considered that the position at the stage of a no case to answer submission to be correctly stated as follows:

"If the evidence is incapable of excluding an inference consistent with the innocence of the accused, then it is incapable of proving his guilt beyond a reasonable doubt and the accused must be acquitted: (Gebert, Haley & Black v The Queen [1992] SASR 110)."

The learned Judge regarded his Worship as having correctly concluded that Mr Elkington's evidence was "totally equivocal" and, therefore, open to the inference that there was a system of work in place on Harmony. In this context White J said in his reasons:

"19. Elkington's evidence establishes nothing more than that the operations manual itself (said to have been described by Rettay as a safety manual) did not contain any information dealing with a system of monitoring, tracking and avoiding cyclones and that the First Respondent's Masters, otherwise ought to have known what to do when a cyclone came within the vicinity of their vessel...

20. Elkington's evidence is therefore, equally susceptible to the further reasonable inference that the First Respondent had in place and maintained an oral procedure, or oral policy for avoiding cyclones consistent with the System."

Grounds 1(a) to (c): no case to answer submission

Grounds 1(a) to (c) contended that White J erred in upholding the learned Magistrate's determination of the no case to answer submission. The prosecution contended that his Worship and White J misapplied the relevant test for determining a no case to answer submission. In particular, it was submitted that it was incorrect to apply the criminal standard of persuasion to determine a no case to answer submission. The prosecution contended that where the case rests on circumstantial evidence, as it did in the present case, the correct approach is whether the primary facts are capable by way of inference of sustaining a verdict of guilty.

In my opinion, where a no case to answer submission is made by an accused in reply to a prosecution case, the trial judge is required to ask whether the evidence of the Crown taken at its highest is capable of establishing beyond a reasonable doubt the guilt of the accused: The Queen v Bilick and Starke (1984) 36 SASR 321 at 335 per King CJ; and Gebert, Haley & Black v The Queen [1992] SASC 3637; (1992) 60 SASR 110 at 112-113 per Mullighan J(with whom King CJ and Olsson J agreed). The incorporation of the criminal standard in the test to be applied to no case to answer submissions was doubted by Burt CJ in R v Briggs (1987) 24 A Crim R 98 a104-105 as follows:

"I would, with great respect, doubt whether the question as it arises on a no case to answer submission should be formulated so as to embrace the criminal standard of persuasion. In my opinion, the question at that stage of the trial is simply whether the evidence called by the Crown is capable of sustaining a verdict of guilty and where, as in this case, such a verdict if returned rests upon circumstantial evidence, the question is whether the primary facts are capable by way of inference of sustaining a verdict of guilty, it being: 'for the jury, properly directed, and for them alone to say not merely whether it carries a strong probability of guilt, but whether the inference exists actually and clearly, and so completely overcomes all other inferences or hypotheses, as to leave no reasonable doubt of guilt in their minds': Peacock [1911] HCA 66; (1911) 13 CLR 619 at 651, per Barton J cited with approval by Menzies J in Plomp [1963] HCA 44; (1963) 110 CLR 234 at 246."

It is to be noted that in the formulation of the test in a case of circumstantial evidence the then Chief Justice did in effect embrace the criminal standard.

Briggs was followed in R v Morris, unreported; SCt of WA; Library No 970703; 15 December 1997, citing Cox v Salt (1994) 12 WAR 12, where Ipp J said at 5:

"Subject to certain exceptions, when adjudicating upon the evidence whether a defendant could lawfully be convicted, the Magistrate is required to proceed on the assumption that all the evidence of primary facts, considered at its strongest from the point of view of the case for the prosecution, is accurate: R v Billick [1984] 36 SASR 321 at 337; Myers v Claudianos (1990) 100 FLR 362 at 369. The exceptions are evidence that is inherently incredible (Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151) or manifestly self-contradictory or the product of a disorderly mind (see R v Billick at 337).

Where the prosecution case is based on circumstantial evidence, the Magistrate is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts: Haw Tua Tau v Public Prosecutor (at 150), Myers v Claudianos (at 369)"

In my opinion, by expressing the test in terms whether the evidence is "capable of sustaining a verdict of guilty", but "not so as to embrace the criminal standard of persuasion" beyond reasonable doubt Burt CJ must be understood as doubting that it was necessary that the evidence must be capable of establishing the guilt of the accused beyond reasonable doubt. With great respect, I find it difficult to understand how evidence can be capable of sustaining a verdict of guilty unless it is capable of persuading a tribunal of fact of guilt beyond reasonable doubt. The exclusion of the application of the criminal standard in the first part of the explanation of the test appears to be inconsistent with a number of other authorities. For example, in R v Murphy (1985) 63 ALR 53 at 78 Street CJ, Hope, Glass, Samuels and Priestley JJA said that on a no case submission:

"The question (the Judge) is required to answer is whether the evidence for the Crown taken at its highest reach is capable of establishing beyond reasonable doubt the guilt of the accused: Plomp (110 CLR at 247)."

In Plomp v The Queen [1963] HCA 44; (1963) 110 CLR 234 at 247 Menzies J formulated the question before the High Court as "whether this Court thinks that upon the evidence it was open to the jury to be satisfied beyond reasonable doubt that the death of the deceased was not accidental but was the work of the applicant". No reference was made in this passage to taking the Crown case at its highest. Of course, the question in that case was not whether there was a case to answer, but whether the evidence admitted of an inference other than guilt: see per Menzies J at 244. In Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207, however, where the issue was whether there was a case to answer Deane, Dawson, Toohey, Gaudron and McHugh JJ said at 214-215:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

While that passage does not refer to the standard of proof it is clear that the question is whether, taken at its highest, the evidence is capable of sustaining a verdict of guilty by proof beyond reasonable doubt. In my opinion, this was made clear in The Queen v Bilick and Starke, above, in which King CJ (with whom Mohr J agreed) said at 335:

"The question of law is whether on the evidence as it stands the defendant could lawfully be convicted. He could lawfully be convicted only if it is capable of producing in the minds of a reasonable jury satisfaction beyond reasonable doubt."

This decision was followed in Gebert, Haley & Black v The Queen, above, at 112-113 per Mullighan J, with whom King CJ and Olsson J agreed. In that case, as in this, the Court had to determine whether the circumstantial evidence relied upon was sufficient to give rise to a case to answer. The court approved and applied the test stated by King CJ in Bilick at 337as follows:

"The same test is to be applied to deciding a submission of no case to answer in a case depending upon circumstantial evidence as in a case depending upon direct evidence, although the manner of its application will be different. The question to be asked by the trial judge is whether there is evidence with respect to every element of the offence charged which, if accepted, could prove that element beyond reasonable doubt...Where the case is a circumstantial or partly circumstantial case and therefore depends upon inferences, the question may be expanded so that it becomes: On the assumption that all the evidence of primary fact considered at its strongest from the point of view of the case for the prosecution, is accurate, and on the further assumption that all inferences which are reasonably open, are drawn, is the evidence capable of producing in the mind of a reasonable person satisfaction beyond reasonable doubt, of the guilt of the accused?"

Cross on Evidence (5th Aust Ed 1996) para 9115 at 258-259 notes that there is a dispute whether the criminal or the civil standard of proof applies in determining whether there is a case to answer in criminal proceedings. The learned editors take the view that, on principle, the criminal standard applies in criminal cases. In addition to the cases to which I have referred, others which adopt the criminal standard include Wilson v Kuhl [1979] VicRp 34; [1979] VR 315 at 319 per McGarvie J; R v Galbraith [1981] 1 WLR 1039 at 1042 per Lane LCJ; Haw Tua Tau v Public Prosecutor [1982] AC 136 at 151 per Lord Diplock; Attorney General's Reference (No 1 of 1983 )[1983] VicRp 101; [1983] 2 VR 410; Wentworth v Rogers [1984] 2 NSWLR 422 at 429 per Glass JA; and at 436 per Samuels JA; Tepper v San Fransesco (1984) 38 SASR 256; and R v R (1989) 18 NSWLR 74. Authorities to the contrary are noted in Cross in para 9115 with the comment that, "The main trend in the English and Australian authorities favours the criminal standard." In my view the doubt expressed in Briggs should be resolved in favour of the criminal standard and the test applied as formulated in Bilick.

Grounds 2(a) to (g) and 3: Elkington's Evidence

The substance of grounds 2(a) to (g) and 3 of the grounds of appeal was that White J erred in upholding the Magistrate's decision insofar as his Worship failed to properly consider the circumstantial evidence in applying the test for no case to answer submissions. Although grounds 2(a) to (g) and 3 concern all of the prosecution's evidence, the primary evidence in support of the prosecution's case was the evidence of Mr Elkington's conversation with Mr Rettay about the Operator's Manual. It is therefore appropriate that I deal with this evidence in isolation to other circumstantial evidence led by the prosecution.

In my opinion, the statement by Mr Rettay, "Yes, I know. They should know what to do", was an admission that there was nothing in the Operator's Manual regarding what is to be done in the case of an approaching cyclone. The statement infers that it is unnecessary to have anything in the manual because the Master and crew should know what to do. This leads to a further inference that it is not necessary to tell them anything.

Accordingly, in applying the relevant test, the admission by Mr Rettay was capable of excluding beyond reasonable doubt, as a reasonable hypothesis, that there was in place any instruction or advice in relation to a system of work in addition to the Operator's Manual. On the application of the test as formulated in the authorities cited above, the no case to answer submission by the respondents should have failed. For these reasons the appeal should be allowed and the decision of the learned Magistrate set aside.

Having concluded that the learned Magistrate was in error in finding no case to answer, it is necessary to determine whether it would be appropriate, in all the circumstances, to remit the matter to his Worship to complete the hearing or whether there should be a new trial before a different magistrate. Counsel for the Crown advanced three reasons why the matter should be heard before a different magistrate. The first was that the whole of transcript for the first day of the hearing has been lost. Secondly, the learned Magistrate had wrongly excluded the evidence of two prosecution witnesses, Mr Manifis and Mr Wheatley, which is dealt with in ground 4 of the grounds of appeal. If ground 4 of the appeal is successful then evidence of Mr Manifis and Mr Wheatley will need to be heard. Thirdly, it was open for this Court to find that the inference the Magistrate drew as to the existence of standing instructions to the Master of the Harmony about avoiding cyclonic conditions was an inference that the Magistrate was not entitled to draw.

Having concluded that the Magistrate was in error in drawing the inference he did, it is appropriate next to consider the merits of the second reason advanced by the appellant that further evidence will be required to be adduced so that it would be appropriate for the matter to be heard by a different magistrate.

Manifis and Wheatley's Evidence: Ground 4 of the Appeal

At trial, the appellant sought to rely on the evidence of Mr Wheatley and Mr Manifis. Mr Wheatley was employed as the operations superintendent for Stirling Marine Services at the time of the Cyclone. Mr Wheatley was responsible for the day to day operations of his employer's vessels, their compliance with company procedures and occupational health and safety matters. At that time, Stirling Marine Services operated two landing barges out of Onslow. Similarly, Mr Manifis was employed by a company, Ashburton Fisheries Pty Ltd, operating vessels out of Onslow at the time of the Cyclone. On 22 February, that company had two fishing vessels operating out of Onslow.

The purpose of calling Mr Manifis and Mr Wheatley was to adduce evidence of the practicability of systems of work in place in similar marine operations to those undertaken by Harmony, which were in place on vessels operating out of Onslow at the time of the Cyclone and which avoided their crews being exposed to the hazards of the Cyclone. However, his Worship did not allow the evidence of Mr Manifis and that part of Mr Wheatley's evidence relevant to the issue of practicability. The learned Magistrate did not regard it relevant or permissible to lead evidence of the systems of other operators to establish whether it was practicable to have a system in place which would have avoided Harmony and her crew from being exposed to the Cyclone. His Worship's decision on this issue was the subject of ground 1(d) of the Crown's grounds of appeal heard before White J. In this context the learned Judge said, in the summary of his reasons:

"23. The prosecution sought to justify the proposed evidence from Mr Manifis on the basis that it was reasonably practicable for a fisherman in a vessel such as the Harmony to avoid being exposed to cyclonic winds...Quite apart from the inadmissibility of the evidence on that basis, that was not the evidence on that basis, that was not the evidence which it was proposed to adduce.

24. A course of conduct adopted by one vessel owner on a particular occasion proves nothing beyond what was done by him on that occasion and is probative of nothing relevant to the charge against the Respondent.

25. Manifis was not called as an expert (and did not qualify himself as such) to give evidence of a system that was reasonably available to the Respondent. In any event, the Applicant conceded the evidence was 'unnecessary'...

26. His worship correctly excluded the evidence of Mr Manifis...

27. The Applicant sought to adduce evidence of the particular system used by Stirling Marine to demonstrate that it was practicable to have a system in place...

(a) that the particular system adopted by one company is irrelevant to the issue whether the Respondent had in place an appropriate system;...and

(b) it misconceives the effect of Section 19(1)(a); the issue is not whether it was practicable to have in place a system but that the System in fact in place should itself, so far as practicable, have the effect of avoiding exposing the relevant employees to hazards. That is to say it is the content of the hypothesised system which should, so far as that is relevantly practicable, avoid exposing employees to hazards.

29. Not only was the evidence correctly excluded, but ultimately evidence that might be thought to be relevant was admitted... ."

Ground 4 of the grounds of appeal contended that the learned Magistrate was in error in excluding the evidence of Mr Manifis and part of the evidence of Mr Wheatley, when their evidence as to the systems of work employed in the event of cyclones, by the operators of their vessels operating out of Onslow, was relevant to the extent to which it was practicable for Kiwi to provide and maintain a system of work to ensure that its employees were not exposed to the hazards of cyclones at sea. The appellant submitted that the evidence of Mr Manifis and Mr Wheatley should be admitted because it was relevant to the objective state of knowledge of the risk and means of removing or mitigating that risk, and to have regard to the availability, suitability and costs of the means of removing or mitigating the risk. It was contended that evidence of systems of work employed in other similar marine operations to avoid the exposure of employees to the hazards of cyclones was admissible, insofar that it was evidence of other practices which were relevant to the practicability of employing and maintaining such systems to avoid the exposure of vessels to cyclonic conditions, such as that experienced by Harmony and her crew.

The obligation on the prosecution in this case was to prove a negative. The complainant was required to prove that there was not in place a system of work which would have, so far as is practicable, prevented Harmony's crew from having been exposed to the Cyclone. In my opinion, it was relevant to the complainant's case to demonstrate that there were in existence, in equivalent situations on other vessels operated by similar marine operations out of Onslow, systems which were capable of practical operation on Harmony, such that if such a system had been put into operation on Harmony the hazards of the Cyclone to her crew would have been avoided. It would appear that there were a number of boats in the same situation as Harmony, carrying out the same kind of work and operating under the same conditions. What other boats did in accordance with the systems they had in place was both relevant and admissible. The evidence was wrongly excluded in this case. Therefore, it will be open to the appellant to adduce such evidence when the case is re-tried.

In my opinion, the fact that the learned Magistrate did not have the advantage of the first day's transcript, by itself, is not alone enough to necessarily lead to a conclusion that the case be re-tried before a different magistrate. A summary of the evidence adduced on the first day has been included in the respondents' synopsis of evidence. This synopsis was accepted by Crown Counsel before his Worship and White J. In any case, if the evidence raised contentious issues, those issues no doubt were made the subject of Counsel's notes at the time which could be made available. In my opinion, however, having regard to the conclusions reached on other issues raised by the appeal, it would be appropriate to remit the case to the Court of Petty Sessions for trial before a different magistrate. Section 199(1)(d) of the Justices Act 1902 provides that:

"Upon the hearing of an appeal, the Court may do one or more of the following -

(d) remit the case for rehearing by justices or specified justices or a magistrate or specified magistrate, with or without any direction to him or them; ..."

In my opinion, such an order is appropriate notwithstanding that the Court has since been informed by Counsel for the prosecution that Mr Shanks, a witness called by the prosecution, has since died. In the circumstances it would be appropriate that a direction be made that the new magistrate hearing the matter receive the evidence of Mr Shanks as described in the transcript of proceedings before Magistrate Wheeler SM.

For these reasons the appeal should be allowed and the orders of White J set aside. In lieu thereof there should be an order allowing the appeal, setting aside the decision of the learned Magistrate to dismiss the complaint and for the complaint to be re-tried before a different magistrate. For that purpose there should be a direction that the learned Magistrate receive the evidence of the late Mr Shanks as recorded and transcribed at the first trial.

I have had the benefit of reading in draft the reasons published by the Chief Justice, with which I am in agreement. I would make the orders proposed by his Honour.

I have read the reasons to be published by the Chief Justice. I am in agreement with those reasons and have nothing further to add.