DE MARTE -v- DIRECTOR OF PUBLIC PROSECUTIONS [2025] WASC 255 (30 June 2025)

1. The appellant's conduct said to constitute the charged offence was that he cut, and thereby severed, a boom indicator cable on a crane.
2. The cable runs horizontally along the outside of the arm of the crane. The cable is not load bearing. It is, however, under tension. Its purpose is to indicate the length to which the crane arm is extended, which is relayed via a computer in the crane cab. That information assists in calculating the crane's lifting capability.
3. One end of the cable is wound around a drum reel, which sits in a closed housing. The other end is secured to an anchor point at the end of the crane arm. The cable runs out through an aperture in the housing, through three eyelets on the cable arm and is then secured at the anchor point. As the crane arm extends, the cable on the drum reel feeds out through the aperture. As the crane arm retracts, the cable retracts back onto the drum reel by reason of the tension on the reel.
4. Below is a photograph of the cable in place taken by an expert witness for the appellant, Mr Birks, on 13 December 2021.[1] The photograph demonstrates that the cable extends from the cable housing on the lefthand side, through the three eyelets to the anchor point on the righthand side. Mr Birks inserted the labels on the photograph.

1. In simple terms, the prosecution case against the appellant at trial was as follows.
2. The crane in question is owned by a company called HotWeld and was being used to carry out works at the Harvey Beef Abattoir. The crane was used to carry out works on Friday 13 November 2020. That afternoon, it was packed up and placed in a lay down area. At that point in time, the cable was situated along the crane arm and the crane was functioning without error.
3. At the commencement of work on the morning of Monday 16 November 2020, three employees of HotWeld each observed that the cable was not situated along the crane arm where it should have been. Those employees were Mr Hawkins, Mr Babich and Mr Bentley. They each gave evidence at trial as to what they observed. Mr Hawkins also gave evidence as to how he repaired the cable.
4. The appellant operates a crane company called Halifax Cranes, which is a competitor of HotWeld. The appellant was at the site on Saturday 14 November 2020 for the purposes of carrying out works using cranes operated by Halifax Cranes. CCTV footage of the Saturday showed the appellant near where the cable was situated on the arm of the HotWeld crane. There was no reason for the appellant to be there. CCTV footage for the balance of the weekend did not show any other person proximate to the cable. The prosecution case was that the only reasonable inference in all of these circumstances was that the appellant had cut, and thereby severed, the cable.
5. An indispensable link in the prosecution case, which needed to be proved beyond reasonable doubt, was that the cable was in fact severed by the time the employees inspected the crane on the Monday morning. At trial, the appellant's case was conducted on the basis that the cable had been severed by that time. Thus, the indispensable link was not contested at trial.

1. The appellant gave evidence at trial. The appellant accepted he was in close proximity to the cable on the Saturday and also accepted that he lied in his police interview about that topic. He denied that he cut the cable. The appellant provided an innocent explanation for being near the cable, saying he was there to urinate. The learned magistrate rejected the appellant's evidence to that effect and put it to one side. The appellant does not suggest the additional evidence on appeal affects that finding.
2. At trial, the appellant raised two alternate innocent hypotheses as to how the cable had been severed. These hypotheses relied on evidence given at trial concerning the condition of the cable, and that on the Friday an 'unsafe lift' was carried out using the crane.
3. The first hypothesis put forward by the appellant at trial was that by reason of the unsafe lift, the poor condition of the cable, or both, the cable had severed during the course of its operation on the Friday. The appellant's trial counsel did not press this hypothesis in his closing address.[2] The appellant does not seek to agitate the availability of the first hypothesis on the appeal.
4. The second hypothesis was that by reason of the unsafe lift, the poor condition of the cable, or both, the cable had severed at some point after it had been packed up on the Friday afternoon, and before it was inspected on the Monday morning. The learned magistrate was satisfied beyond reasonable doubt that the cable did not sever as a result of those matters. In coming to this finding, the learned magistrate found that any additional stress and potential damage to the cable from the unsafe lift was minimal.[3] The appellant does not suggest that the additional evidence affects this finding. Further, the appellant does not seek to agitate the availability of the second hypothesis on the appeal.[4]
5. In light of these findings that I have just described, the learned magistrate was satisfied the only reasonable inference was that the appellant had severed the cable.

1. On the appeal, the appellant seeks leave to adduce additional evidence to that adduced at trial. I address later in these reasons whether that additional evidence is 'new' or 'fresh' evidence.
2. The appellant's counsel on appeal was different to the appellant's trial counsel. Also, by the time of the hearing of the appeal, the appellant's solicitors were different to those who represented him at trial.
3. The appellant contends that the additional evidence, taken together with the evidence at trial, gives rise to a different innocent hypothesis to that suggested at trial. The new innocent hypothesis, which I will call the appeal hypothesis, is directed to whether there is a reasonable possibility that the cable was not in fact severed by the time it was first observed by the employees. It will be recalled the appellant did not contest that issue at trial.
4. The appeal hypothesis is as follows. On the morning of Monday, 16 November 2021 the three employees noticed that the cable was damaged, but not severed. One of the employees, Mr Hawkins, then cut the cable to undertake a 'controlled repair'. The three employees then collectively made up a story that the cable was severed when each first observed it, and then knowingly gave false evidence at trial to that effect. The appellant contends those employees did so in order to cover up damage that was, or might have been, caused to the cable by the unsafe lift on the Friday. To be clear, the appeal hypothesis was not put to any of the three employees at trial. Instead, their cross‑examination was conducted on the basis that the cable was severed when each first observed it.
5. The appellant also contends that the additional evidence impugns the credibility of the evidence of the three employees who observed the cable on the Monday morning, each having given evidence to the effect that the cable was not in one piece when they first observed it on the Monday morning.
6. As a consequence of these matters, the appellant puts forward two propositions. First, the appellant contends that having regard to the additional evidence and the evidence at trial, there is a reasonable doubt as to whether the cable was severed when it was first observed by the employees. Second, the appellant contends that there is a significant possibility that if the additional evidence was adduced at trial, the learned magistrate would not have been satisfied beyond reasonable doubt that the cable was severed when first observed and thus there is a significant possibility the learned magistrate would have acquitted the appellant.
7. There are two principal bases put forward by the appellant for the positions that he advances on appeal.
8. The appellant contends that the evidence adduced on appeal demonstrates that if the appellant had cut the cable as alleged, the cable could not have been repaired in the manner described by Mr Hawkins in his evidence, and further, that the CCTV footage does not depict the repair of an already severed cable.
9. Specifically, the appellant says that if the cable had been severed, it would have retracted onto the drum reel contained in the housing. And, the appellant says that in order to retrieve the cable from the housing, it would have been necessary to remove the housing cover. The appellant says (and the respondent accepts) that the housing cover was not taken off prior to repairs starting on the cable. Thus, the appellant says, it was not reasonably possible for the repair work to have been undertaken in the manner that it was if the cable had been severed. The appellant also says that the appeal hypothesis is supported by the CCTV footage, which the appellant says depicts Mr Hawkins cutting an intact cable. The appellant says it follows that the prosecution cannot prove beyond reasonable doubt the cable was severed by the time the employees first observed it, or there is a significant possibility the learned magistrate would not have been satisfied of that beyond reasonable doubt if the additional evidence was adduced at trial.
10. The second basis predominantly relies on six photographs of the cable that became Exhibits in the trial. The six photographs were initially tendered as Exhibit 2. Later in the trial clearer versions of the photographs were tendered as Exhibit 12. Mr Hawkins was taken to the photographs in his evidence. Mr Babich was taken to three of the photographs in his evidence. Mr Bentley was taken to one of them.
11. Ultimately, Mr Hawkins's evidence was that five of those photographs were taken before he started to repair the cable. Mr Babich accepted the proposition put to him in cross-examination that one of the photographs depicted a severed end of the cable. The questions asked of Mr Bentley in respect of the photograph put to him were predominantly for the quite limited purpose of Mr Bentley identifying where on the crane arm the cable was usually positioned.
12. Evidence has been adduced on appeal as to the times at which each of those photographs were taken. That evidence demonstrates that several of the photographs indicated the state of the cable during the course of the repairs, not when it was first observed.
13. The appellant contends that the additional evidence regarding the photographs, in the context of other matters pertaining to Mr Hawkins and Mr Babich, so undermines the credibility of their evidence as to result in a miscarriage of justice. The appellant says that as a consequence, the credibility of Mr Bentley's evidence is also undermined. The appellant also contends that his trial counsel would have conducted cross‑examination at trial on a different basis if the information as to the times at which the photographs were taken had been available at trial.
14. Broadly speaking, the respondent raises the following matters in answer to the appeal. First, that the expert evidence adduced on appeal demonstrates that it was possible to remove the cable from its housing using fingers or pliers to retrieve it via the aperture in the cable housing. Thus, the appellant's proposition that it was not reasonably possible for the repair work to have been undertaken in the manner that it was, falls away.
15. Secondly, while the evidence of the photographs might affect the credibility of Mr Hawkins' evidence, it does not impugn the evidence of the other two employees, Mr Babich and Mr Bentley, who gave evidence to the effect that the cable was severed when they first observed it.
16. The respondent also says that the additional evidence is not fresh evidence, but is new evidence and does not, when taken together with all of the evidence at trial, give rise to a reasonable doubt as to the appellant's guilt.

Expansion of the appeal in the appellant's closing submissions

1. Very belatedly, the appellant in his counsel's written closing submissions, sought to contend there was a miscarriage of justice irrespective of whether the additional evidence results in there being a reasonable doubt, and irrespective of whether the additional evidence results in a significant possibility the learned magistrate would have experienced a reasonable doubt if the additional evidence was adduced at trial. As I explain below, I am not satisfied that additional contention arises on the grounds of appeal, although I will still address it.

1. The appeal is brought pursuant to s 7(1) of the Criminal Appeals Act 2004 (WA) (CA Act), the appellant being a person aggrieved by the decision of the learned magistrate to convict him. An appeal may be made on grounds that include that there has been a miscarriage of justice.
2. Leave of this court is required for each ground of appeal. I must not give leave to appeal on a ground unless I am satisfied the ground has a reasonable prospect of succeeding, which requires that the ground have a rational and logical prospect of succeeding.[5]
3. Section 14 of the CA Act sets out the options available to me in deciding the appeal. These include dismissing it or allowing it. Further, pursuant to s 14(2) even if a ground of appeal might be decided in favour of the appellant, I may dismiss the appeal if I consider that no substantial miscarriage of justice has occurred. The respondent does not seek to rely on s 14(2).

1. Pursuant to s 40(1)(e) of the CA Act, an appeal court has the power to admit additional evidence. Section 40 applies to all criminal appeals under the CA Act.
2. There is a distinction between additional evidence that is classified as fresh evidence, and additional evidence that is classified as new evidence.
3. In Grewal v Director of Public Prosecutions for Western Australia,[6] I explained that distinction by reference to the decision of Buss P in Clarke v The State of Western Australia as follows:[7]

Fresh evidence is evidence that either did not exist as at the date of the trial or could not, with reasonable diligence, have been obtained or discovered for use at the trial. New evidence is evidence that could, with reasonable diligence, have been obtained or discovered for use at the trial. Further, Buss P explained that ordinarily the relevant common law principles in respect of fresh evidence set a lower threshold for an appellant to establish a miscarriage of justice, compared to the relevant principles in respect of new evidence.

While Clarke concerned an appeal from a conviction after trial by jury, in my view the observations made regarding fresh and new evidence also have application to an appeal from a conviction after a trial by a magistrate. Adopting that approach, in respect of an appeal from a conviction by a magistrate, ordinarily an appellate court will not allow the appeal on the basis of fresh evidence unless there is a significant possibility that on the basis of all of the admissible evidence, that is the fresh evidence and the evidence given at trial, the appellant would have been acquitted.

(footnotes omitted)

1. In Clarke, Mitchell JA observed in relation to the application of the common law principes touching upon the distinction between new and fresh evidence as follows:[8]

In Rinaldi v The State of Western Australia, the court held that the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion. However, the court observed that the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.

(footnotes omitted)

1. As to the characteristics of fresh evidence, in Clarke, Buss P observed in respect of an appeal from a jury verdict of guilty:[9]

[The fresh evidence] must also be credible in the sense that a reasonable jury could accept it as true (but it is not necessary that the appellate court should think it likely that a reasonable jury would believe it) or be sufficiently cogent and plausible to lead a reasonable jury to have a reasonable doubt as to the appellant's guilt (although the reasonable jury might not necessarily prefer it to other evidence with which it is inconsistent).

1. I consider his Honour's observations concerning the credibility, cogency and plausibility of fresh evidence apply to any additional evidence adduced on appeal from a magistrate's verdict of guilty, replacing the words 'reasonable jury' in the passage with 'the trial magistrate'.
2. If the additional evidence is 'new evidence', then ordinarily, there will not be a miscarriage of justice unless the new evidence establishes that the appellant is innocent or the new evidence raises such a doubt that the court is satisfied that the appellant should not have been convicted.[10]
3. In Ratten v The Queen, Barwick CJ, with whom McTiernan, Stephen and Jacobs JJ agreed, summarised the task before the court as follows:[11]

To sum up, if the new material, whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not so convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court's view is properly capable of acceptance and likely to be accepted by a jury, and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.

1. Barwick CJ also observed that a criminal trial:[12]

... will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.

1. In circumstances where the additional evidence is characterised as 'new', such evidence is unlikely to meet the requirement of establishing an appellant is innocent, or raise such doubt that the appellant should not have been convicted, if it relates only to issues of credibility.[13]

1. The appellant relied on the decision of the Court of Appeal in Hillstead v The Queen[14] in support of the proposition that there may be a miscarriage of justice irrespective of whether the additional evidence gives rise to a reasonable doubt, or to a significant possibility that the appellant would have been acquitted if the additional evidence had been adduced at trial.
2. Hillstead needs to be considered in light of its particular facts.
3. The appellant (Mr Hillstead) was found guilty of murder after trial before a jury. The deceased died as a result of multiple blows to the head with a weapon. The deceased was in his bed at the time that the blows were struck. The blows caused a splattering of blood onto the walls of the bedroom. There was a photograph on the bed. Two fingerprints were detected on the photograph, and a palm print was detected on a shelf above the bed. The prosecution led expert evidence at trial from a police forensic investigation officer that the finger and palm prints were those of Mr Hillstead, and that the hand and fingers imparting the print had blood on them when they touched the photograph and shelf respectively. The forensic investigation officer also said this blood was imparted on those items contemporaneously with the blood being shed by the deceased.
4. Mr Hillstead gave evidence at trial denying that he struck the blows. He said he went into the bedroom on two occasions. On the second occasion, he touched the body to confirm the deceased was dead, and then stood on top of the bed to search the shelf above the bed for photographs which belonged to Mr Hillstead.[15] Aside from that aspect of the forensic evidence, the evidence from the remaining prosecution witnesses was potentially consistent with Mr Hillstead's account.[16]
5. The forensic evidence was not challenged at trial, nor did the appellant's trial counsel obtain expert evidence on that topic. The forensic evidence was powerful evidence rebutting Mr Hillstead's account of what he said happened.
6. After trial, Mr Hillstead's legal representatives obtained an expert report to the effect that it was not possible to determine when the blood was deposited onto the shelf and photograph.[17] Further, after trial, the forensic investigation officer who gave evidence at trial provided a further statement in which he said that if he had been asked in cross-examination if it was possible that Mr Hillstead had placed his fingers in the victim's blood some hours later and subsequently deposited bloodstained fingerprints on the surfaces of the shelf and photo, he would have conceded that as a possibility.[18] On the appeal, trial counsel conceded that his failure to challenge the forensic evidence regarding the finger and palm prints was 'an appalling oversight'.[19]
7. Three separate judgments were delivered in Hillstead. Each member of the court found that the further evidence was new, not fresh, evidence.
8. Wheeler JA found that the new evidence did not show Mr Hillstead to be innocent, nor lead to such a doubt that the verdict should not be allowed to stand.[20] Her Honour said there was a serious oversight by counsel, leading to the new evidence not being available at trial. Her Honour concluded there was a miscarriage of justice by reason of the actual unavailability of the evidence at trial, and the unusually critical and compelling nature of the evidence at trial as to the finger and palm prints.
9. Roberts-Smith JA held that the failure of counsel to challenge the evidence at trial was an appalling oversight.[21] His Honour said that 'it is simply impossible for this Court to say what view the jury would have taken of [Mr Hillstead's] testimony'.[22] His Honour held that the new evidence was not such as to raise a doubt about Mr Hillstead's guilt in the sense that it either showed Mr Hillstead to be innocent or raised such a doubt about his guilt in the mind of the court that the verdict should not be allowed to stand. His Honour said that the judicial pronouncements on the test to be applied with respect to new evidence are predicated on a conviction which is '... regularly obtained after a fair trial'.[23] In this respect, his Honour referred to the statement of Mason J in Lawless v The Queen:[24]

If the evidence newly adduced falls short of establishing that the accused should not have been convicted, there is no overwhelming reason why the conviction, regularly obtained after a fair trial should not be allowed to stand.

(emphasis added)

1. Roberts-Smith JA ultimately found that:[25]

The evidence which was crucial to the appellant's credibility at trial is now shown to have been critically flawed; there is necessarily relevant unfairness in the appellant's guilt being determined by the jury on a demonstrably false basis, however occasioned. That being so, the conviction must be quashed.

1. Pullin JA held that the forensic investigation officer's written report prior to trial did not explain the basis for the opinion that the deposition of blood occurred contemporaneously with the victim's death. Thus, the report contained an unproved assertion. His Honour also said that while the forensic investigation officer gave a reason for that opinion in his oral evidence, that explanation did not provide the jury with sufficient criteria to test the accuracy of the opinion.[26] Having regard to these matters, his Honour found that cross-examination on the topic at trial may not have been wise, and that trial counsel's concession that he overlooked cross-examination was irrelevant.[27] His Honour also held that given the forensic investigation officer's new evidence, the only conclusion that can be drawn is that the forensic investigation officer's opinion evidence given at trial was not an unqualified opinion and that should have been disclosed by the officer prior to trial.[28]
2. Ultimately, his Honour found that the new evidence and its effect raised 'such a doubt about his guilt in my mind that the verdict should not be allowed to stand'.[29] This finding reflects the orthodox formulation of when new evidence will result in an appeal being allowed.
3. The effect of the judgments of Wheeler and Roberts‑Smith JJA is that in circumstances where there is a serious oversight by trial counsel, and where the new evidence alters the unqualified nature of critical evidence given at trial, there can still be a miscarriage of justice even though the new evidence does not show the appellant to be innocent and does not lead to such a doubt as to his guilt that the verdict should not be allowed to stand.

1. The conduct of the trial by the appellant's trial counsel is a further matter that I take into account.
2. In CGF v The State of Western Australia, Mazza JA observed that:[30]

An accused person is, ordinarily, bound by the forensic choices made at trial. An appeal is not an opportunity to attempt to re-run a trial in a manner which, with the benefit of hindsight, the offender wishes he or she had run at first instance.

1. Further, in Sturniolo v The State of Western Australia, the Court of Appeal in a joint judgment observed that:[31]

An accused person must bear the consequences of their decisions as to the calling and treatment of evidence at the trial. In this respect, the general precept applies, namely that with confined exceptions, a person is bound by their counsel's conduct of the trial.

(footnotes omitted)

1. In light of additional material obtained since trial, the appellant has suffered a substantial miscarriage of justice and the verdict should be quashed without more.
   1. There is significant and reasonable doubt that photographs adduced in the trial are photographs showing criminal damage to the crane's retractor cable.
   2. The credibility of prosecution witness, Brett Hawkins, who gave evidence about said photographs can no longer be relied upon.
   3. The evidence of prosecution witnesses Brett Hawkins, Ben Bentley and Mark Babich who gave evidence about observing a criminally damaged retractor cable prior to it being repaired can no longer be relied upon as truthful witnesses.
   4. It is not possible for the retractor cable to have been repaired in the way it was if it in fact has been criminally damaged as alleged.
2. In light of additional material obtained since trial, the appellant has suffered a substantial miscarriage of justice.
   1. There is significant and reasonable doubt that photographs adduced in the trial are photographs showing criminal damage to the crane's retractor cable.
   2. The credibility of prosecution witness, Brett Hawkins, who gave evidence about said photographs can no longer be relied upon.
   3. The evidence of prosecution witnesses Brett Hawkins, Ben Bentley and Mark Babich who gave evidence about observing a criminally damaged retractor cable prior to it being repaired can no longer be relied upon as truthful witnesses.
   4. It is not possible for the retractor cable to have been repaired in the way it was if it in fact has been criminally damaged as alleged.
   5. The totality of the above if presented at trial is cogent and credible and thereby likely to have caused a different verdict, namely an acquittal.
3. The grounds fit within the orthodox formulation as to the circumstances in which evidence characterised as fresh, or new, will result in an appeal succeeding. Ground 1 is to the effect that the additional evidence raises such a doubt about the appellant's conviction that the verdict should not be allowed to stand. Thus, consistently with the approach outlined by Barwick CJ in Ratten (see [47] above), Ground 1 asserts there is a miscarriage of justice irrespective of whether the additional evidence is new or fresh. Ground 2 is to the effect that if the additional evidence was adduced at trial, it would have likely resulted in an acquittal. Thus, it is predicated on the premise that the additional evidence is fresh.
4. In respect of a possible ground predicated on the decision in Hillstead, the appellant's counsel frankly accepted in her written closing submissions that this 'is an issue the appellant failed to contemplate as a possibility in any of its submissions to date...'.[32] As I will come to explain, an expanded contention was also put in oral submissions that the appellant had suffered a miscarriage of justice by reason of losing the opportunity to rely on the additional evidence at trial.
5. The appellant did not seek to amend his grounds to include a ground based on the decision in Hillstead. Rather, the appellant submits that the existing grounds are sufficient. I disagree. The appellant's expanded argument proceeds on the premise there can be a miscarriage of justice even if the additional evidence neither gives rise to a reasonable doubt, nor to a significant possibility that the appellant would have been acquitted.
6. That proposition does not sit within the framework of Grounds 1 and 2 as I have explained them at [67] above. Nonetheless, for completeness, I will still address the appellant's expanded argument as substantial submissions were made on that topic.
7. The appellant does not assert that there has been a miscarriage of justice by reason of how trial counsel conducted the trial. Rather, as I will come to explain, the appellant submits it was rational for the appellant's trial legal representatives not to have considered the appeal hypothesis prior to trial, and therefore not to have advanced the appeal hypothesis at trial.
8. I accept that the appeal hypothesis was not advanced at trial. However, the evidence before me does not demonstrate that the appellant's trial legal representatives had not considered, and discounted, the appeal hypothesis. In that respect, the appellant has not put on any evidence directed to that question. That absence of evidence is relevant to an assessment of whether the additional evidence is new or fresh, and is also relevant to an assessment of the appellant's loss of opportunity contentions.
9. It is useful at this point to summarise the evidence given at trial and the learned magistrate's reasons. It is necessary to do so in some detail, given the matters raised by the grounds of appeal, and by the appellant in his counsel's submissions.

1. To assist in understanding the forensic rationale for the questions asked, the propositions sought to be advanced for the appellant at trial included that:
   1. The 'unsafe lift' occurred by reason of the chain sling on the crane arm coming into contact with steel rafters at a point when the arm was at, or close to, full extension.
   2. This contact caused vibration in the crane arm. That vibration transmitted to the cable and was capable of damaging the cable.
   3. There was insulating tape on the cable, which might suggest that the cable had previously been patched up or reinforced in places, thus suggesting a prior weakness in the cable.

1. Mr Price is a crane inspector. He described how on 20 October 2020 he inspected the crane the subject of this appeal. He said he found a few faults with the crane. He described these as minor faults.[33] The faults that he identified did not relate to the boom retractor cable.
2. He described that the function of the boom retractor cable is to send signals back to the computer, tell the computer where the boom is extended to and the angle it is at, and to tell the computer anything else it needs to calculate the load the crane is capable of lifting.[34]
3. Further, he said the boom retractor cable is not load bearing and it just runs along the side of the boom itself.[35] He also said that the cable has its own reel and as the boom extends out, the cable goes out with it and as the boom retracts, it pulls that cable back in.[36] He said that the reel is kept under tension with a spring-loaded retractable reel.[37]
4. In cross-examination, Mr Price was shown a number of photographs of the crane, including a photograph that depicted insulation tape wrapped around a part of the cable.[38] The learned magistrate asked whether the cable is normally wrapped in insulation tape. Mr Price answered that on some places where it may rub, it is protected with rubber or insulation tape.[39]
5. In cross-examination, Mr Price said that he did not recall seeing the insulation tape on the cable when he inspected it on 20 October 2020.[40]
6. Mr Price agreed that if he had seen insulation tape on the cable, he would have wanted to have known why.[41] He said he would have wanted to have known whether the insulation tape was a temporary fix covering up damage to the cable.[42]
7. Mr Price described how the boom retractor cable is attached to an anchor point on the side of the boom.[43] Mr Price also described how the boom retractor cable has to go through eyelets beside the boom.[44]
8. Mr Price said it was not a major repair at all to replace the entire cable.[45]
9. Mr Price gave evidence that in the years 2017 to 2020, there was no entry or record in the crane inspection reports relating to a fault in the boom retractor cable, or the replacement of the boom retractor cable.[46]
10. Mr Price said the crane in question was manufactured in 1997.[47]
11. Mr Price accepted that the manual for the crane stipulated that the cable should be replaced every four years.[48] The manual for the crane set out that some crane components undergo deterioration and set out a table as to the frequency with which they must be replaced.[49] Mr Price said that the reference in the manual to replacing the cable was a reference to a wire rope for boom telescoping, which is inside the boom.[50]
12. Mr Price said that a good portion of the cable is housed in the reel. He agreed that the other end of the cable is situated at the end of the boom.[51]
13. Mr Price said to his knowledge there was no recommended timeframe on a replacement of the retractor wire rope reel.[52] Mr Price was cross‑examined on the requirement for there to be a 10 year major inspection report done in respect of the crane. He explained that 10 years means the operational life of the crane, not its calendar life.[53] His 2020 report for the crane noted that the 10 year major inspection report was not sighted by him on inspection.[54]
14. Mr Price was taken to a photograph of the unsafe lift and accepted that it showed the chain sling was in contact with the steel rafter. Mr Price said that could cause vibration in the crane boom.[55] Mr Price also accepted this would cause the cable to vibrate, however he did not accept it would cause high stresses in the cable.[56]
15. Mr Price accepted that if the cable had been patched up or reinforced in places with insulating tape, it was a possibility that the cable could have snapped or been weakened or further weakened during the unsafe lift.[57]
16. He said that in testing the integrity of the signal to the computer during his inspection, he did not notice any degraded performance that would indicate there was a potential fault in the boom retractor cable.[58] He said that if there was partial damage to the cable, he would expect that it would show up during his inspection.[59]

1. Mr Babich was a supervisor rigger who had worked for the owner of the crane since 2006.
2. On Friday 13 November 2020, Mr Babich was working as a crane driver using the crane the subject of the charge against the appellant.[60]
3. Mr Babich described how the cable is the boom length indicator, it feeds off a spool and 'it will tell you how much boom you have got up in the air'.[61]
4. He said on Monday 16 November 2020, he became aware of damage to the cable.[62] He described the damage as follows:[63]

The damage was this boom length indicator that tells you how much boom you've got out, which runs up the side, connects to the very top of the crane, was - well, it was cut at the top.

1. He went on to say that it was cut 'right at the very tip where it attaches to the - to the very top of the crane', that being at the end of the boom.[64]
2. He described how an unsafe lift had occurred on the Friday. He explained how a steel beam was being lifted up, and the chains holding the steel beam were rubbing and resting against an upper steel beam of the structure that was in place. He said this could affect the treatment of the steel and that you could get some wear on the chains.[65]
3. He said the steel beam was lowered and placed back on the ground while they worked out a better method of lifting it.[66] Mr Babich said that if the damage to the cable had occurred at any stage prior to the crane being packed away, there is no way you would be able to lower the boom down into position as the computer would have gone into error.[67]
4. He was taken to the CCTV footage from Monday 16 November 2020, where the crane was being driven back into the work area. He said he was pretty sure the person driving the crane was Mr Ben Bentley. He said a Mr Brett Hawkins, who is a rigger and mechanic was also there. He was asked which people were working there on the Monday and he said himself, Mr Bentley and Mr Hawkins.[68]
5. He was taken to the CCTV footage which had a time stamp of 08:20:25. He was asked to explain what was happening. He said that Mr Bentley had done a pre-start check on the crane and realised that the wire was not connected anymore at the front of the crane. Mr Babich said he was driving past, he got out of his ute and then Mr Hawkins and Mr Bentley called him over. Mr Babich said he had gone to assess the damage.[69]
6. He was taken to the photograph which was Exhibit 2.4 in the trial and said it showed the point where the wire had been cut. He said the correct name for it was the boom length indicator wire. He said that Mr Hawkins took that photograph.[70]
7. He was asked what he observed about the damage to the cable. He said on close inspection he noticed a cut, which he described as a neat, tapered cut, 'which [he] had seen plenty of times with a plier sort of cut'.[71]
8. Mr Babich was asked to describe what had happened that morning. He said that Mr Bentley did a pre-start check on the crane, where it was parked over the weekend. He said Mr Bentley had noticed 'that the cable had been damaged or was not there anymore. It had retracted'.[72]
9. Mr Babich was asked what he could see when he looked at the crane. He said '[o]bviously we could see that the wire was no longer there'.[73] He described how his first thought was that something had possibly hit it, and then said:[74]

But there was no visual damage or paint missing that something could have hit it and just where the cut was in relation to that little eyelet guide... was quite close to it and it couldn't actually be crushed or pushed into the crane as such, into the boom so there was no pinch point area for anything to have hit it and caused damage.

1. He expanded on this evidence as follows:[75]

So first thought was, yes, obviously I thought maybe something had hit it but it was too far, that possibly couldn't - the wire couldn't hit anything. There was nothing close enough in the proximity to - for it to be crushed against. And also I had seen, for example, a lead or a wire that had been crushed or - on site before where the damage is quite torn, sort of, looked and the exposed wires as such, it wasn't - it was a clean - clean cut which then prompted me that something had cut this, like pliers, was straight to my mind just by the clear cut and the chamfer nature of the wire end itself.

1. Mr Babich, in cross-examination, described the unsafe lift as 'chains rubbing against the beam'.[76] Mr Babich also accepted that an unsafe lift had been called on the Friday and said that the chain was snagged over and rubbing on the horizontal beam.[77] He also accepted that this can cause vibration of the boom.[78]
2. The proposition was put to him that the vibration would have caused the boom retractor cable alongside that boom to have vibrated at the same time, which he did not dispute.[79]
3. Mr Babich gave evidence that if the boom indicator wire was cut or severed, it would retract into the drum and spool.[80]
4. Mr Babich accepted the following proposition put to him by the appellant's trial counsel. Mr Bentley went to collect the crane, brought it back to site, drew to the attention of Mr Babich and Mr Hawkins that he could not see the boom retractor cable, and that Mr Babich then got out (from his ute) and they all stand around and have a look.[81]
5. Mr Babich was taken to the photos which were Exhibit 2, of which clearer copies became Exhibit 12 at the trial. Mr Babich said that he was 'pretty sure' Mr Hawkins took the photographs.[82]
6. In relation to Exhibit 2.1, he agreed with the proposition put to him that it depicted one of the severed ends of the cable.[83] The following exchange then took place:[84]

And that's the end - that's the severed end - one of the severed ends of the boom retractor cable, is it?‑‑‑I can't see the - yes, it is. Sorry, I'm looking at it the wrong way. Yes. Correct. Right there is the end. Yes.

Good. We're there. And it's your evidence, is it, that that was a clean cut or a - I think you said something - it's not a term I'm familiar with - a chamfered?‑‑‑Yes. It was just a nice, chamfered cut, where I've - if you've ever cut something with a pair of plyers you end up with a neat sort of chamfered cut, which is ‑ ‑ ‑

So in your opinion it was a chamfered cut, when you looked at it?‑‑‑Yes. You can see that that's still completely round, where it hasn't had an impact or no - no fraying or - so it hasn't been a blunt object, or it hasn't worn.

It hasn't been a blunt object?‑‑‑It hasn't worn. It's just a nice clean ‑ ‑ ‑

How do you exclude the fact that that has snapped?‑‑‑How do you?

Exclude the fact, from looking at it - thinking back to looking at, that it snapped?‑‑‑You would have - if it had snapped, I would guess, as if something had worn it out or something had stretched it, you would end up with - if it had been stretch snapped, you would have - like I've seen leads or wires snapped before, you would end up with bits of wire hanging on.

Well, you haven't seen a boom retractor cable snapped before, have you?‑‑‑I haven't.

1. Mr Babich was then taken to the photo which was Exhibit 2.6 and the following exchange took place:[85]

And what we can see there, I suggest, is one end of the boom retractor cable; agree?‑‑‑Yes. I'm ‑ ‑ ‑

Agree?‑‑‑I can't see that it has been cut, anymore.

No?‑‑‑So ‑ ‑ ‑

Exactly. It doesn't look like it has been cut, does it?‑‑‑Not ‑ ‑ ‑

It looks like it has frayed?‑‑‑Not in this ‑ ‑ ‑

‑ ‑ ‑ and worn?‑‑‑I don't know what I'm looking at exactly. Which end or what it is there that's ‑ ‑ ‑

All right. Well, let's just be precise here. Sorry, Mr Usher. I don't mean to ‑ ‑ ‑?‑‑‑I'm just ‑ ‑ ‑

All right. What we've got here - and I'm holding it up so that we can all see, exhibit 2.6. We can see the yellow of the boom anchor?‑‑‑Yes.

Okay. And that's towards the tip of the boom. Okay. And one end of the boom retractor cable attaches to that. Yes. The other end is closer to the cab in the reel?‑‑‑Yes.

Okay. And what we've got there, I suggest, highlighted neatly in quite a clear photograph, is one end of the boom retractor cable. Can you see it?‑‑‑Yes.

And it doesn't look like a clean cut, does it?‑‑‑Not on that shot. No.

It doesn't look like a clean cut, does it?‑‑‑No. Not on that shot. No.

No. Well, who were these photographs taken by?‑‑‑Brett Hawkins.

Right. At the time that this was first discovered, on Monday the 13th?‑‑‑Yes.

Monday the 16th, sorry?‑‑‑Yes.

All right. Well, how do you explain that?‑‑‑I'm not sure. I'm just going by what I saw on the day.

All right?‑‑‑So that's just a ‑ ‑ ‑

But you accept this is a photograph taken that day ‑ ‑ ‑?‑‑‑Yes.

‑ ‑ ‑ by a colleague?‑‑‑Yes.

‑ ‑ ‑ in your presence?‑‑‑Yes.

‑ ‑ ‑ with the purpose of illustrating what you had found?‑‑‑Yes.

‑ ‑ ‑ so it could be looked at subsequently?‑‑‑Yes.

And it doesn't look like a clean cut, does it?‑‑‑Well, not in that shot, if that's - that's the end. Is he just taking a photo of that adaptor pole.

It doesn't look like a clean cut, does it?‑‑‑No

1. The cross‑examination of Mr Babich focused on whether or not the cable could have snapped, as opposed to being cut. It was not put to him that the cable was in place when he first examined the crane. Rather, the cross-examination proceeded on the premise that the cable had separated when Mr Babich first observed it. Mr Bentley was not cross-examined as to the steps taken by Mr Hawkins to retrieve the cable end from the aperture in the drum housing.

1. Mr Bentley described how he had worked as a rigger for three years with Hotweld, the owner of the crane. The role of a rigger involved receiving the steel coming off the crane.[86]
2. He said that on Friday 13 November 2022, Mr Babich was operating the crane.[87] Mr Bentley explained how a lift was 'flagged' as Harvey Beef, whose building was being constructed, was unhappy with how the load was rigged. The lift was cancelled, and the particular beam put down and it was not lifted again that day. This was because the 'better plan' to lift that particular beam required additional equipment that was not on site that day.[88] He said he did not operate the crane on the Friday.[89]
3. He described how on the Monday morning he gave the crane a pre-start check.[90] He was asked if anything struck him as unusual and he said:[91]

On the front of the boom on this - as it was - the boom length cable just wasn't there.

1. He repeated this answer a few questions later.[92]
2. He was taken to Exhibit 2.3 for the purposes of identifying which part of the crane he was referring to when he said the cable was not there. He said that none of the tools seen in that photograph were there when he first looked at the crane. He explained there was a small opening in the drum that stored the cable and the cable goes in and out of that opening. He also explained that the cable goes through the eyelets shown on the picture and connects at the front.[93]
3. He said that the boom is bright yellow, and the cable is black. He described it as being 'blatantly black against yellow'. He agreed with the proposition that the cable was easily identifiable.[94]
4. He was asked whether he could see any part of the cable there at all and he said that it was a 'glance thing' for him. He noticed that it was not there and that was not normal but he did not spend much time looking over it closely.[95]
5. He said that despite the absence of the cable, he still went through his pre-start. He did not notice any damage to the crane or to the boom.[96]
6. He said that he walked back to the work area because he noticed the 'cable was missing'.[97] He said he walked out to tell his supervisor, Mark (Babich), that the crane was 'no go'.[98] He said as he walked out to do so, he saw Mr Babich 'sort of waving, like, 'Come on. Hurry up. Let's go. Let's get into the day'.'[99]
7. Mr Bentley said he then got back into the crane and drove it to the work area. He said nothing unusual happened, also saying that he had not turned on any computers in the crane, so it 'just drives as it was a car'.[100]
8. He was cross-examined regarding the unsafe lift. He accepted there was friction between the chain and the beam it came into contact with. It was put to him that this would cause the boom to vibrate and he said, 'Very minimally, but yes.'[101]
9. Mr Bentley said that he drew the missing cable to the attention of Mr Babich.[102]
10. Mr Bentley accepted that Mr Hawkins took the photographs of the damage to the cable.[103]
11. Mr Bentley said he did not look at where the cable was severed. He agreed with the following proposition put to him regarding the cable - he noted a missing boom retractor cable, he drove the crane back around and he 'left it to the others to actually look at it up close'.[104]
12. He said that he thought Mr Babich rang their boss, Mr Casagrande, to tell him about the cable, however he did not overhear the conversation.[105]
13. He said that Mr Hawkins repaired the cable. Mr Bentley said he was unsure how he fixed it, and did not see how Mr Hawkins fixed it. He said that a 'running repair' was done. He also accepted that the running repair took a little bit of time to effect.[106]
14. His evidence that he observed the cable was 'not there' while conducting his pre-start check was not challenged in cross-examination. Mr Bentley was cross-examined on the premise that the cable had already separated by the time Mr Bentley was conducting the pre-start check. Mr Bentley was not cross-examined as to the steps taken by Mr Hawkins to retrieve the cable end from the aperture in the drum housing.

1. Mr Satie is the safety and training manager at Harvey Beef in Harvey, Western Australia.
2. His evidence was directed to the nature of the unsafe lift that occurred on the Friday. He gave evidence that he observed that one of the chains being used to lift the new steel beam was dragging across a steel beam that had already been bolted into place. He took photographs of this, which became Exhibit 3 in the trial.[107]
3. It was put to him in cross-examination that what happened in effect was a chain rubbing on a horizontal steel beam, causing vibration. Mr Satie said that he did not see any indication of vibration.[108]
4. Mr Satie said that the chain rubbing on the steel girder would cause some vibration and that will travel along the length of the chain. He did not accept this would travel onto the boom, saying 'I don't imagine that there would be much effect onto the boom'.[109] Mr Satie appeared to accept that there would be some vibration through to the boom, however also said that he did not witness anything like a vibration that gave him 'rise for concern'.[110]
5. It was put to him that he was saying that the boom wasn't vibrating such that it caused him concern, and he said that was correct.[111]

1. Mr Brett Hawkins is a mechanic employed by HotWeld.
2. He had been a mechanic for 24 years and had been employed by HotWeld (the owner of the crane) for a little over six and a half years by the time he gave evidence. He had been operating HotWeld's cranes for about five and a half years.[112]
3. He explained that on Monday 16 November 2020 he was at Harvey Beef. He said his job was to go down to the site and prepare the area for the crane to come down and be set up. He said that once the crane was brought down from the lay down area, he pointed out some damage to the crane.[113]
4. Mr Hawkins said the people with him from HotWeld were Mr Bentley and Mr Babich. He said that they looked over the crane for any more damage and there was not any more damage. He was asked to identify the component of the crane that was damaged and said that the boom length indication cable, which runs from the head of the boom down to the reel, had been 'cut, severed'.[114]
5. He was asked to identify the damage to the crane. He said the boom length indication cable which runs from the head of the boom down to the reel had been 'cut, severed'.[115]
6. Mr Hawkins was shown the six photographs in Exhibit 2. He said he took those photographs. The following exchange then occurred with him:[116]

Okay. And that was at the time when you inspected the crane on Monday, 16 November? - It was, yes.

Okay. And this was prior to any repairs that you conducted? - It was, yes.

1. The learned magistrate then clarified that all photographs were taken prior to any attempt to repair, and Mr Hawkins said yes. The learned magistrate sought confirmation that Mr Hawkins took the photographs and Mr Hawkins said he took the photographs.[117]
2. He was taken to the photograph which was Exhibit 12.4 and was asked what he noticed about the damage depicted in that photograph. He described the damage as being a very clean cut and also that it was close to other mechanical parts of the crane which showed no damage at all.[118] He was then taken to the photograph which became Exhibit 12.1. He described the photograph as depicting the end of the cable that runs from the cut end depicted in Exhibit 12.4.[119]
3. Mr Hawkins described that in relation to that end of the cable:[120]

[I]t was a very clean - clean cut, break. It showed no signs of impact, even as far as stretching or like a pulling motion. There was definitely no frayed wire[s]. It had been cut with something sharp.

1. Mr Hawkins was then taken to the photograph at Exhibit 12.2. The following exchange then took place in relation to that photograph:[121]

Now, I believe on that picture there, if you can just describe to his Honour what you're seeing at that point?‑‑‑Okay. So the cable is secured here. The first eyelet is just here and then the cable has been - been severed just - just past the eyelet on that left-hand side there.

Okay?‑‑‑I've got the cable here which I - it appears to me has - I've already run it through - I needed to tie it off to - to get some length and - and so it didn't retract back into the reel.

So just in relation to - I guess to explain for the purpose of the transcript there, we're looking at the - the head of the crane or where the ‑ the ‑ ‑ ‑?‑‑‑Yes, that's the crane boom.

Yes?‑‑‑And the end of the - end of the boom is just - just out of picture on the right-hand side.

Okay then. So that shows where the damage has occurred, the - where the eyelet is?‑‑‑Yes.

And you said that you've tied the cable off during your inspection; is that right?‑‑‑Yes. I pulled the cable through because it wanted to retract back into the reel.

Okay then. And that was when - and then, by doing that, it allowed you just to stand back and take that photograph?‑‑‑It did, yes.

HIS HONOUR: So you pulled the cable through and you tied it off, did you?‑‑‑Yes. It's - yes. So I've pulled the cable through, through the eyelets and I've had to tie it off to stop it retracting back into the reel.

1. He was then taken to the photograph at Exhibit 12.3. He said, 'you can just make out the cable laying down onto the front of the crane'. The following exchange then took place:[122]

So when you say that it had retracted, is that the distance that it had retracted back into it. Couldn't go any further from that point?‑‑‑Yes. The - so the spring - the retraction spring obviously had lost its tension by that point and wouldn't retract any further.

1. Mr Hawkins was then taken to the photograph at Exhibit 12.6. He said it depicted the anchor point at the end of the boom for the cable. He said he had pulled it out of the eyelet so he could fold the cable back to get a better photograph of it.[123]
2. In respect of the insulation tape that is visible in Exhibit 12.4, Mr Hawkins said:[124]

That there would be there for insulating the cable from any sort of possible damage as far as running through the eyelet, especially when traveling on the road. The cable tends to bounce around and that's to protect it as well as the little bit of grease that's around the eyelet as well.

1. Mr Hawkins said he had been doing repairs on the crane since he started at HotWeld, about six and a half years ago. He was asked whether he ever had to repair the boom retractor cable at all and he said no. He also said he was not aware of any damage at the location where the insulation tape was placed on the cable.[125]
2. He said that the crane was purchased 'probably a year after [he] started' with HotWeld. He said the insulation tape was on the cable when the crane was purchased.[126]
3. Mr Hawkins said that after he identified the cable had been broken, he rang Graham Mogg who does some of the crane maintenance. Mr Mogg suggested doing a temporary repair so they were able to operate the crane for the day.[127]
4. He described that process as follows:[128]

Okay then. And then did you do - what did you do after that?‑‑‑So with the repair?

Yes, if you can just describe what you - how you effected that repair?‑‑‑So I've taken the - the short piece off that was anchored.

Yes. We will just - and now if you're just holding up?‑‑‑That photo ‑ ‑ ‑

‑ ‑ ‑ photograph number 4?‑‑‑Photograph 4. I've removed the short piece off the anchor point. I've then pulled the cable from the reel as in photo 1.

Okay. Now, we're - yes. And we're just looking at photograph ‑ ‑ ‑?‑‑‑Number 1.

‑ ‑ ‑ number 1, yes?‑‑‑Fed it through the eyelets, through - through the boom - ‑ ‑

Yes?‑‑‑ ‑ ‑ ‑ and I've then secured the cable off on one of the eyelets to allow me to make the repair.

Yes?‑‑‑And then tied it off, rejoined the cable up at the boom and then released what I've tied off to - to put tension back onto the cable.

Sure. And then did you have to do anything else in terms to make sure the crane was operational?‑‑‑Yes. So then we - we put the - put it into crane mode. There is a drive and a crane mode in the vehicle. Put it into crane mode. And what we had found was, when the cable retracted, it upset some of the gearing in the - in the indicator on the boom. And so we had to take the cover off, which you can see on photo 1, it's the outside cover which holds the electronic component, I suppose you would call it, and a series of gears. We had to reset those to read correctly for the - for the boom position.

1. Mr Hawkins said that when they first found the damage they put the crane into crane mode. He said there were numerous alarms and flashing lights and incorrect data on the computer screen in the crane.[129]
2. In cross-examination, Mr Hawkins said he was on site on Friday, 13 November 2020 to conduct a pre‑start check and deliver some goods. He said he believed he was not there after that.[130]
3. He said that on Monday 16 November 2020, he was on site where the crane was due to be set up. Mr Bentley brought the crane around and drew to his attention that the cable had been severed.[131]
4. He said as part of the preliminary checks, 'you visually check the cable'.[132]
5. He accepted that the cable had not been replaced while he had been employed at HotWeld.[133]
6. In relation to the insulation on the cable, he said that it 'has been there for as long as I can remember', also saying he believed that the insulation tape 'has been there the whole time'.[134] He said he had not undone that insulation to see if it was covering anything.[135] He accepted it was possible it could have been covering some fracture or damage in the PVC skin of the cable.[136]
7. He was taken to the photographs in Exhibit 12 which were clearer copies of the photographs in Exhibit 2. He said he took the photographs on his mobile phone.[137]
8. He said he gave his phone to the officers at the time, and they took the phone back to the station.[138] In relation to the photograph, which was Exhibit 12.1, he said that was the end of the cable coming out from the reel.[139]
9. In relation to the photograph that was Exhibit 12.2, he said it showed the severed end of the cable at the anchor end.[140]
10. In relation to the roll of black insulation tape shown in the photograph in Exhibit 12.3, he said that was preparing to make the repair. He said he had to splice the wires together and obviously tape them up.[141] It was put to him that he effectively spliced two ends of the boom retractor cable together and secured them with tape, which he accepted. He also accepted that this was a running repair.[142] He explained that the repair needs to be made on the non-tension side of the anchor point, so there is no string tension from the anchor point pulling on the repair.[143]
11. He was cross‑examined about the photograph which is Exhibit 12.6, it being put to him that it did not show a clean cut.[144] The following exchange took place:[145]

Well, if your purpose then was to show a clean cut, and that's the only reason you took the photo, and inadvertently, I think, as you're suggesting you got grease on the end of it, why didn't you wipe the grease off so that you could take a photograph for the purpose - the only purpose for which you were taking the photograph?‑‑‑Because I didn't want to have been questioned as to why I've cleaned the cable to take a photograph.

No but, you see, if what you say was the case, that there were clean cuts both ends, yes?‑‑‑Yes.

And all you were doing - you didn't have any idea at this stage why that was the case, did you?‑‑‑No.

I'm not suggesting you did. But your only purpose was to demonstrate that for a later analysis, etcetera, yes?‑‑‑I was you just recording ‑ ‑ ‑

Collecting evidence, yes?‑‑‑I was just recording photos for ‑ ‑ ‑

Yes, yes. So no - it can't have been in your mind that anyone was going to later accuse you of cleaning stuff and doing anything wrong?‑‑‑Well, it did.

(emphasis added)

1. The obvious effect of the italicised part of the above exchange was that the appellant's trial counsel accepted that Mr Hawkins had not been involved in cutting or severing the cable.
2. Ultimately in relation to Exhibit 12.6 it was put to Mr Hawkins that it showed a frayed end, not a clean cut end. His response was that 'If it was frayed, you would see exposed wires stretched'.[146]
3. In relation to the photograph which was Exhibit 12.2, Mr Hawkins accepted there were exposed wires at the end.[147] He said the photograph was taken during the repair. Mr Hawkins accepted that Exhibit 12.2 was not a photograph of how he found the cable.[148]
4. He was cross‑examined further on the photographs and said some of the photographs were of the damage as he found it.
5. Mr Hawkins was asked to put the photographs in the order that he took them and he said he was not sure of the order in which he took them.[149]
6. In relation to Exhibit 12.2, he said he believes that would have been once he started the repair, also saying that the photo shows he has pulled the cable to take a bit of tension on it.[150] He also accepted that it was possible that he had taken the end off the cable to facilitate splicing it.[151] He accepted his evidence was inconsistent with his prior statement in which he had said that he had taken photographs of the damaged cable, and accepted that his statement did not say that the photos also were taken after he had started working on it and repairing it.[152] He was asked whether Exhibit 12.2 was the only one taken once repairs were underway and he said he believed so and also he did not recall taking any more photos once he had started the repair. He repeated later that he believed that was the only photo taken during the repair.[153]
7. At the end of the cross‑examination, the learned magistrate asked a few questions regarding the location of the insulation tape compared to where he found the cable had been severed. Mr Hawkins said it was severed only about 50 mm from the insulation tape.[154] He confirmed that the only tape on the cable was that shown in the photographs.[155]
8. The learned magistrate then allowed trial counsel to ask some further questions in cross‑examination. Mr Hawkins said he did not see any tape on the location of the severed ends. He said when the boom of the crane is retracted, it is just under 6 m in length and from reel to anchor it would be about 4 m.[156]

1. Mr Mogg is a mechanic who then owned a business called Mobile Mechanical Air and had been dealing with cranes for over 27 years.[157]
2. Mr Mogg replaced the cable on the crane. He said he did so a few months later after the incident involving the cable.
3. He was asked to explain what he had to do and he said, 'remove the recoil unit from the side of the boom, remove the cable, replace the cable, reinstalled it, tested it'.[158] He expanded on this saying that he took the cover off and that inside there is a drum spring. He said the spring is contained. He removed the cable off the spring, resoldered a new cable and rolled the cable back on and then put it back together.[159] He was asked whether when he took the drum apart, there were any issues with it and he said no. He said it was in good condition.[160]
4. He was cross‑examined about his conversation with Mr Hawkins on the Monday. He said he had suggested to Mr Hawkins that he may be able to recover the cable from the drum and reconnect it.[161] Mr Mogg was cross-examined at length as to how the cable could have been repaired. He explained that there were two plastic sections within the cable. The first (outer) section contained braided wires, and the second (inner) section contained a number of thinner wires.[162] Mr Mogg said he had not previously mended the boom retractor cable.[163]
5. Mr Mogg said that the presence of black insulating tape on the cable could be the site of a running repair or it could be there for protection.[164]
6. In response to a question asked by the learned magistrate, Mr Mogg also said that the reel itself was in good condition.[165]

1. Mr Casagrande is a boilermaker and welder and is the owner of the business HotWeld Fabrication & Engineering. He has had that business for 20 years.[166]
2. Mr Casagrande was asked to explain what happened on 16 November 2020. He said he received a phone call from Mr Babich who informed him that something had happened on site. He clarified that what happened was that the crane that was onsite had a cable cut.[167]
3. He said that three to four weeks before, the crane had been subject to a CraneSafe independent inspection. He said there were four minor faults identified: the speedometer was not working correctly, there was a twist in the main cable, the battery isolator was faulty and there was a little bit of corrosion on the battery. He said he fixed these problems and the CraneSafe report was issued.[168] He explained he bought the crane about five years before and when he bought the crane, it was in 'very, very good condition'.[169]
4. Mr Casagrande explained that on 13 December 2021 Mr Ian Gregory attended to do an independent inspection on the crane.[170] He had with him Mr Nick Birks and Mr Trent Miller. During the inspection, they asked Mr Casagrande to give them all the documents he had for the crane and he provided them with all the documents he had for the crane, including the inspection reports.[171] He said they also asked for an override key for the crane. He said he did not have one. Further, to his knowledge an override key has never been used with the crane.[172]
5. Mr Casagrande was cross‑examined regarding the presence of black insulating tape on the cable. He said that was not brought to his attention and he had no idea how or why the tape came to be on the cable.[173]
6. Mr Casagrande could not say when the cable repaired on 16 November 2020 was replaced.[174]

1. Mr Ginn was called as an expert witness for the prosecution. Mr Ginn's report became Exhibit 15 in the trial.
2. Mr Ginn was a product support engineer for Tadano Oceania. At the time he gave evidence, his role was as an 'exfield service mechanic for the company'.[175]
3. Mr Ginn had extensive experience repairing the particular model of crane the subject of the charged offence.[176] In relation to the boom length reel, he explained that it:[177]

... is designed for measuring the overall boom length, which is then used and required for part of the calculation for the safe working limit and load of the crane ... and then also for sending a communication signal from the boom head - from the boom anti‑two block system and boom retraction switch on the boom head.

1. He explained that the cable is stowed in the 'recoil drum' and the cable runs the length of the boom and is then anchored to the boom head.[178] A diagram at figure 1.1 of Mr Ginn's report showed a breakdown of the cable itself. He explained the cable is made up of the following items: the internal copper multicentre strand cable, the first stage of nylon insulation, a multistrand shield, and finally the overall nylon insulation.[179]
2. Mr Ginn explained that for the purposes of his report, he had reviewed the plant logbook for the machine, the daily pre‑start manual of the machine and checked over and reviewed all maintenance and daily pre‑start checks on the machine. He did not locate any defects or issues in relation to the cable.[180]
3. He was taken to Exhibit 12.4. This was a photograph of the severed part of the cable that was connected to the boom head. He was asked whether the point of severance was a common place for the cable to be damaged. He said:[181]

From my experience, that's a very uncommon place because it is usually very protected ... being so close to the tip of the boom and having the boom retraction cable anchor point there so close.

1. He said if there is any damage it is normally halfway down the cable or just the next third of the cable along.[182] He explained possible causes of damage were the cable being caught up in objects, especially in tree work or in structures, and also wear and tear on the cable through excess chemical exposure, heat or extended UV exposure to the light. He also said that when the crane is exposed to any excess heat or UV, or chemicals, you will see normal wear and tear or damage to the paintwork.[183]
2. In terms of the operation of the crane, Mr Ginn explained that Power Take-off 1 (PTO1) is the main operation and Power Take-off 2 (PTO2) is the override function, to recover the crane from any critical site errors. He said critical site errors can include loss of signal from boom length reel signals (amongst other matters).[184]
3. Mr Ginn explained that when the cable has been cut, the computer cannot calculate the capacity of the machine, and therefore, it shuts down as a function. He said that you then need to use the override function to pack up the machine.[185]
4. Mr Ginn was asked what would happen to the cable itself if it is cut. He said it will normally retract back into the boom reel, also saying that if the boom is fully retracted, it will retract and still have a certain amount exposed still hanging out from it. He was asked what would happen if the boom was at full extension or some extension and he said, 'the broken part of the cable retracts back into the reel'.[186]
5. Mr Ginn then gave the following evidence:[187]

And because it's under tension with a clockwork spring, it comes back and the spring actually overwinds itself in the opposite direction and breaks off the anchor point of the spring inside the boom reel, which - then you lose all tension on the reel ‑ ‑ ‑

Okay. So in terms of major faults and minor faults, if the boom retractor cable is cut or is severed when it's in the stowed position, it's more likely to stick out - not cause any damage to the drum?‑‑‑Yes.

Would that be right?‑‑‑Yes.

But when it's at extension and it's cut and it goes back in, then that's going to cause damage to the drum?‑‑‑Yes.

1. Mr Ginn explained that if the cable is immobilised, you can still telescope the boom in if there is no load on it, however normally you do not if there is a load attached because it can cause physical damage to the machine.[188]
2. Mr Ginn was asked whether you are able to stow the boom or move the crane into the drive capacity if the cable had been cut, or there is no signal, and the crane is in a fault mode. He answered yes and explained that in that situation, you activate the override switch, which allows you to retract the boom, bring the hooks into the correct position, and put the boom into the boom cradle for road transport.[189] Mr Ginn also said that without overriding, you can bring the boom in, but you cannot put the boom down.[190]
3. Mr Ginn said that the crane could still be driven without the boom being down, however the system limits you to first gear and it 'would be a very slow drive', estimating the speed at 8 to 10 km per hour.[191]
4. In cross‑examination, it was put to Mr Ginn that if the boom was fully extended and attached to chains slung over a horizontal beam, which was rubbing, that is the sort of vibration that could have an effect on a cable. His answer was no. He said, 'you would ... need more wind where you get excessive movement'. He explained that the cable's design has to withstand a certain amount of vibration 'like, multiple metres of movement'.[192] He accepted that the effect or potential effect of the postulated scenario upon the integrity of a cable would depend upon the number of years that it has been used.[193]
5. He explained that normally if a cable severs, it is not rejoined, but rather it is re‑terminated onto the boom head and re‑anchored onto the boom head.[194] He said the use of the re-anchoring approach depends on the point at which the cable severs, saying that if the cable severs too far down the reel, it is replaced.[195]
6. He was asked whether he would regard it as advisable to plait the wires together and then tie it with black tape and he said no. He explained this was because as you went to re‑anchor it, the tension of the spring would pull it apart instantly.[196] He agreed the cable consists of four layers, each of which has a specific function.[197] He said that if you plaited the two ends of the cable together, you would end up with higher resistance and would not be getting correct communication down the cable.[198] He accepted in that scenario there also would be a possibility of the two ends severing.[199]
7. He explained how black insulation tape is put on a cable wire to aid in protecting it. He explained that the tape protects the cable a little bit on long drives.[200] Mr Ginn was then taken to a photograph showing the black insulation tape on the cable and he was not able to say whether it was protecting against knocking or was there for some other reason.[201]
8. He was taken to Exhibit 12.6 which shows the severed end of the cable from the point of the boom head. It was put to him that the cable had a frayed appearance, rather than a clean‑cut appearance. He said if there was a fray in the cable you would see more visible damage along the cable. However, he accepted that the photograph was not sufficient for him to determine one way or another.[202]
9. Mr Ginn said that he would not recommend joining two ends of a severed cable and sealing them with black insulation tape, saying that the cable goes in and out and the tape will wear off.[203]
10. Mr Ginn accepted that if the cable was severed or disconnected while the crane was in normal operation, the alarm would sound in the cab. He described the sound as being very audible and being audible over engine noise.[204]
11. Mr Ginn also explained that in override, you can 'luff' up and down to pack up the machine, but 'only to make the machine a safe situation, not to lift'.[205] It was put to Mr Ginn that if the cable was old, had been damaged or worn during its long lifetime, he could not rule out the possibility that it simply severed. Mr Ginn answered, 'very unlikely'.[206]
12. In re‑examination Mr Ginn was asked what damage would be consistent with a cable giving way. He said:[207]

... you would see rub tear marks along the cable and the outer casing, cracking or ... damage before you would actually see anything further down, before it gave way.

1. During First Class Constable Rapley's evidence, a video record of a police interview with the appellant was played.
2. During that interview, the appellant was shown extracts of the CCTV footage as to when the incident was said to have occurred and was shown screenshots of the CCTV footage. The photographs became Exhibit 19 in the trial. The CCTV and several of the photographs depicted a person proximate to the part of the cable which the prosecution alleged had been severed. During the appellant's record of interview, he denied he was the person depicted.
3. In the appellant's evidence, he accepted that he was the person depicted, and also accepted that he lied in the police interview. As I explain later, the learned magistrate did not use the lie as displaying a consciousness of guilt on the appellant's part. Rather, the learned magistrate took account of the lie in assessing the appellant's evidence at trial.
4. During the course of cross‑examination, Constable Rapley was taken to photographs he had taken of another police officer in an attempt to demonstrate that the person depicted in the CCTV footage was sufficiently close to the cable to have had the opportunity to sever the cable. This was done by having the other police officer stand near where it was thought the cable had been severed and Constable Rapley taking a photograph. Constable Rapley said that before he took the photo, the police officer in it reached out and touched the cable.[208]
5. Constable Rapley said that the point of reference for where the police officer stood was based on photographs provided by Mr Hawkins.[209] Constable Rapley said the photographs were supplied by e-mail and then printed, saying that he did not see the pictures on Mr Hawkins' phone.[210]

1. By consent, statements of Mr Karl Sleeman and Mr Matthew Anzellino were read into evidence. Both were employees of Harvey Beef.
2. Mr Sleeman said that he obtained footage from the Harvey Beef CCTV system and viewed the entire period between the site shutdown at 3.00 pm on Friday 13 November 2020 and 9.00 am on Monday 16 November 2020. He said during that period, he observed a male dressed in yellow and blue high visibility clothing approach the damaged HotWeld crane on three occasions.[211]
3. Mr Anzellino was the information technology manager for Harvey Beef. He provided the relevant CCTV footage to the Western Australian Police. His statement set out the process that he followed. He also explained that there were sections of the CCTV footage missing, and that he was unable to explain why.[212]

1. Mr Larson was a project manager for Harvey Beef. He was present at the subject site on 13 November 2020 doing preparatory work for the anticipated work to be conducted on the Saturday.[213] Specifically, he was preparing for tilt panels installation on the Saturday. Because of the heavy machinery needed for that installation, it was necessary to shift the crane out of the way. Mr Larson spoke to Mr Babich and told him to put the crane alongside Harvey Beef's sea container, which is where Mr Babich put the crane.[214]
2. Mr Larson gave evidence that the appellant was driving the crane to be used on the Saturday.[215] Mr Larson described that the actual lifting process that day started at around 8.00 am and finished around lunch time. He said that during that time he did not notice the appellant ever leave the crane to go to the toilet.[216]

1. Mr Williamson was a site manager employed by Perkins Builders.[217] Mr Williamson gave evidence that he was present onsite on Saturday 14 November 2020 at Harvey Beef. He said that the appellant was there with Halifax Cranes and was helping install the panels. He said that the installation took about five or six hours and during that time he did not notice the appellant take a toilet break.
2. Further, he said that the appellant spent the majority of that time in the 'franna', which is a mobile crane.[218] Mr Williamson also said that two weeks prior, he had seen the appellant at the same site and the appellant had taken out a multitool. This stood out to Mr Williamson, who said that it is not something that someone carries all the time.[219] In cross‑examination, Mr Williamson accepted that on 14 November he did not see the appellant in possession of any tool of a multitool nature.[220]
3. Mr Williamson also gave evidence that from looking at the CCTV footage, he formed the opinion that the appellant approached the crane and removed a multitool from his pocket.[221] However, that evidence is not admissible for the proof of the truth of that opinion, which was ultimately a manner for the learned magistrate. In cross-examination, Mr Williamson could not recall what the appellant did with the multitool when he had seen it previously or why he took it out.[222]

1. The appellant gave evidence in his defence. The appellant explained that Halifax Cranes is owned by his wife, however it is effectively their joint business. He said Halifax Cranes has been operating for 27 years and owns approximately 30 cranes.[223]
2. The appellant accepted that he was onsite on 14 November 2020. Halifax Cranes had been subcontracted by the principal contractor Perkins to carry out some works on site. The appellant said that another subcontractor onsite was called HotWeld and Halifax Cranes' subcontract concerned a different project to that being undertaken by HotWeld on the same site.[224]
3. The appellant said that on 14 November he attended site at approximately 6.15 am, with three work colleagues.[225] The appellant's task that day was operating the small crane which was known as a Franna.[226] The appellant said he thought they completed the work about 10.30 to 10.45 am.[227] The appellant said he did not take any breaks during the morning.[228]
4. The appellant said that during the course of the morning as he walked back up an access road, he walked off the road towards the crane the subject of the charge, which was parked next to a sea container. He walked between the crane and the sea container. He said that he was 'busting to take a leak' and he did so. He explained that he had a prostate issue for which he was being treated, and that it had an effect on his bladder such that he was 'forever going to the toilets'.[229]
5. The appellant then explained in greater detail what happened when he went over to the area near the crane in the following exchange with his counsel:[230]

... when you left the road and walked towards the sea container and the crane - okay - let's take - let's pick up at that point - just describe why you went there and what you did while you were there?‑‑‑I went to the gate and I let - to let the truck out and bring John in, wait for the - for the EWP to come through with John. And as John was coming through I said, ''John'', we didn't have no smoko. It was just rush, rush, rush to get these because the two guys from Perkins were whinging that they don't get paid to work on a Saturday. That was just yelled at me and - and all my crew. So we just had to run to get it done so I said to John, ''John, I'm busting for a leak, man'', and he just ‑ ‑ ‑

When you say John, surname. John?‑‑‑John Shepis and he said ‑ ‑ ‑

Thank you?‑‑‑ ‑ ‑ ‑ ''Can you please take mine as well because I'm busting as well. ''Because we never had a chance - none of us had a chance to go to the toilet. And I just went - just found an easy path to go because I work with a crane and every day you're on a crane it's the same old story. You just never get a chance to the toilet. You just have to rush rush - rush, rush because everyone is whinging about the money they're paying for cranes. So I just found an easy way just to - just to go there because otherwise I was going to - I was just bursting. I was just going to leak ‑ ‑ ‑

All right?‑‑‑ ‑ ‑ ‑ on meself.

1. The appellant was asked to explain what he did in simple terms. He said he undid his fly, pulled his penis out and 'had a quick leak', saying he does not urinate for long, and then he went off.[231]
2. The appellant said that on 14 November he was not in possession of a multitool or a pair of pliers when he stood by the crane. He also denied having a multitool on him as Mr Williamson had indicated in his evidence.[232]
3. The appellant was then taken to the police interview during which he had denied approaching the crane and cutting the cable. In his evidence at trial, his position was that he did not cut the cable, but accepted he had approached the crane. He said the reason he told the police officers that he had not approached the crane was because he was 'just totally embarrassed because of my situation of having to go to the toilet'.[233]
4. The appellant accepted that he lied about approaching the crane but denied cutting the cable. He was asked to explain why he lied and he said he did not want to lose his job at Harvey Beef because his company did a lot of work there.[234] He accepted that he was aware at the time he said he urinated that Harvey Beef had a strict policy that people are only to urinate in facilities.[235]
5. The appellant was cross-examined as to his movements on the Saturday. The proposition was put to him that what he did involved him operating the crane for a period of time, getting out of the crane and then assisting putting the tilt panels in position or handing props up, which he accepted.[236] The appellant said that they probably started erecting the tilt panels at 6.45 am and it took about four hours.[237]
6. He was asked whether at any stage in that four hours he went to the toilet and he said 'I wasn't able to'.[238] He said he went to the toilet at the Perkins building site just after he got there. He was asked about his problem with his prostate and he said it caused him to go to the toilet generally every 15 to 20 minutes.[239] He explained that he just generally has 'one or two dribbles'.[240]
7. The appellant said to the effect that from when he first went to the toilet in the morning to when they stopped work, he essentially wet his pants. He said in cross-examination that 'I had some stains on me pants, sir, because I couldn't go to the toilet'.[241]
8. The appellant was taken to footage which showed him near the crane. He said he had walked down to the gate to let a truck out and was walking back. He said that Mr Larson had told him to go down there. It was put to him that on the way, he walked past the ablution block where he had said he went to the toilet when he first started that day. He accepted that proposition. He was asked why he did not go to the toilet when he passed it that time and answered, 'because I was getting yelled at to hurry up'.[242]
9. He was asked about his evidence that he went to the toilet near the HotWeld crane and he said he 'had a few squirts', it did not take very long, and that it took probably about three or four seconds.[243]
10. The appellant was taken through the CCTV footage in some detail. In particular, he was shown the footage where after he had been near the crane, he kept walking and then walked further up the road and went into the ablution block. He said he went in there to wash his hands and face and 'have another squirt'.[244] It was put to the appellant that his evidence about going to the crane to urinate was a fabrication, which he denied.[245]
11. The appellant accepted in cross-examination that at around 6.49 am he was near the crane. He said he was looking for a piece of rod to free a chain, because he did not have any rods at any of his cranes.[246] It was put to him that the reason he was at the crane was to try to open the door and cause damage in some way. He denied this.[247]
12. The appellant was also challenged on his evidence as to why he was near the container next to the crane. It was put to him that he was there 'scoping that crane out' and looking back towards the camera to see what it could see. The appellant denied this.[248]
13. In re‑examination, the appellant said the reason he was near the shipping container on the second occasion was that he was looking to see if there were any padlocks or bolts left behind, as his company would be charged if they were missing.[249] He was asked in re‑examination whether at any time he formed the intention to damage the crane and he said 'That is absolutely outrageous for anyone to say that'.[250]

1. The appellant's counsel at trial tendered by consent a report of Dr Ali regarding the appellant's prostate condition. The report states that the appellant had been Dr Ali's patient from 1 September 2021 and had reported symptoms of urgency to go to the toilet, and having 'dribbles' only when attempting to pass urine. Dr Ali examined the appellant for a prostate problem and his ultrasound confirmed that his prostate size was three times the normal size. Dr Ali said that finding is consistent with the symptoms described by the appellant.[251]

1. Mr De Marte also called Mr Birks as an expert witness at the trial. Mr Birks has been a chartered professional engineer since around 2005 and also has a Certificate of Mobile Crane Operations which he also obtained in around 2005.
2. Mr Birks in his oral evidence explained that he had requested a copy of the correct operation and maintenance manual for the crane but it was not forthcoming. Therefore, it was 'the next best thing we could do, which was to obtain a copy of the operation and maintenance manual through Halifax Cranes, because they had a crane of the same model'.[252]
3. Mr Birks had prepared a report prior to trial, which became Exhibit 22 in the trial.
4. In that report, amongst other matters, at Part 6, Mr Birks explained that he inspected a sample of a cable used on the same model as the crane operated by HotWeld. In his report, Mr Birks said that the cable had the following layers, starting from the outside and then proceeding inwards:
   1. an outer black layer of insulation which appears to be a type of PVC;
   2. wire mesh that appears to be stainless steel. He said each wire is very thin, similar to the diameter of human hair;
   3. white plastic, which is probably PVC; and
   4. the core, which comprised four strands of wire that appear to be copper and three strands of wire that appear to be stainless steel. He said that corrosion of the wires can occur if exposed to marine or coastal environments.
5. A photograph of the cable showing each of these layers is contained at figure 6.1 of Mr Birks' report.
6. Mr Birks' report also contained at figure 4.1.1, a photograph of the unsafe lift that was carried out on the Friday. In respect of that photograph, Mr Birks was of the opinion that it showed the chain sling pulling against the steel rafter. He was of the opinion that this would have caused vibrations in the crane boom. Further, he said that because the boom is fully extended the boom retractor cable has maximum tension on it and would be vibrating with the boom.[253]
7. Mr Birks was of the opinion that the potential vibrations on the day of the unsafe lift, combined with the wind on the day, would cause additional stress on the cable which would not occur very often.[254]
8. Section 4.3 of Mr Birks' report specifically addressed the photographs of the cable that became Exhibit 12.[255]
9. Mr Birks gave the following evidence regarding figure 4.3.3 (Exhibit 12.2):[256]

So photo 6BD, which is on page 8, that shows the other end of the boom retractor cable, which is the end that's connected to the reel, and when I zoom in on the end of the boom retractor cable in that photo, 6BD, I can see that some of the insulation, the black insulation, has been stripped away from the boom retractor cable, which is what you would expect when you're undertaking repairs. If you were to splice the cable, you would need to strip the insulation back. So my opinion is, even though in Brett Hawkins' statement it says that he took the photos first, and then he undertook the repairs, it appears to me that he had already commenced repairs when photo 6BD was taken. Photo AE9, which is next to 6BD, the same part of the boom retractor cable, which is the part that's connected to the reel, and I believe, actually, photo AE9 was probably taken before photo 6BD. I believe that they probably cut the cable and then stripped it, as you can see in photo 6BD, so I think there's - the problem that I have when I try to investigate further is that the metadata of the photos, accurate metadata, wasn't provided to me. Initially the photos were sent and they had different dates that didn't match the Monday, 16 November, then I requested that the accurate metadata should be sent, and I wasn't able to obtain it, so I wasn't able to determine the sequence of the photos, and I wasn't able to determine the time of the photos. (emphasis added).

1. Mr Birks gave evidence that the presence of the black insulation tape indicated to him that the boom retractor cable was in poor condition saying, 'It's really just a patch job'.[257] He said he was not familiar with the practice of wrapping insulation tape around a cable to guard against knocking with an eyelet and said it should not be necessary.[258]
2. The following exchange then occurred with Mr Birks:[259]

When you get corrosion, perhaps egress of water, in the way that you've described, through a fractured or damaged outer layer, is there a risk of a boom retractor cable simply giving way and snapping?‑‑‑Yes, definitely. If the crane is operating in any kind of coastal environment, you're going to get corrosion in the stainless steel which, I believe, would be grade 304 stainless steel. It can corrode quite quickly in the presence of just a slight amount of salt in the air from like what you get in a coastal environment, and especially due to the very small diameter of the components of that braided rope, it can corrode very quickly and fail.

...

In a situation where a boom retractor cable is old or in poor condition and is, potentially, subject to vibration, for instance, in an unsafe lift, okay?‑‑‑Yes.

And the [crane] is packed away and then laid up for several days, given the condition and use of the boom retractor cable immediately preceding, is it possible that that boom retractor cable, while the crane is parked up and unattended, has simply finally given up the ghost and snapped?‑‑‑Possible. Possible, yes. More likely that it would give up during a lifting operating, like on the lifting operation on Friday, but also possible that it could give up while it's just sitting there, not in operation.

1. Mr Birks was asked to assume that the cable had not been replaced since 1997 and was then asked for his opinion as to the possible effect of UV exposure and/or mechanical damage during the course of more than 20 years. He said that the cable 'would be in very poor condition, and you wouldn't be surprised if it broke during a lifting operation after such an extended period of time'.[260]
2. Mr Birks carried out tests on the crane on 13 December 2021.[261] The first test was with the cable disconnected and without the override function activated. In this scenario, the crane operator was able to 'luff up, slew, and lower both hooks'. However, the crane operator was unable to extend the boom, luff downwards or raise either of the hooks.[262] Further, the crane alarm could easily be heard by the crane operator and easily heard when standing next to the crane. Mr Birks agreed with the proposition that when standing 5 m from the crane, his opinion was that the alarm was not very distinctive.[263]
3. Mr Birks also had conducted a test where the cable was disconnected and the crane was put in override. He said he had asked HotWeld for their override key and they said that they did not have one.[264] Mr Birks said the override capacity gives the crane operator the ability to continue operations with a broken boom retractor cable and pack up the crane when finished.[265]
4. Mr Birks came to the conclusion that it was possible the cable was broken during a lifting operation, or was deliberately cut.[266] He said he considered both possibilities to be credible. Mr Birks also said that when he attended site on 13 December 2021 he did not see any black insulation tape on any part of the cable.[267]
5. In cross-examination, Mr Birks said he had no specific experience repairing or supervising repairs on a crane of the type, the subject of the charged offence.[268] Further, Mr Birks was not certified as a crane safety inspector.[269]
6. In respect of the unsafe lift, Mr Birks accepted that the length of time that the chain is in contact with the steel beam would be a relevant factor in whether the unsafe lift caused any vibration. Further, he could not determine how long the chain was actually in contact with the steel beam.[270]
7. He accepted that the vibration in such a scenario is largely absorbed by the boom of the crane. He also accepted that if there was any breach in the integrity of the PVC outer coating, that water potentially can leak in and short the cable out or affect corrosion on the stainless steel braiding.[271]
8. He was asked whether corrosion to the braiding would cause some interference with the readings on the computer, and he said that it 'would need to be fully corroded as opposed to, let's say, if it's 80 per cent corroded and it has lost 80 per cent of its strength, you can still get the signal that the computer relies on'.[272] It was put to Mr Birks if there was any fault or corrosion in the cable itself, that may show up in the tests or the checks that operators would conduct or during normal operations of the crane. He answered:[273]

No. I think it would - it's often concealed because you can just get cracking in that outer layer of the black insulation layer and then that's typically when they might put insulation tape on as a temporary fix, but, underneath the insulation tape, that's where you get the - the moisture seeping in and causing corrosion on the braided stainless steel and it's - it's all concealed. So you wouldn't see it.

1. Mr Birks was taken in cross-examination to the photograph that appeared at figure 7.2 of his report. The photograph indicated paint damage on the boom retractor anchor. Mr Birks said there was 'no kind of damage to the steelwork, so it didn't look like it was an impact involving a lot of force'. Mr Birks also said it could be 'a scrape, just enough to take the paint off, but not enough to damage the steel'.[274]
2. Mr Birks said he could not determine if the cable had been cut or snapped and considered either outcome as possibly open.[275]
3. He said he had not checked the weather data for the day in question.[276]
4. In re-examination, he was taken to Exhibit 12.6. He was asked how the end of the cable had been severed. He said it could have either been cut with a blunt instrument or it could have been broken.[277]

1. By consent, a report of Mr Le Roux was tendered. He had enhanced the CCTV footage which depicted the appellant near the cable on the Saturday. In his report he said that he was unable to verify from the footage whether the man's (the appellant's) arms go up above his waistline, and whether he reaches at any time towards the crane boom. He also said the footage does not show the person taking any object out of his pocket.

1. The final witness that the appellant called was Dr Hutchison. He is a digital forensic practitioner. He had reviewed the footage of the appellant near the cut near the crane on the Saturday. He expressed the following views. The man's forearm up to the elbow did not appear to move whatsoever.[278] He further gave evidence that there was no evidence from which he could validate whether the person had anything in his hands approaching or leaving the stationary position in front of the crane facing the boom. Further, the person did not lift his hands above the shoulder. And, in the footage from Channel 91, all he could validate was that the person's forearm was in a downward position and his head was in a slightly downward position.[279]

1. The learned magistrate identified the main issue as whether the appellant caused any damage to the cable or whether the damage occurred in some other way.[280] The learned magistrate noted that the appellant admitted that he approached the crane at about 11.08 am on the Saturday, and conceded that no other person approached the crane that weekend.[281]
2. The learned magistrate observed that there was no direct evidence that the appellant cut the cable and that the CCTV footage does not show him doing so, but merely shows that he was in proximity to the crane over the weekend.[282] His Honour noted the position taken by the appellant was:
   1. the court ought to accept his evidence that he did not cut the cable; and/or
   2. a reasonable inference exists that the cable simply broke due to being in a poor condition and/or due to stresses from the operations on the Friday, 'including the performance of an unsafe lift and other issues, such as environmental factors, the age of the boom retractor cable'.[283]
3. His Honour identified that the cable involves an internal copper centre strand cable, then the first stage of nylon insulation, which is white, and then a further silver multi‑strand shield and then a black nylon or PVC outer protective insulation.[284]
4. His Honour noted that the appellant's counsel no longer contended that the cable may have severed during lifting operations on Friday. His Honour noted the appellant's contention was that a potentially already weak cable may have been further damaged or weakened during the operations on the Friday, but had not severed at that point.[285]
5. His Honour found that the cable had not been severed during the operations on the Friday. In coming to that finding, his Honour held that if it had been severed during those operations without using the override switch, the crane would not have been able to lift steel or be packed away and the alarm or computer error would have been very apparent to the operator and those within at least five metres from the cab.[286] His Honour accepted the evidence of Mr Babich and Mr Bentley that some steel was moved using the crane after the unsafe lift. His Honour also accepted Mr Babich's evidence that he did not engage the override function and did not even know that it existed.[287]
6. His Honour noted that Mr Babich gave evidence that on the Monday he observed the severed boom retractor cable and that he described it as a clean cut, like you might expect if you cut some type of cord with pliers. His Honour noted that Mr Babich gave evidence that there was no surrounding damage to the boom to indicate some crushing or impact force.[288] Further, his Honour referred to Mr Babich's evidence that he observed a lack of crushing, flattening or tearing of the cable itself at the point of severance.[289] His Honour noted that while Mr Babich agreed that the photograph at Exhibit 2.6 did not appear to be a clean cut, Mr Babich's evidence was very clear that he saw a clean cut.[290]
7. His Honour referred to Mr Bentley's evidence that he noticed the cable was 'just not there anymore' and further that he did not really look at the cable at any point and did not provide any evidence regarding its appearance.[291]
8. His Honour referred to Mr Hawkins' evidence that the point of severance had the appearance of a very clean cut, there was no surrounding damage indicating impact and there were no frayed wires or signs of stretching or any pulling motion.[292] His Honour made the following observations regarding the photographs which were Exhibit 12:[293]

[Mr Hawkins] was shown the same photographs as Mr Babich, now being exhibit 12.1 through to 12.6. He confirmed he took the photographs. Now, there was an issue with the photographs. And they are of limited assistance. In my view, they're consistent with the evidence of Mr Babich and Mr Hawkins.

But if there was no direct evidence from those two witnesses the photos themselves may have been problematic, because it was accepted in cross‑examination by Mr Brett Hawkins, who took the photographs, that he did ultimately take them at various intervals. And that's borne out by the CCTV as well. And they were taken, some of them at least, and at least one, was taken partly after his running repair had commenced.

1. His Honour also noted Mr Hawkins' evidence regarding Exhibit 12.6 that the appearance of the cable in that photo is distorted by grease being deposited on that end when he pulled the cable through the eyelet. His Honour observed that the photograph shows a great deal of what appears to be grease on the eyelet and accepted Mr Hawkins' evidence as being very plausible.[294]
2. Ultimately, his Honour was of the view that both Mr Babich and Mr Hawkins were credible and compelling witnesses as to their observations regarding the severed boom retractor cable. His Honour accepted their evidence regarding the appearance of the point of severance of the cable. His Honour said however that does not necessarily mean that the cable was cut, or that the appellant cut it.[295]
3. His Honour then considered the appellant's evidence. His Honour made the following observations regarding the CCTV footage. Exhibit 20.5, extracted from channel 93, shows the appellant walking down the road, past the toilets towards the gate at around 11.04 am. Exhibit 20.7, also extracted from channel 93, shows the appellant following an elevated work program on the road back from the gate walking at a normal unhurried pace. The appellant then heads towards the crane and again is walking in a manner that is unhurried. He initially walks to an area adjacent to the crane's cab and ultimately goes to a position back towards the front of the crane, adjacent to the boom and is stationary there for a time that is no more than five seconds. After the very brief period for which he is stationary, he turns and continues back past the cab of the crane, around the rear of the crane and back onto the road. He is subsequently depicted entering the toilets at the top of the road.[296]
4. His Honour addressed in detail the evidence of Mr Le Roux and Dr Hutchison and ultimately came to the conclusion that the CCTV footage as analysed by them does not prove that the appellant removed any tool from his pocket, but it also does not disprove it. And similarly, the footage does not prove or show that he cut the cable.
5. In summary, his Honour found that apart from demonstrating the proximity of the appellant to the cable, the CCTV footage was neutral as to whether or not he cut the cable.[297]
6. His Honour found that the appellant's evidence as to why he approached the crane, and what he did when he got there, lacked credibility and was clearly implausible.[298]
7. His Honour made the following observations regarding the appellant's evidence:[299]

Further, he knew that there was a toilet to be used very close by. He walked past the boom of the crane to an area adjacent to the cab, then returned to a position near the boom. There was no apparent reason to do so if his intention was to urinate. He did not urinate on the wheel of the crane, which would have provided more cover and privacy. The duration of him being stationary at the crane at the point where he says he was urinating was five seconds at most.

Despite claiming to only expel a few dribbles, this amount of time is completely inadequate to extract his penis, urinate and replace it. One would also expect someone in such need to urinate to perhaps take a little bit longer than no more than five seconds to enjoy the relief gained for finally being able to urinate after such a desperate need, over such a great period of time. There were toilets located only a short distance away, which was well known to the accused, despite them being in a state of poor cleanliness.

The accused was well aware of the strict policy of no urination outside of the toilets. And this was apparent for biosecurity reasons, the site being an abattoir. The alleged emergency of the situation is implausible also, given his own evidence that he had already soiled his pants. As such, releasing a few dribbles within his pants if he couldn't reach the toilets in time would be of little consequence, as his pants were already wet.

1. His Honour also took account that the appellant was evasive in answering questions asked of him and lied in his police interview when he said that he was not the person in the CCTV footage who approached the crane.
2. Ultimately, his Honour rejected the appellant's denial that he did not cut the cable.[300]
3. His Honour also rejected and put to one side Mr Williamson's evidence that he had seen the appellant with a multitool some weeks previously.[301]
4. His Honour then considered the possibility that the cable simply gave way sometime between the afternoon of Friday 13 November and the morning of Monday 16 November 2020. On the evidence, his Honour considered that the cable was at least three years old, and up to possibly 22 or 23 years old. His Honour was satisfied that the cable was in working order three weeks prior to the incident, having regard to the evidence of Mr Price who inspected the crane about three weeks prior to the incident.[302]
5. His Honour referred to the different evidence regarding the application of tape to the cable and said he was not able to make any specific finding as to when the tape was applied or for what purpose. His Honour then said:[303]

As such, I proceed on the basis that it is open that the [tape] had been recently applied and it's open that it was applied for the purpose to cover up some type of defect.

1. His Honour referred to the evidence regarding the environmental factors that might weaken a cable. His Honour considered the evidence regarding the unsafe lift and ultimately found that it was possible that the cable endured a bit more stress on the Friday as a result of the unsafe lift.[304]
2. His Honour then considered in detail the evidence given regarding the prospect that the cable had 'given way' as opposed to being cut.[305]
3. His Honour found that even if the cable had previously been damaged, it was displaying no fault to the crane operator and was working right up until Friday afternoon.[306]
4. His Honour found that any additional stress and potential damage from the unsafe lift on the Friday would have, in his Honour's view, been minimal.[307]
5. His Honour then had regard to the following further matters:[308]
   1. the crane was able to complete further lifts of steel without incident after the unsafe lift;
   2. Mr Ginn's and Mr Birks' evidence was supportive of the proposition that the prospect that a cable may simply give way when 'parked up' is unlikely;
   3. if the cable had given way, you would expect to see it displaying signs of fraying;
   4. there were no visible signs of damage to the surrounding areas of the boom;
   5. the cable was found to be severed at a point where there was no tape, and the tape on the cable was 'a good 5 cm' away from the point of severance;
   6. when the crane is 'parked up', the cable is experiencing the least amount of tension;
   7. there was evidence which 'makes it clear that [cables] are generally durable; and
   8. after the cable had been repaired, it remained operational for months without fault.
6. Having regard to these matters, his Honour found that the prosecution had negatived any open inference that the cable broke in a manner unassociated with the appellant. His Honour found that any such inference, if one could be drawn, would be not reasonably open. His Honour found the appellant did approach the crane and did cut the cable, and found the appellant guilty of the charged offence.[309]
7. I turn now to address the evidence adduced on the appeal.

1. The appellant relies on an affidavit of Mr Gregory sworn 26 May 2023 (Mr Gregory's first affidavit) and a second affidavit of Mr Gregory sworn 25 March 2024 (Mr Gregory's second affidavit). Mr Gregory was the appellant's instructing solicitor prior to, and at, trial and was initially the instructing solicitor on this appeal.
2. His affidavits attached reports of Dr Hutchison and Mr Birks obtained subsequent to the trial. His affidavits also attached additional material that had been provided by police officers to Mr Gregory subsequent to the trial.
3. Mr Gregory's affidavits became Exhibits 9 and 10 on the appeal. Dr Hutchison's report became Exhibit 1 and Mr Birks' report became Exhibit 3. Further material from Dr Hutchison became Exhibits 16, 17 and 18 on the appeal. Dr Hutchison and Mr Birks gave evidence on the appeal.
4. The respondent relied on an affidavit of Mr Scutt affirmed 21 November 2023 which attached a report of Mr Ginn, provided in response to Mr Birks' report. Mr Ginn's report became Exhibit 8 on the appeal. Mr Ginn also gave evidence on the appeal.
5. I will admit the exhibits and the oral evidence given on appeal as additional evidence pursuant to s 40(1)(e) of the CA Act. The critical question is whether the additional evidence results in the appeal being allowed.
6. Prior to the hearing of the appeal, I was concerned that there did not appear to be a clear delineation between the evidence the appellant relied on as constituting fresh and new evidence. Accordingly, at my direction, the appellant's counsel filed supplementary submissions on 25 March 2024 that set out the categories of additional evidence that the appellant relied on.
7. The categories of evidence can be summarised as follows:
   1. Evidence pertaining to the photographs comprising trial Exhibit 2 and Exhibit 12,[310] in particular the times at which those photographs were taken and how they came to be provided to the police officers.[311] This evidence is predominantly constituted by further versions of the photographs, and also a further statement of Senior Constable Fishlock, all obtained after trial.

The times at which those photographs were taken was initially said to undermine the credibility of Mr Hawkins' and Mr Babich's evidence at trial that they observed the cable had been cut. In oral submissions, the appellant's counsel broadened this submission to also encapsulate the credibility of Mr Bentley's evidence, in particular that he observed the cable was not there while doing his pre-start check.

1. Evidence pertaining to whether it was reasonably possible to carry out repairs in the manner suggested by the evidence at trial, if the cable was severed prior to those repairs having commenced. This evidence is said to support the appeal hypothesis.
2. Evidence of Dr Hutchison by way of providing an enhanced version of the CCTV footage that covered the period from when Mr Bentley first inspected the crane through to the completion of the repairs to the cable. The enhanced footage is relevant to the propositions put forward by the appellant on the appeal and I consider it in that context.
3. An additional issue which the appellant initially agitated on appeal was whether the photographs comprising Exhibits 2 and 12 were taken by more than one electronic device. If that were the case, it would contradict Mr Hawkins' evidence at trial. Dr Hutchison's first report suggested that there was a reasonable possibility the photographs were taken using different devices.[312] However, as I explain below, this issue was resolved by additional versions of the photographs that were obtained after trial from Mr Casagrande's phone. Dr Hutchison's further report, having regard to those additional photographs, was to the effect that the photographs comprising Exhibits 2 and 12 were all taken using one phone. The parties accept this evidence.
4. The appellant also contended that evidence given at trial was 'fresh evidence'. This contention was directed to evidence of Mr Hawkins, Mr Babich, Mr Bentley, Mr Ginn and Constable Rapley. The appellant's contention is to the effect that each gave evidence at trial which differed from the pre‑trial disclosure of their anticipated evidence, that pre-trial disclosure having been given by way of statements and other material.
5. Evidence given at trial which expands upon, or is inconsistent with, pre‑trial disclosure is not fresh or new evidence for the purposes of an appeal. The classification of evidence as fresh or new is directed to the additional evidence that is sought to be adduced on the appeal. It is not directed to evidence that was adduced during the trial, which an accused and their legal representatives say they did not expect would be given. If that occurs, then it may be relevant to whether an accused was taken by surprise and as a consequence, the trial should be adjourned or aborted. It may also be relevant to an assessment of whether additional evidence obtained after trial could have been obtained pre‑trial with reasonable diligence. I deal with this issue later in these reasons.

Additional evidence pertaining to the photographs which became Exhibit 2 and Exhibit 12 Times at which the photographs were taken

1. The circumstances in which the additional evidence pertaining to the times at which the photographs were taken is as follows.
2. Subsequent to the trial, the appellant's legal representatives sought additional material from the police prosecuting office in relation to how they obtained the photographs in Exhibit 2 and Exhibit 12 prior to trial.
3. Mr Gregory said that request was made because of a discrepancy between the evidence of Mr Hawkins and Constable Rapley concerning how the photographs were provided, and also because Mr Hawkins accepted in cross‑examination that the photograph in Exhibit 12.2 was taken after the repairs had commenced.[313] In respect of the discrepancy, Constable Rapley's evidence was Mr Hawkins had emailed the photographs to him.[314] Mr Hawkins' evidence was that he gave police officers his phone and they took it away.[315]
4. The material set out at [304] to [307] below was provided to the appellant's legal representatives by the police prosecuting office after trial.
5. There was an email sent by Constable Rapley on 11 January 2023 to Prosecuting Sergeant Walker, who was the prosecutor at trial. Constable Rapley stated the following. He was unable to locate any emails sent by Mr Hawkins attaching the photographs. Further, the photographs had come into police possession by direct upload to 'Evidence.com' by Mr Williamson, who had received the photographs from Mr Hawkins. On 4 February 2021, Constable Rapley obtained a statement from Mr Hawkins and attempted to download the photographs from Mr Hawkins' phone, however they were no longer present.[316]
6. Further, Senior Constable Fishlock gave a statement as to how the additional versions of the photographs obtained after trial were located.[317]
7. Senior Constable Fishlock said that on 20 March 2023, she attended at HotWeld's offices and obtained signed statements from Mr Casagrande and Mr Babich.[318] She said Mr Casagrande provided her with his mobile phone and had consented to her viewing the text messages on it from Mr Babich forwarding photographs of the cable.[319] These photographs include the photographs comprising Exhibits 2 and 12.
8. Senior Constable Fishlock said that she saved the photographs into the photo album on the phone and then ultimately obtained 12 photographs of those photographs and metadata.[320] Those 12 photographs are attached to Mr Gregory's affidavit.[321]
9. Unfortunately, in taking evidence at the hearing of the appeal, the parties had not appreciated that the photographs obtained from Mr Casagrande's phone contained their metadata, including the time each photograph was taken. The respondent's counsel, Mr Scutt noticed this shortly before the appeal was to come back on for final submissions. Mr Scutt quite properly brought it to the attention of the appellant's counsel, and the court. As a result, the hearing was adjourned to enable a further report of Dr Hutchison to be obtained.
10. Dr Hutchison's further report identified that the photographs were taken at the following times, which I have put in chronological order:[322]

(1) Exhibit 12.4 - 8:24:14 am;

(2) Exhibit 12.6 - 8:24:29 am;

(3) Exhibit 12.2 - 8:24:40 am;

(4) Exhibit 12.1 - 8:40:52 am;

(5) Exhibit 12.5 - 8:41:02 am; and

(6) Exhibit 12.3 - 8:41:15 am.

1. Dr Hutchison's further report became Exhibit 16 on the appeal. The parties accepted Dr Hutchison's evidence as to the times at which the photographs were taken. Dr Hutchison's further report also stated to the effect that the photographs were all taken with the same phone, which the parties also accepted.
2. It is not necessary to consider further the extensive evidence that Dr Hutchison gave on the appeal regarding when the photographs were taken, and whether they were taken using the same phone.

Further additional evidence pertaining to the photographs

1. There was also further material provided to the appellant's legal representatives after trial by the police prosecuting office pertaining to the circumstances in which red circles had been placed on the photographs.
2. In that respect, the initial disclosure provided prior to trial included photographs with red circles on them, ostensibly depicting the area of damage to the cable. Those photographs depicted the same image as shown in Exhibits 2 and 12, however, had a red circle on the respective photograph.
3. These photographs were emailed on Mr Casagrande's behalf by his administrative assistant, Ms Read, to Senior Constable Fishlock. Mr Casagrande in a statement dated 20 March 2023 (after trial) said he did not know how the photographs came to have a red circle around them.[323]
4. When Senior Constable Fishlock was at HotWeld's offices on 20 March 2023, she also spoke to Ms Read. Ms Read explained to Senior Constable Fishlock that she had placed the red circles on the photographs, with the assistance of Mr Hawkins and Mr Casagrande.[324]
5. Ms Read in a statement dated 23 March 2023 sets out the circumstances in which she says the red circles were placed on the photographs.[325] She said that she selected certain photographs off Mr Casagrande's phone and saved them into a file on his computer. She then states:[326]
   1. From there in company with Rick and Brett[327] I have placed a red circle around those photographs to show the damage to the wire.
   2. Rick and Brett helped me as I didn't know where they wanted the circles.
6. Ms Read also stated that she sent the photographs by email to Senior Constable Fishlock on 2 December 2020, saying that was the same day she put the circle around the photos.[328]
7. The appellant relies on this evidence in respect of the credibility of Mr Hawkins' evidence. Specifically, the appellant says that when the red circles were placed on the photographs, Mr Hawkins had the opportunity to make plain that all of the photographs did not depict the damage to the cable as first observed, yet he did not do so. The appellant also points out that the day on which the red circles were placed on the photographs, 2 December 2020, is only a short period after the photographs were taken on 16 November 2020. The appellant says that when the red circles were placed on the photographs, Mr Hawkins would have had fresh in his mind what he observed on 16 November 2020 and the purpose for which the photographs were taken.

1. Extensive evidence was adduced on the appeal from Mr Birks and Mr Ginn pertaining to the appeal hypothesis. This evidence included the reports that each made, and oral evidence given at the hearing of the appeal.
2. It is necessary to set out in some detail the evidence that each of Mr Birks and Mr Ginn gave on the appeal pertaining to the appeal hypothesis. Doing so assists in identifying the material points of difference between them relevant to the disposition of the appeal.
3. Mr Birks' report for the appeal also addressed the question of whether the photographs comprising Exhibits 2 and 12 were taken during the course of the repairs to the cable. Given that issue has now been resolved by the parties' acceptance of Dr Hutchison's further evidence on that topic, it is not necessary to set out in these reasons that aspect of Mr Birks' evidence.

Summary of Mr Birks' and Mr Ginn's evidence on appeal

1. The appellant's counsel filed as Annexure C to her closing submissions a document summarising Mr Birks' and Mr Ginn's evidence.
2. The primary position sought to be advanced by Annexure C was that the controlled repair hypothesis was reasonably open based on a summary of both experts' evidence.
3. In order to properly understand their oral evidence, it is necessary to start by summarising the reports of Mr Birks and Mr Ginn which became Exhibits on the appeal. I will then turn to their oral evidence.
4. Mr Birks in his report prepared for the appeal (Mr Birks' appeal report) stated that:[329]

If the boom retractor cable is cut or broken, I would expect the cable tip to retract into the aperture. It is then necessary to unbolt the boom length detector from the side of the boom in order to remove the drum and re‑spool the cable. Although it may be possible to pull the cable tip back out of the aperture using long nose pliers, the tension on the recoil spring is lost when the cable is released. The recoil spring tension can only be re-set by manually re-spooling the cable, as per the Tadano repair manual ...

1. Mr Birks referred in his report to a test he conducted on 18 April 2023 in respect of the same model of crane. He conducted the test to measure how much of the cable retracts onto the drum when the end of the cable was detached from the boom tip indicator. He tied a string to the end of the cable and allowed it to reel onto the drum until the spring tension was fully released. He then measured the length of the string that retracted onto the reel and said this was 4.2 m.[330]
2. Mr Birks also said that:[331]

Based on the Tadano cable installation procedure and the tests described in the previous section, if the cable was cut at the location indicated in [Exhibit 12.4], the cut end of the cable should have retracted into the reel. This would take approximately two rotations of the reel drum. The drum should then rotate another five times before the tension in the spring is fully released. I expect that this would create a tangle inside the drum that would require the reel to be unbolted from the crane boom and opened up in order to untangle the cable and neatly re‑spool it on the drum before the crane could be placed back into service.

1. Mr Birks stated that from his review of the CCTV footage, the reel was not unbolted in order to untangle and re‑spool the cable.[332]
2. Mr Birks postulated three possible scenarios that match the CCTV footage of what occurred on the Monday morning. They were:
   1. The cable had not been installed in accordance with the Tadano instructions and had less than seven turns of pre‑tension. He said that if there were only two drum turns of tension in the spring, the cut end of the cable may not have retracted into the reel aperture.[333]
   2. The recoil spring was damaged and thus the tip of the cable did not retract into the reel aperture.[334]
   3. It is possible that the repairs on the boom retractor cable were required due to a damaged section of cable, which was causing an error signal on the load moment indicator (LMI). The LMI is a computer situated with the cabin of the crane. He said that:[335]

For a damaged cable, a site repair would typically involve cutting the cable each side of the damaged portion, and installing a new section of cable to maintain the same length. If the damaged section was very short, it would be possible to cut the damaged section out and splice the ends without using new cable to replace the portion that was removed.

1. The third scenario put forward by Mr Birks is predicated on there being a damaged section of cable 'which was causing an error signal on the LMI'. There is no direct evidence to that effect. Further, Mr Bentley's evidence is to the contrary. His evidence was that when he drove the crane over, he did not turn the computer on.

1. Mr Ginn, in his report prepared for the purpose of the appeal, expressed the following opinions:
   1. Whether the drum end of the cable would always fully retract into the drum, depended upon a number of different factors which included the preset tension and whether the cable had lost tension over time due to stretching or environmental factors.[336]
   2. If the cable retracts into the drum when the boom is fully retracted, the cable length is relatively short. Therefore, the chance of a tangle or other issues occurring is low due to the low momentum the cable is subject to.[337]
   3. Due to the boom cable reel utilising a clock spring, it creates its own tension as the boom is extended. The preset tension on the cable depends upon the age of the internal (clock) spring and the amount of cable pulled out of the drum to the boom head anchor point. He also said the initial length of cable pulled out from the reel affects the initial tension on the cable by affecting the preload on the spring. Mr Ginn said that as the spring ages or its condition deteriorates, there is a loss of tension imparted by the spring. He also said that the more cable that is wound out, the higher the preload on the spring and the higher the tension on the cable.[338]
   4. Mr Ginn explained that once a cable is repaired, the reel tension can be set to the factory specified tension which requires a number of steps to be taken commencing with the removal of the boom length reel from the boom. This procedure is a permanent procedure. He said there is also a short‑term/temporary repair procedure that is possible to carry out. This involves re-anchoring the cable to the boom head, removing the cover of the reel to expose the boom length potentiometer and then using a small screwdriver to rotate the potentiometer until the correct boom length of 5.2 m when the cable is retracted is shown on the automatic moment limiter (AML) display.[339]
   5. It is possible to 'anchor off' a broken cable through the use of a cable clamp or cable ties to a solid point on the boom or a point close to the boom length cable reel.[340]
   6. Mr Ginn's opinion was that the CCTV footage showed a worker leaning into the area in front of the boom length reel and that it looked like the person grabbed the end of the cable and pulled it out towards the boom head introducing tension to it.[341]
   7. Mr Ginn said that if there had been a controlled cut of the cable (that is, the employees had cut the cable), the cable would need to be secured so as to stop it retracting into the boom length reel, and you would not see a worker leaning into that area to grab the cable and pull it out. He also said that Exhibit 12.1 did not show the signs of a controlled cut, as there is nothing anchoring the cable and there is no tension on it. [342]
   8. Mr Ginn said that in a field scenario, it is common practice in conducting repairs 'to pull out the cable if sufficient length is still available, then re‑anchor the cable'.[343]
2. Mr Ginn also said in his report that his evidence at trial that he had observed black tape on the cable at the time of his inspection on 30 August 2021 was wrong.[344]

1. In Mr Birks' examination‑in‑chief in the appeal, he disagreed with Mr Ginn's view that stretching of the cable was a possible reason to explain the appearance of a slackening cable. He said that at most, the cable over its 20‑year lifespan might stretch by 25 mm. He also said that environmental changes would not have any significant impact on the length of the cable.[345]
2. He accepted the proposition put to him that if the pre-set tension equated to seven turns of the reel, this would enable the cable to gain momentum through those turns, causing the risk of a tangle. Mr Birks added that in such circumstances there is a high risk of a tangle.[346]
3. In response to Mr Ginn's statement at point 3 of his report that some tension would be introduced to the cable by pulling on it after it was retrieved from the aperture, Mr Birks said that tension would be small compared to what is specified in the repair instructions. Mr Birks also said that the cable would be 'okay' for purpose if the repair was conducted in that way.[347]
4. Mr Birks accepted that the temporary repair procedure referred to by Mr Ginn in his report 'would work'. [348] However, at that stage, he did not go into detail as to what that procedure might entail, which was a topic that was addressed in cross-examination. As I understood Mr Birks' evidence at this point, the temporary repair procedure to which he was referring was that of retrieving the cable via the aperture using either fingers or pliers.
5. Mr Birks said it would take some time to do so and he did not see anything like that occurring on the CCTV footage.[349] He said the aperture is 52 mm in one direction and slightly less across the width. He also agreed the possibility of retrieving the cable in this way is open only if the cable is not tangled within the drum.[350] Mr Birks also said that an adult hand cannot fit through the aperture.[351]
6. Mr Birks said that he had inspected the records relevant to the crane and those records did not disclose any short-term repair that might explain a broken end of a cable not retracting into the reel if it was severed.[352]
7. Mr Birks was taken to footage of him conducting a test on a crane similar to the crane the subject of this matter.[353] In that test, he attached a string to the end of the cable, and tested how far the string retracted before it lost tension, which was 4.2 m. He also said the spring is set to seven rotations.[354]
8. In cross-examination, Mr Birks accepted that the CCTV footage showed that the repair to the crane was completed by approximately 9.30 am and the crane was put into operation at approximately 9.50 am.[355]
9. Mr Birks was taken to the photographs which are Exhibits 12.1 and 12.3, which showed the cable hanging loosely out of the reel. It was put to him that this was fatal to his controlled repair scenario. He said that it was possible that there was a restraint that is obscured, saying 'It's possible that they've wrapped something around the cable where the opening of the reel is, and ... that's stopped the cable from retracting further'.[356]
10. Mr Birks said that it could be something cable tied onto the cable, which is not technically anchoring the cable, but will stop it from retracting and going around because of the small clearance between the reel and the housing.[357] He said it would need to be attached firmly, but 'not really tightly' given the tension on the cable, and accepted that the cable tie would protrude at right angles on one side of the cable.[358]
11. Mr Birks said this is an effective way of preventing the cable from entering back through the aperture, because there is not enough space for it to retract around the drum and it would generally get jammed. He said that was not something he would do or recommend doing. He also said it is unlikely they would use that method of anchoring, but it is just a possibility.[359]
12. Mr Birks was asked whether there was another method of anchoring to explain what is seen in the photographs. He answered there is no other method, saying 'it's only that method that would possibly have been used'. Mr Birks also explained that one reason the cable tie might not be visible, was that the workers had clipped the tail off it.[360]
13. Mr Birks accepted that if the cable was retrieved via the aperture and a number of loops of the cable were also retrieved, the cable would be slack as in the photograph and it would not need to be secured by a cable tie.[361]
14. Mr Birks also posited that if there was no anchor, the photographs could still depict a controlled cut if the cable had not been installed with seven turns of free tension on the reel.[362]
15. Mr Birks accepted that the cable is on a clockwork spring and that even if it came to complete rest so that there was no more tension in the spring, pulling any length of cable out will create tension in and of itself. He said the tension would immediately appear once all the slack from the cable has been removed. He accepted that the tension would not be the pre‑set factory tension.[363]
16. Mr Birks was questioned on the footage of the test he conducted on the Halifax crane in April 2023, contrasted to the test he conducted on the crane the subject of this matter on 13 December 2021. Mr Birks undertook tension measurements at the point at which the cable was cut. In respect of the test on the Halifax crane, the tension measurement was 1.64 kg at the cut point, and in respect of the test on the subject crane, the tension was 0.64 kg at the cut point. Further, he accepted that the Halifax crane had approximately 1.1 kg of tension at the point of entry to the reel, and the subject crane had zero tension at that point.[364]
17. Mr Birks said that the tension on the test he conducted of the subject crane did not reflect the tension at the time of the incident. Rather, it reflected the tension after the new cable was installed. He accepted however that the crane had the same spring. He also accepted that the tension on the cable as at 13 December 2021 was lower than the specified tension and said that he believed this was because the new cable had not been installed in accordance with the Tadano repair procedures.[365]
18. The method of retrieving the cable by rotating it on the drum with fingers until the cable presents itself at the aperture was raised with Mr Birks and he was asked, 'Does that seem possible to you?' He answered 'Possible. I haven't tried it to confirm'.[366] Mr Birks also accepted that he had never done a running repair on a cable.[367]
19. Mr Birks said that he considered there to be a very low chance that if there were seven turns of pre-tension that the employees would have been able to repair the crane as they did.[368]
20. Mr Birks accepted that if the cable had been cut on the crane as at 13 December 2021, by which point in time the new cable had been installed, that cable would not have gone around the drum seven times.[369]
21. Mr Birks accepted that there were two ways of repairing the cable. The first was by splicing one cable end to another cable end. The second was to take the cable end and connect it directly back into the boom end.[370] Mr Birks also accepted that splicing the cable would not require work to be done at the boom head.[371] Mr Birks also said that it was possible from his viewing of the CCTV that both methods were used to try and repair the cable.[372]
22. In re-examination, Mr Birks said that at the time he tested the crane on 13 December 2021 he did not have a copy of the repair manual for the crane. He also was not aware of the number of turns relevant to the repair procedure for the crane specified by the manual.[373]

1. Mr Ginn explained that his experience with cranes included breakdown repairs, mechanical repairs and electrical repairs, and included rebuilding and overhauling boom length indicator reels.[374]
2. Mr Ginn said he had performed repairs to boom length cables on numerous occasions and performed repairs to boom length reels. Mr Ginn said he had previously performed the task of retrieving a fully retracted cable via the aperture.[375]
3. He explained that task as follows. Given the significance of this evidence to the appeal, I will set the exchange out in full:[376]

Can you, please, describe how it's done?‑‑‑So you rotate - you lean through the opening in the reel and actually ‑ ‑ ‑

I will just stop you there. When - I would like to take this slow, if we can?‑‑‑Sorry. Sorry.

But when you say "lean through", what are you actually describing? What part of the (indistinct)?‑‑‑Okay. So on the access of the reel, there's a small opening that on these style cranes is approximately 50 millimetres square. You can actually lean through there with your fingers and actually rotate the drum downwards to bring it clockwise which ‑ ‑ ‑

Right. So you you're indicating with your index finger?---Finger. Yes. To actually ‑ ‑ ‑

And you're pushing in a downwards motion?---Motion. Yes. To rotate the reel, which then, as the tail comes around, the broken bit of cable, it drops down, which then allows you to pull the cable back out.

Right. So if the end of the cable is not - when one first inspects it, if the end of cable is not immediately presented at the aperture opening?‑‑‑Yeah.

‑ ‑ ‑ you follow the procedure you've just described?‑‑‑Yes.

And then would it be correct to say that within one revolution at maximum, the broken end will present itself?‑‑‑Yes.

And what happens when it comes into view?‑‑‑You can then lean in, depending on the size of the fingers, you can actually use a pair of needle‑nose pliers (indistinct) fingers, and actually just pull it - pull it out till you actually get hold of it, and then you can pull it back towards the end of the boom head to carry out a repair.

1. Mr Ginn explained that in his view the procedure which can be seen on the CCTV footage is that the workers have got hold of the end of the broken cable and pulled it back out to the boom head and have secured it to the anchor point on the boom head.[377] He regarded this as being consistent with a running repair.
2. He said that the photograph that is Exhibit 12.1 does not show the signs of a controlled cut as there is nothing anchoring the cable, and there is no tension shown on the cable. He also said he could not see any signs of anchoring of the cable in the photograph.[378] Mr Ginn explained the appearance of the cable in Exhibit 12.3, saying either the internal clockwork spring had lost some form of tension, or the cable had retracted too far and wound the tension off the cable.[379]
3. At the conclusion of Mr Ginn's examination-in-chief, he confirmed what was set out in his report that he was mistaken when he said at trial that he observed insulation tape on the cable when he conducted his inspection on 30 August 2021.[380]
4. Mr Ginn said in cross-examination that for the purposes of the report he prepared for trial, he was able to access the operations, repairs and service manuals for the crane. He accepted that in his first report prepared for trial, that based on the materials provided to him by HotWeld, he had concluded that 'the pre-operational, and inspections recorded in the logbook, and certificate file are in accordance with and exceeding the manufacturer specifications'.[381]
5. Mr Ginn was taken to the operation and maintenance manual for the crane, in particular the diagram on page 125 that displayed the AML, which included a bar graph.[382] Mr Ginn said that the bar graph gives an indication of 'whether or not something is at green, yellow or red'.[383] By way of explanation, the manual itself describes these as 'safe (green), warning (yellow), or critical (red) level of the moment ratio displayed in the bar graph'.
6. Mr Ginn said the beacon on the outside of the crane cab is the external display of the moment ratio indicator. Further, he said that any error relating to the cable will also show on the AML.[384]
7. Mr Ginn was also asked about the rotary switch inside the crane. He explained that if that rotary switch was put from off to position 'PTO1', that powers up the AML and supplies hydraulic pressure to the crane circuits. He accepted this means that the AML will be on display and operational.[385]
8. Mr Ginn was taken through the process of setting the potentiometer at some length and accepted it is critical that it is always set to 5.2 m. He explained that this represents the measurement from the centre of the boom head sheath to the centre of the boom pivot pin. It is not necessary to describe that measurement in any further detail.
9. Mr Ginn also accepted that the AML display panel, which appears in the diagram on page 126 of the operation and maintenance manual, displays the boom length. [386] By way of explanation, this appears in the box in that diagram which is associated with the reference number 19.[387]
10. Mr Ginn accepted that the cable was listed in the operation and maintenance manual as a safety device, because the accuracy and reliability of the cable are so important.[388]
11. Mr Ginn accepted that absent any recorded issue with the cable and its respective physical and electrical components, 'you would have to take it' that the cable is 'working to operation'. Further, the effect of Mr Ginn's evidence was that the materials he had reviewed in respect of the crane did not indicate any issue with the cable, or its components.[389]
12. Mr Ginn accepted the proposition that if there was no issue with the cable, its parts and the display, and the cable had been manufactured in accordance with the Tadano specifications, and the clockwork spring had not deteriorated over time, then the cable, if severed, would reel towards the opening of the drum and then it will reel a further 4 to 5 m within the drum reel, but that is variable depending on the age of the reel.[390]
13. Mr Ginn said that he had watched the footage of the crane in operation on Friday, 13 November 2020 and he did not see any signs of slackening in the cable.[391]
14. Mr Ginn was taken to Exhibit 12.1 and he said that if that reflected the extent to which the cable had retracted after being cut, then the cable would not have birdcaged back into the reel, and thus would not have damaged the spring.[392]
15. Mr Ginn accepted that a slackening in the cable of about 1 m will be visible when the boom is extended. He also said this does not create a safety issue, as the cable is measuring a longer distance than the length actually extended on the boom. He said that if there is any slack in the cable, this decreases as the cable goes out.[393] He also said that if there is slack in the cable there will be an error message sent at either full boom retraction or at the midpoint extension/retraction.
16. In respect of what constitutes the midpoint extension, he said the boom has five sections of extension, which are broken up into two big sections, being sections 1 and 2, and then sections 3, 4 and 5. He said the error message will be sent as the boom moves past the point between these two big sections, whether in extension or retraction.[394]
17. Mr Ginn was taken to footage of the crane said to have been taken on 16 April 2021. The parties accept that by then, the cable on the crane had not been replaced. This video was trial Exhibit 13. The video depicted a person at the reel end holding the cable with a person at the end of the boom disconnecting the cable and then releasing it. The footage included an image of the AML which stated that the boom length was 7.6 m before the cable was disconnected. After it has been disconnected, the AML stated that the boom length was 4.1 m.[395]
18. After having watched the footage, Mr Ginn accepted the following propositions from what he could see in the footage. The cable was showing a good amount of tension, there was preset tension in the reel sufficient to prevent a slackening of the cable by any length, the internal clockwork spring was working sufficiently to prevent a slackening by any length, and the spring had not aged in a way that had affected the tension nor was it faulty.[396]
19. It was put to Mr Ginn that assuming the spring was fine and in working order, and the reel had been set to specifications, if the cable was cut at the anchor point while the boom was resting (in its fully retracted position), the cable would retract past the opening of the reel into the reel by another 4 to 5 m. Mr Ginn accepted this proposition.[397]
20. Mr Ginn also accepted that in such a scenario, if the cable had not been retrieved by someone manipulating the reel with their fingers or long nose pliers, then the drum cover would need to be removed to find the cable.[398]
21. Mr Ginn was taken back to Exhibit 12.1. He accepted that two potential reasons for the appearance of the cable were that first, there was something attached to the cable near the opening preventing it from wheeling back to the reel, and second, the reel had lost its tension. He also accepted in respect of the second potential reason that this would mean the cable had lost its tension to the extent of negative 5 m.[399]
22. Mr Ginn explained that the spring on the reel is the mechanism by which the cable retracts. It does not retract merely because it is fixed to the boom. He said that if the reel had lost tension to the extent of negative 5 m, then at full extension, you will start seeing a little bit of slack. He clarified this by saying 'if it's at the right angle, you will see something'.[400] He also accepted that an error would be displayed. He accepted that if there was no slackening and no error message then you can exclude the possibility of the cable having lost its tension as an explanation for Exhibit 12.1.
23. It was then put to him that the only remaining possibility that is open is that the cable is being secured in a way that cannot be seen in the picture and he agreed with that proposition.[401] He was not however cross‑examined on his evidence given in examination‑in‑chief that it is possible the cable may have gone back onto the reel, retracted too far and this wound the tension off the cable.[402]
24. Mr Ginn was taken to Exhibit 12.2. He was asked whether the depiction of the cable in that photograph was consistent with the cable having been spliced. He said that was not necessarily the only explanation, saying that in the past he had seen outer casings damaged 'and then the cable actually snapped like that as well, from fatigue'.[403]
25. He was taken through the process of how the cable would be 'spliced'.[404] He accepted that a way of anchoring the cable is to tie it to an eyelet with a cable tie. He also accepted that another possibility is to secure the cable tie at the reel opening to prevent the cable from retracting back.[405]
26. He said the only time he would splice the cable is to join it as a temporary repair to pack up the machine to make it safe. He said he would not do it if the boom was going to be extending out again, saying in that scenario he would re-anchor the cable to the boom head to prevent any possibility of the spliced connection pulling apart.[406]
27. In respect of the eyelets, Mr Ginn explained that the eyelets are manufactured so that you can spring them open and put the cable back into them.[407]
28. Mr Ginn agreed that if there is a complete disconnection of the cable, or it is pulled apart, that will show an error sign on the AML. The following exchange then took place:[408]

But if it's also beginning to start to pull apart, that's also going to show an error, isn't it? - Depending on how far apart it is in the process of deteriorating or breaking apart.

Yes? - It - and that. It will go for a long time, before you would actually see something like that - before you would see an error code come up.

Or if it just hasn't been reconnected properly, an error could show? - Yes. Yes. If it's not connected correctly. Yes. And creates too high resistance, and then it brings up an error code.

1. Mr Ginn said that from watching the footage he could not determine whether there was an attempt to initially splice the cable and then later on, to solder it to the anchor point.[409]
2. Mr Ginn accepted that the maximum stretching of the cable that can occur is about 0.1 cm without the need to recalibrate the AML. He also accepted the cable is not going to stretch by 4 m. And, he accepted that wear from UV exposure will most likely occur at the anchor end of the cable because that is the part that is always exposed.[410]
3. Mr Ginn accepted that he was mistaken when he gave evidence at trial that he observed tape on the cable. He explained that tape on the cable could be explained by a previous splicing repair, or it could be that someone has seen something that is suspect on the outer cable so they have covered it up to prolong the life of the cable.[411] He explained that an 'old school way' to protect the cable is to put tape on the eyelet while the crane is being transported. He said this stops possible damage being caused to the cable from the cable coming into contact with the eyelet while being transported. He also said this has been phased out.[412]
4. He said that at the time of giving evidence at trial, he was aware of the specified preset tension for the reel.[413]
5. He was then taken at length to his evidence at trial in which he described what would have happened to the cable if it had been cut. He accepted that evidence was not in the report he provided prior to trial.[414]
6. He accepted he had not provided the service manual to the appellant's legal representatives prior to trial. He was cross-examined about Mr Gregory's requests for the service manual. He said he went to the Tadano lawyer at the time and they said that if the appellant's legal representatives wanted it they had to go through the police.[415]
7. In re‑examination, Mr Ginn explained that the external light at the top of the crane is the orange beacon for road travel and site driving.[416]
8. Mr Ginn was taken to the footage of the crane operating on the Friday and asked whether the cable was showing any slack. After having watched certain parts of the footage, Mr Ginn said there was 'nothing telltale sticking out', but he could not be 100% sure as to whether the cable was or was not slack.[417]
9. Mr Ginn explained that as the boom extends, the tension applied on the spring is increased, and that is transferred into momentum in the cable as it is wound back into the reel.[418]
10. Mr Ginn said that it was not the case that every time a cable retracts into the reel, you will have to remove the large cover on the cable housing.[419]
11. Mr Ginn was once again taken to Exhibit 12.1. He accepted the proposition that another scenario that explained the picture was that a person had retrieved the cable from the drum and then continued to retrieve it by looping it around, effectively unspooling it from the drum. He also said that he had 'actually come across that a few times with people doing repairs'.[420]
12. Mr Ginn explained the difference between splicing and stripping, saying splicing is a joining of the working part of the cable, and stripping is when you remove 'an insulation to gain access to the wire to complete a solder termination'. He was taken to Exhibit 12.2 and said he doubted the cable had been spliced because he could only see one wire exposed. He accepted that the cable was actually stripped.[421]
13. Mr Ginn said that irrespective of whether the cable is spliced, or soldered, afterwards you have to go to the potentiometer to make sure that the boom retractor length is reading correctly.[422]
14. Mr Ginn said that an 'old school way' of protecting the cable was putting tape around a certain part of the cable so that it does not chafe on the eyelets during transport.[423] He was asked to clarify his use of the phrase 'old school' in cross-examination. He said that a lot of older generation operators had 'little tricks' to prolong the life of the machine, however that is uncommon now.[424]
15. He was taken to the part of his evidence at trial when he said that if the cable retracts back into the reel it breaks off the anchor point at the spring. He was asked to clarify whether that always happens when a cable retracts into the reel and he said no.[425]
16. I permitted the appellant's counsel to cross-examine Mr Ginn on the proposition that a possible explanation for the picture in Exhibit 12.1 was that the end of the cable had been retrieved from inside the drum and then 'looped out'. I did so as that was not a matter raised by Mr Ginn in his appeal report.
17. In that further cross-examination, Mr Ginn said he had only seen that done a couple of times by inexperienced people.[426] Mr Ginn explained this scenario in the following exchange: [427]

So the third scenario is they pull it around, get to the severed end and they hang on to the severed end but push it in a little bit to the bottom side, which then you can see the loop coming back down from the top, and then you pull that - that bit of loop and you do that a couple of times. So you almost - you're - you're finding the end and then you keep trying to push it - manipulating and push the loop back in underneath and watch it drop back down from the top side, which then gives you the contact parts, approximately on a reel like that, 300 millimetres around to then pull that further to bring your - end of your cable out.

Right. So ‑ ‑ ‑?‑‑‑But it's not a common practice because you then create too much cable out that's required.

Does any part of doing that, creating that loop, cause it to then appear slack?‑‑‑Yes, because you're taking cable off the drum without turning the - the spring.

1. Mr Gregory was called by the appellant to give evidence and was cross‑examined. Mr Gregory's oral evidence was predominantly directed to clarifying aspects of the pre-trial disclosure provided to him as the appellant's solicitor. It is not necessary for the purposes of disposing of this appeal to summarise his oral evidence.

1. In oral submissions, the parties' respective positions developed significantly from their written submissions.
2. I will record what I take to be the material oral submissions made for the parties, subject to one qualification. Both counsel made detailed oral submissions as to what can be observed in the CCTV footage. I will not summarise those submissions, but have addressed them to the extent that I consider necessary to dispose of this appeal.

1. The appellant emphasised two matters. First, the appellant had lost the opportunity to impugn the credibility of the evidence of Mr Hawkins and Mr Babich that the cable was cleanly cut.[428] Second, that having regard to the additional material, there was another reasonable hypothesis for the cable being severed consistent with the appellant's innocence, namely that it had been cut by someone other than the appellant.
2. The appellant also contended that the credibility of the employees' evidence that they observed a severed cable was undermined.
3. I asked the appellant's counsel at the commencement of her oral submissions what the position was regarding Mr Bentley's evidence. Initially, the appellant's counsel said that Mr Bentley's evidence was 'an anomaly that we can't explain on appeal, and that's because of all of this new evidence'.[429] Ultimately, the appellant took the position that Mr Bentley might have been attacked at trial on his evidence that the cable was simply not there, having regard to the new evidence.[430] As I understand it, the appellant's counsel contends that Mr Bentley's evidence the cable was 'not there' does not sit consistently with expert evidence that it would have been necessary to remove the drum housing to retrieve the cable, which did not occur. The appellant therefore says that the cable could not have been severed at the point in time that Mr Bentley first observed it.[431]
4. The appellant did not suggest the additional evidence impugned the learned magistrate's finding that there was not a reasonable inference that the cable broke over the weekend. The appellant did not seek to reagitate that issue on the appeal, also saying that hypothesis 'doesn't make sense' and is inconsistent with all of the objective evidence.[432]
5. In respect of Mr Hawkins' evidence regarding the photographs which ultimately became Exhibit 12, the appellant submitted that with the additional material, it would have been open at trial to challenge Mr Hawkins' evidence on the basis that he had lied.[433] The appellant says that Mr Hawkins in his examination-in-chief was emphatic that all of the photographs were taken prior to any attempt to repair.[434] The appellant also says that Mr Hawkins had the opportunity when the red circles were placed on the photographs to make clear then that they did not all reflect the state of the cable when first observed.
6. In respect of the learned magistrate's findings regarding the photographs, the appellant submitted that while the learned magistrate found that the photographs were of limited assistance, his Honour still found that they were consistent with the evidence of Mr Hawkins and Mr Babich. Thus, the learned magistrate still relied on the photographs in coming to his Honour's finding of guilt.
7. The appellant submitted that the additional evidence adduced on the appeal as to when the photographs were taken was 'fresh evidence'. In this respect, the appellant relied on, in particular, the numerous requests that had been made prior to trial by his solicitor to the police prosecuting branch in respect of the metadata for the photographs.[435]
8. The appellant's counsel accepted that Mr Babich did not 'really go into the photographs at much at all, really, and that primarily his evidence is from what he observed with his own eyes'.[436] The appellant's counsel however submitted that cross-examination about Exhibit 12.1 might have proceeded differently if trial counsel had the information regarding when that photograph was taken. The appellant also says that in the MMS exchange between Mr Casagrande and Mr Babich, Mr Casagrande asks him to send through photographs of the cut cable, and Mr Babich then sends through photographs which the appellant says includes Exhibits 12.1, 12.5, 12.4 and 12.3.[437]
9. The appellant's counsel says that the appellant lost the opportunity to test Mr Babich's memory about actually observing a clean cut.[438]
10. Further, the appellant submitted that the additional evidence demonstrates that none of the photographs from the reel end reflect the state of the cable when it was first observed, and accordingly the only photographs which might depict the cable when first found are Exhibits 12.4 and 12.6 (taken at 08:24:14 and 08:24:29 respectively), which do not reveal a clean cut.[439]
11. The appellant says that at the point in time that Mr Babich can be seen leaning in towards the reel end, the cable was still intact. The appellant says that Mr Babich was creating extra length in the cable for the purposes of effecting a repair.[440] I pointed out that Dr Hutchison's report was to the contrary, stating that the footage showed Mr Babich leaning in to retrieve the boom retractor cable, the appellant's counsel said she did not rely on that part of the report. I set out the appellant's submissions summarised in this paragraph in greater detail below at [562] - [563].
12. The appellant's counsel also suggested that the photographs could be used to contradict Mr Babich's evidence that the cable was not there when he first observed it, saying Exhibits 12.1, 12.2, 12.3 and 12.5 show that the cable was there.[441]
13. The appellant's counsel submitted that the principal reasons that the appellant did not obtain a further report regarding the appeal hypothesis prior to trial were that the appellant had not been provided with the repair manual by Tadano and also that he was not aware of Mr Hawkins' evidence regarding the repair process.[442]
14. In respect of the appeal hypothesis, the appellant submitted that neither Mr Hawkins nor Mr Babich gave evidence that they had retrieved the cable from the aperture of the reel housing.[443]
15. The appellant submitted that the behaviour of Mr Hawkins, Mr Babich and Mr Bentley was not consistent with the cable having been severed. The emphasis of this submission was that their conduct did not evince the level of confusion or concern that would be expected if the cable had been severed.[444] The appellant also said that it was puzzling that Mr Hawkins and Mr Babich did not take photographs immediately upon the crane being brought around.[445]
16. The appellant's counsel submitted that it was an 'oddity' that Mr Hawkins happened to be there that day given he was a mechanic.[446]
17. In respect of the appellant not obtaining the service manual prior to trial, the appellant submitted that the defence should not be expected to go to the length of issuing a subpoena.[447]
18. As to the appeal hypothesis, the appellant suggests that it is possible that one of Mr Hawkins, Mr Babich or Mr Bentley cut the cable at a point in time up to when Mr Hawkins is seen working on the cable from approximately 08:23:00. The appellant's counsel said that it is possible the cable was cut by Mr Hawkins at around 08:23:12.[448] This submission was then clarified and the appellant's counsel explained that the position was that the cable had been cut by Mr Hawkins between 08:23:12 to 08:23:16 and it is at that point in time that there is full severance of the cable.[449]
19. The appellant's counsel also submitted that the timing of the photographs could have been used to challenge Mr Hawkins' evidence regarding the depiction of the cable in Exhibit 12.4, where he explained the grease might have been present because he did not want to wipe anything before he took the photograph. The appellant says that Mr Hawkins is shown wiping something in the area of the anchor at 08:23:31, which is before Exhibit 12.4 was taken.[450]
20. In respect of Mr Bentley, the appellant submitted that the reason he walked from the laydown area towards Mr Babich was because Mr Babich had called him over. The appellant says that when Mr Bentley got into the crane to drive it over to the set up area, it is plausible that something within the cabin alerted him to there being a problem with the cable.[451] The appellant also said that Mr Bentley noticed that the cable was damaged while conducting his pre-start check, or Mr Bentley and Mr Hawkins noticed that it was damaged during the two minute and eight second gap in the footage starting at 08:18:12.[452]
21. The appellant referred to the trial Exhibit 13, which is footage of the test undertaken by Mr Birks after the cable had been replaced, saying that it showed there was nothing wrong with the spring.[453]

1. The respondent says the reason that there is inadequate evidence as to the detail of the repair of the crane is because, on the case advanced by the appellant at trial, it did not matter how the repair was done, just what caused the need for the repair.[454]
2. The respondent emphasised that an appeal is not an opportunity to rerun a trial in a manner the appellant wishes he had at first instance.[455]
3. The respondent says that prior to trial there were four possible scenarios to be considered as to how the cable was severed. First, that it severed during the lifting operations on the Friday. The respondent says this theory was abandoned by the appellant, having regard to the evidence at trial that the green exterior beacon was flashing during the crane being put away, thus indicating there was no fault with the crane. Second, the cable spontaneously broke over the weekend. This theory was run at trial and did not involve fully impeaching many witnesses. The learned magistrate rejected this theory. Third, the prosecution case at trial, that the appellant severed the cable. Fourth, that one of the employees severed the cable.[456] The respondent says this fourth scenario was always one that could have been run at trial, pointing in that respect to the appellant's submissions on the appeal that were based on the CCTV footage tendered at trial.[457]
4. In respect of the photographs disclosed prior to trial, the respondent says that the appellant's legal representatives should have contacted the investigating officer, explained that the photographs supplied were not the original electronic versions and asked the investigating officer to tell them where those versions were.[458]
5. The respondent said that the issue of whether the employees had cut the cable on the Monday was raised in Mr Birks' report prior to trial,[459] and was confirmed in his evidence at trial.[460]
6. The respondent said that the additional evidence pertaining to the times at which the photographs were taken does not impugn the evidence of Mr Babich. In this respect, the respondent pointed to the following matters. Mr Babich did not have a 'line of sight' to Mr Hawkins when he took the photographs, thus did not know when they were taken.[461] Mr Babich gave limited evidence pertaining to the photographs. Mr Babich gave evidence as to what he recalled seeing, which he described as a chamfered cut, and when he was presented with a photograph that did not accord with his memory, he said so.[462] The respondent also said that on the appeal hypothesis, Mr Babich was either mistaken about something that it would be very difficult to be mistaken about, or lying. The respondent says that the additional evidence does not impeach the credibility of Mr Babich's evidence.[463]
7. The respondent said there appear to have been two repairs undertaken. The first likely involved using tape (to rejoin the ends of the cable), and the second involved re‑terminating one end of the cable up to the boom end.[464]
8. The respondent said that Mr Bentley's evidence is critical to the appellant's case now advanced, because Mr Bentley's evidence was that the cable was gone when he first observed the crane. And, the respondent said, on that evidence, the appeal hypothesis is 'out the window'.[465]
9. The respondent said the CCTV footage of Mr Bentley's inspection corroborates his evidence. The respondent pointed to the part where Mr Bentley pauses in front of the part of the crane arm where the cable would ordinarily be situated, and then immediately walks back towards the set-up area.[466] The respondent said, in effect, that this footage supports the proposition that Mr Bentley had seen that the cable was not there, which he then went to report to his superiors.[467] The respondent also said that on the appeal hypothesis, Mr Bentley was either mistaken about what he saw when he did the pre-start check, or lying. The respondent said that the additional evidence does not impeach Mr Bentley's evidence.[468]
10. The respondent also pointed to the footage not showing any external warning light flashing when Mr Bentley drives the crane over, such as to indicate there was a fault with the crane.[469]
11. The respondent said that on the appellant's case on appeal, there is no evidence the cable was damaged (as opposed to severed) to such an extent that the alarms would have been activated, thus alerting the employees that there was a problem.[470] The respondent also said that the appellant's submission that the cable was not cut at the point that Mr Babich leans in and pulls the cable is not viable from the CCTV footage.[471]
12. In respect of Mr Hawkins, the respondent accepted that the additional evidence pertaining to the times at which the photographs were taken does raise a question about the credibility of his evidence. However, the respondent said that simply because his credibility is impeached does not suggest that the conviction ought not stand on either the new or fresh evidence tests.[472]
13. The respondent's counsel also referred to his written submissions regarding Mr Hawkins, in which the respondent said that the new evidence is potentially relevant to the credibility of Mr Hawkins, insofar as it suggests that three of the photos were taken after the first repair attempt had commenced. The respondent however says the appellant overstates the impact of the additional evidence on Mr Hawkins' credibility. The respondent pointed in particular to the following matters: Mr Hawkins acknowledged that at least one of the photographs was taken during the repair, the concept of 'repair' was not tightly defined in the questions asked of him, and the red circles on the photographs are consistent with communicating the areas of the crane that were damaged.[473]
14. The respondent says that it was always a theoretical possibility that the workers had cut the cable, however it was forensically objectively rational not to pursue that possibility where there were more amenable lines of defence to run.[474]
15. In respect of the expert evidence adduced on appeal, the respondent pointed to the following matters. Mr Ginn was clearly more experienced than Mr Birks in respect of repairing cranes. Mr Ginn gave evidence that he had previously repaired a cable by retrieving it via the aperture. Mr Birks conceded it was possible to repair the cable by retrieving it from the aperture.[475]
16. The respondent said that in light of this evidence, the question as to whether the cable would, or had, fully or partially retracted into the housing was somewhat academic.[476]
17. The respondent referred to the appellant's complaint that Mr Ginn gave evidence at trial that if the cable breaks when the boom is fully retracted, the cable is less likely to fully retract into the housing, when this was not a matter included in his report. The respondent says this cannot cause any prejudice to the appellant, predominantly for two reasons. Mr Birks gave evidence two days later, so that issue could have been raised with him. Also, on the case theories run by the appellant at trial, whether the cable had fully or partially retracted was not relevant.[477]
18. The respondent also raised issues concerning the credibility of Mr Birks' evidence on appeal. The respondent raised two matters. First, the respondent said that Mr Birks did not disclose in his report prior to trial, or in his evidence at trial, that when he carried out the function tests on 13 December 2021, he had disconnected the warning beacons. The respondent says this was an important omission. At trial, the question of whether the green beacon on the crane could be seen flashing on the crane immediately before the crane was parked up on the Friday was an important issue in respect of the case theory at trial that the cable had severed on the Friday. Second, the respondent said that Mr Birks did not in his report for the appeal set out that he accepted it was possible to retrieve the cable via the aperture, which he only accepted in cross-examination.[478]
19. The respondent pointed to the tests undertaken by Mr Birks in respect of the subject crane in December 2021, which showed that the cable only retracted two and a half turns of the drum. The respondent said this is something you would expect to be in Mr Birks' report, however it was not.[479]
20. The respondent said that the evidence on appeal has to be considered together with all of the evidence adduced at trial. In this respect, the respondent emphasised that the appellant was 'the only person to approach the crane from when it was laid up on the Friday until Mr Bentley came back on the Monday morning' and the learned magistrate rejected the appellant's evidence that he was there to urinate.[480]
21. In respect of the appeal hypothesis, the respondent raises the question of why Mr Hawkins would take photographs of the cable if he knew the cause of the damage. The respondent also raises that it would be an extraordinary coincidence that Mr Hawkins, Mr Babich and Mr Bentley would make up a version of events that the cable was severed when they observed it, and the appellant is then observed on the CCTV over the weekend in close proximity to the crane. Further, the respondent says the three employees could not possibly have known whether the CCTV footage would corroborate that version of events.[481]
22. The respondent also said that the proposition that they would make up such a story does not make any sense in circumstances where the unsafe lift on the Friday was 'already public knowledge'.[482]
23. The respondent said that the appellant's submission that Mr Hawkins' presence there that day is suspicious because it suggests 'they knew there was something that needed fixing' is baseless and explained by, amongst other matters, Mr Hawkins having many different roles, which include rigger, crane operator and a mechanic who 'does the low-level mechanic stuff needed'.[483]
24. The respondent emphasised that Mr Hawkins' evidence was not an indispensable link in the prosecution case, saying that there was 'a range of evidence against [the appellant] as to whether he cut the cable or not'.[484] The respondent says that even if the additional evidence regarding the metadata for the photographs was regarded as 'fresh evidence', and it impugned Mr Hawkins' credibility, that would not result in a likelihood of a different result before the learned magistrate.[485]

1. In reply, the appellant's counsel confirmed that the appellant's position was that the cable had been cut by Mr Hawkins at 08:23:12.[486]
2. The appellant said that Mr Hawkins in his evidence did not volunteer that by the time the photograph at Exhibit 12.2 had been taken, he had spliced the cable. Rather, Mr Hawkins said that by that point he had tied the cable off.[487]
3. The appellant's counsel also addressed the possible reasons for Mr Bentley walking away from the crane during his pre-start check towards the set-up area. The appellant said that may have been because Mr Babich had called him over, and not because Mr Bentley had gone to report a problem with the cable not being there. The appellant said that Mr Bentley's body language was equally consistent with a response to his supervisor calling out to him. The appellant also said that Mr Babich's evidence on the issue of Mr Babich waving at Mr Bentley to hurry up was an 'anomaly'. [488]
4. During the course of the submissions on this topic, I pointed out to the appellant's counsel that Mr Bentley's evidence was 'I walked to let [Mr Babich] know that the crane wasn't a goer'.[489] The appellant's counsel said that 'we do not accept his evidence'.[490]
5. In respect of Mr Hawkins' evidence that when they first found the damage they put the crane into crane mode, the appellant said it was 'somewhat odd' and that common sense would dictate that if the cable was disconnected, 'no computers need to be switched on to know that the boom is not going to be viable'.[491]
6. The appellant raised as an alternate possibility that when the crane had been brought over, Mr Hawkins put it into crane mode as part of the ordinary set up of the crane and that alerted the workers to an error with the cable that needed fixing.[492] The appellant also maintained that another possibility was that Mr Bentley had put the crane into crane mode during the pre-start check and that had alerted him to an error with the cable.[493]
7. In respect of the respondent's submission that it was open to the appellant to run the appeal hypothesis at trial, the appellant pointed to the following matters. The evidence regarding the state of the cable and the repair process came out in oral evidence at trial and was not in the written statements. Ascertaining what is depicted in the CCTV footage is assisted by knowing the precise times at which the photographs are taken. The appellant said that it was not possible to run the appeal hypothesis at trial with any degree of persuasiveness.[494]
8. The appellant accepted that the foundational premise for the appeal hypothesis was that there was damage to the cable which, by the Monday morning, had manifested itself in a way that it could either be seen, or would have set the alarms on the crane off.[495]
9. The appellant says that the existence of the metadata could have laid a better foundation to cross-examine Mr Hawkins and perhaps Mr Babich at trial.[496]

1. Given the sheer breadth of evidence adduced on the appeal, and the extensive approach taken by the appellant on appeal, it is useful to explain the principal propositions that the appellant seeks to advance having regard to the additional evidence. There are two principal propositions.
2. First, the additional evidence impugns, or has the potential to impugn, the credibility of the evidence of Mr Hawkins, Mr Babich and Mr Bentley as to what they observed regarding the state of the cable.
3. Second, the additional evidence gives rise to the availability of the appeal hypothesis. That is, there is a reasonable possibility the cable was damaged, but not severed, when the employees first observed it. Mr Hawkins then cut the cable to facilitate its repair, and Mr Hawkins, Mr Babich and Mr Bentley, in conjunction with one another, fabricated their evidence at trial to avoid possible repercussions from the unsafe lift carried out on Friday 13 November 2020.
4. The appeal hypothesis itself is based on the premise that if the cable had been severed when the employees first observed the cable, it was not possible for the cable to have been repaired in the manner described by Mr Hawkins in his evidence, and as is depicted in the CCTV footage. The appellant also says that the appeal hypothesis is supported by the actions of Mr Hawkins that can be seen in the CCTV footage pertaining to the cable. In particular, the appellant says that a possible interpretation of the footage is that Mr Hawkins can be seen cutting the cable while it remained intact.
5. The two principal propositions are interlinked. That is, the extent to which the credibility of the evidence of Mr Hawkins, Mr Babich and Mr Bentley is impugned informs an assessment of the availability of the appeal hypothesis. Likewise, the extent to which the appeal hypothesis is available informs an assessment of the credibility of their evidence.
6. The remainder of these reasons is organised in the following order:
   1. Introductory observations: [466] - [475].
   2. The impact that the additional evidence has on the credibility of the evidence of Mr Hawkins, Mr Babich and Mr Bentley: [476] - [523].
   3. The availability of the appeal hypothesis: [524] - [591].
   4. Conclusion regarding Grounds 1 and 2: [592] - [594].
   5. Whether the additional evidence is new or fresh evidence: [595] - [652].
   6. Consideration of the appellant's loss of opportunity contentions: [653] - [667].
   7. No issue raised regarding breach of disclosure obligations: [668] - [670].
   8. Final conclusion: [671] - [673].

Introductory observations The appellant's submissions referable to the Grounds of Appeal

1. As I have explained earlier, Ground 1 asserts the evidence of Mr Hawkins, Mr Babich and Mr Bentley as to their observations of the cable 'can no longer be relied upon' as truthful evidence. Further, Ground 1 asserts that it is not possible for the cable to have been repaired in the way it was, if it had in fact been cut by the appellant. The effect of Ground 1 is to assert that the additional evidence gives rise to a doubt as to the appellant's guilt, and thus there is a miscarriage irrespective of whether the evidence is new or fresh. Ground 2 asserts that the totality of the matters particularised are likely to have caused a different verdict, namely an acquittal. Thus, Ground 2 is directed to the orthodox formulation of the test where additional evidence is fresh evidence.
2. A significant aspect of counsel for the appellant's oral submissions was not directed to the impact of the additional evidence in the manner reflected by Grounds 1 and 2. Rather, a significant aspect of counsel for the appellant's oral submissions was directed to submitting that the appellant had lost the opportunity to present the appeal hypothesis at trial, and had lost the opportunity to cross‑examine Mr Hawkins, Mr Babich and Mr Bentley regarding their observations of the cable when each had first observed it.
3. An asserted loss of opportunity, in particular an asserted loss of opportunity to cross‑examine, does not ordinarily result in the credibility of a witness being undermined to such an extent that the appeal would be allowed within the orthodox formulations of the tests applicable to fresh and new evidence.
4. As I have explained at [69] and [70] above, I do not consider the appellant's emphasis on a loss of opportunity supports the appellant's contentions as to the impact of the additional evidence within the meaning of Grounds 1 and 2. Instead, the appellant's emphasis on the loss of opportunity appears to fall within the ambit of a Hillstead - like ground. As I have said earlier, I will still address the appellant's expanded argument as there were substantial submissions directed to that topic.

The bounds of the appeal by reference to the appellant's submissions

1. The appellant's approach on appeal constrains the matters I need to consider in the following respects.
2. The appellant does not suggest the additional material affects the learned magistrate's rejection of the appellant's evidence. The learned magistrate's reasons for rejecting the appellant's evidence as to why he was near the crane on the Saturday are unimpeachable. As the learned magistrate sets out, the appellant's explanation that he was there to urinate is utterly implausible. The additional material does not in any way affect that conclusion. Accordingly, in making the requisite assessment for the purposes of this appeal, I put that evidence to one side.
3. The learned magistrate also found that any potential damage to the cable caused by the unsafe lift was minimal, and that there was not a reasonable inference open that the cable had severed by attrition. The learned magistrate gave considered reasons for each of those findings. The appellant does not suggest those findings are undermined by the additional evidence, nor does the appellant suggest that those findings were not open to his Honour. Moreover, the appellant expressly disavowed the availability of the inference that the cable severed by attrition, saying it is inconsistent with all of the objective evidence. On my assessment of the evidence at trial and on appeal, and having considered the learned magistrate's reasons for rejecting the availability of such an inference, and in the absence of any submissions explaining how that inference is open, I am satisfied that an inference that the cable severed by attrition is not open. I therefore proceed on the basis that there is not a reasonable inference open that the cable had severed by attrition.
4. It necessarily follows that on the appellant's case on appeal, the only scenarios for consideration are that Mr Hawkins (or possibly Mr Babich or Mr Bentley) cut the cable, or the appellant did so.[497] The prosecution case that the appellant cut the cable depends upon proof that the cable was severed when Mr Bentley commenced his pre-start check of the crane.

The learned magistrate's reasons regarding the photographs

1. It is worthwhile to again set out the learned magistrate's reasons regarding the photographs:[498]

[Mr Hawkins] confirmed he took the photographs. Now, there was an issue with the photographs. And they are of limited assistance. In my view, they're consistent with the evidence of Mr Babich and Mr Hawkins.

But if there was no direct evidence from those two witnesses the photos themselves may have been problematic, because it was accepted in cross‑examination by Mr Brett Hawkins, who took the photographs, that he did ultimately take them at various intervals. And that's borne out by the CCTV as well. And they were taken, some of them at least, and at least one, was taken partly after his running repair had commenced.

1. In this passage, the learned magistrate recognised that at least one, and possibly some, of the photographs were taken after the repairs had commenced. His Honour considered that the photographs were of limited assistance, but also held that they were consistent with the evidence of Mr Babich and Mr Hawkins. It seems to me this passage taken as a whole reflects that the learned magistrate considered the evidence of what they saw was not contradicted by the photographs. This finding was directed not only to their evidence as to the nature of the cut they observed, but also where on the cable that cut was situated. And, his Honour was of the view that both Mr Babich and Mr Hawkins were credible and compelling witnesses as to their observations regarding the cable.[499]

The impact of the additional evidence on the credibility of the evidence of Mr Hawkins, Mr Babich and Mr Bentley Common features of the appellant's submissions

1. There are two features common to the appellant's submissions concerning the impact of the additional evidence on the credibility of the evidence of each of Mr Hawkins, Mr Babich and Mr Bentley. I will address those common features first, and then address the features particular to each witness.

1. The appellant's counsel submits that the respective evidence of each of Mr Hawkins, Mr Babich and Mr Bentley that the cable was not there, or had been cut, does not sit consistently with what the appellant contends is the overall effect of the expert evidence adduced on appeal, namely that it would have been necessary to remove the drum housing to retrieve the cable, which did not occur. The difficulty with this submission is that it overstates the expert evidence.
2. As I explain later, the additional evidence is to the effect that depending on how the cable behaved once it was severed, it may, or may not, have been possible to repair it in the manner depicted by the evidence. Also, Mr Ginn gave evidence that he had removed a severed cable via the aperture and had observed others doing the same. Thus, Mr Ginn's evidence was not just that it was theoretically possible to do so, but that he had actual experience of that occurring. This evidence was not challenged by the appellant in cross‑examination.
3. It also needs to be kept in mind that the proposition that Mr Hawkins cut the cable was not put to him, Mr Babich or Mr Bentley at trial. Rather, their cross‑examination was conducted on the premise that the cable had been severed at the point in time that they each first observed it.
4. This is not a case where, irrespective of what those witnesses might have said in cross‑examination, the additional evidence pertaining to the appeal hypothesis gives rise to a reasonable doubt, or a significant possibility that the learned magistrate would have acquitted the appellant. By way of a hypothetical example, if the additional evidence was to the effect that the cable was of such density that it would take at least thirty seconds for one person to cut it, that would give rise to a reasonable doubt that the appellant cut the cable, irrespective of what those witnesses might say. This is because it would be impossible for the appellant to cut the cable in the approximately five seconds he was near it. A conclusion of impossibility is not, however, open in this case. As I have said, the additional evidence is to the effect that it was possible to retrieve the cable if it had retracted, and also that Mr Ginn had done so previously.

1. The appellant's counsel submits that the employees fabricated their evidence to cover up that the cable had been damaged in the unsafe lift carried out on the Friday and needed to be repaired as a consequence. A premise for that proposition is that the employees detected a damaged (not severed) cable which needed repair. That premise is not grounded in any evidence; see [534] - [541] below. There is therefore no plausible reason why any of the employees would fabricate their evidence. Moreover, there is no evidence that by the time the repairs commenced, any of the employees were aware the CCTV footage showed the appellant to be near the crane boom over the weekend. Thus, if their account was fabricated as the appellant alleges, there would be no reason for any of them to think that such an account would have any semblance of a foundation.
2. I turn now to the specific matters raised in respect of Mr Hawkins, Mr Babich and Mr Bentley.

1. In my view, there are three areas where the additional evidence might affect the credibility of Mr Hawkins' evidence.
2. First, the additional evidence might affect the credibility of his evidence arising from the point in time he took each of the six photographs.
3. In Mr Hawkins' witness statement dated 4 February 2021,[500] Mr Hawkins said that Mr Bentley informed him that the cable was broken, Mr Hawkins inspected the cable and saw it was broken and 'took seven photos of the damaged cable on my Samsung Mobile phone'.[501] Mr Hawkins said in his statement that while taking the photos, he noticed that the break in the cable appeared to be cut by a sharp implement.[502] Mr Hawkins also said in his statement that he had allowed police to download the seven photos that he took from his mobile phone.[503]
4. Mr Hawkins' evidence initially was that all of the photographs in Exhibit 12 were taken prior to any repairs having been conducted.[504] The learned magistrate sought clarification that the photographs were taken prior to any attempt to repair, and Mr Hawkins said yes. Mr Hawkins said in evidence that he gave police officers his phone with the photos on it and they took the phone back to the police station.[505]
5. In cross‑examination, Mr Hawkins accepted that Exhibit 12.2 was taken during the repair. That concession aside, the additional evidence demonstrates that Mr Hawkins' evidence regarding the point in time at which the other photographs were taken is wrong in a material respect.
6. The appellant suggests that the only explanation for this is that Mr Hawkins has fabricated his evidence. However, there are also innocent explanations for his evidence. These include that Mr Hawkins may have misremembered the points in time at which he took the photographs, he may have misremembered the purpose for which he took the photographs or Mr Hawkins may not have given careful consideration to this aspect of his evidence.
7. The second area where the additional evidence might affect the credibility of Mr Hawkins' evidence is the placement of the red circles on the photographs attached to the email sent on 2 December 2020 by Ms Read, on behalf of Mr Casagrande, to Senior Constable Fishlock. Ms Read in her statement says that Mr Casagrande and Mr Hawkins helped her place the circles as she did not know where they wanted the circles.[506] Ms Read also said in effect that she put the circles around the photos on 2 December 2020,[507] that being 16 days after the photographs were taken on 16 November 2020.
8. It is not possible from Ms Read's statement to discern the full extent of what Mr Hawkins told her regarding the placement of the red circles. However, if Ms Read's statement was available prior to trial, then together with the additional evidence regarding the timing of the photographs, a line of cross‑examination would have been open that the placement of the red circles on the photographs falsely portrayed where the cable had been damaged. However, there are also innocent explanations for the placement of the circles. In particular, that they were intended to indicate the area where the damage was caused, as opposed to depicting the state of the cable when first observed.[508]
9. The third area where the additional evidence might affect the credibility of Mr Hawkins' evidence relates to him not having given evidence that he had eventually soldered the cable onto the anchor point, after initially endeavouring to splice the cable ends together. His evidence directed to his attempts at repair was limited only to the splicing of the cable. The parties accept that it is most likely that the repair was ultimately effected by soldering the cable onto the anchor point. Mr Hawkins' evidence that he spliced the cables together, however, may well be explicable by Mr Hawkins assuming, but not precisely recalling, that was what he did given the appearance of the spliced cable in Exhibit 12.2.
10. Importantly, I do not have the benefit of hearing, or seeing, Mr Hawkins' response to being challenged on these three topics.[509] In particular, how a person reacts when confronted with material that is said to contradict their earlier evidence may be important in assessing whether there was a genuine error, or an attempt to deliberately mislead. For example, if Mr Hawkins were to appear genuinely confused when cross-examined on the additional evidence, that may support a finding he made a genuine mistake. His response may have rehabilitated any 'credit hit' that arose from his evidence being wrong in the first place, depending on his explanation.
11. Also, the trial was conducted on the basis that the appellant's trial counsel did not contest Mr Hawkins' evidence that the cable was severed when he first observed it. Therefore, there was not any cross‑examination on that topic. It was not put to Mr Hawkins that he cut the cable and then lied about what he did. If such a suggestion was put to him, any display of genuine or confected outrage, confusion or uncertainty in response would likely bear upon on an assessment of the credibility of his evidence.
12. Mr Hawkins' evidence regarding what he did is also broadly consistent with the repair of a severed cable, as opposed to him severing the cable. In particular, Mr Hawkins says that he pulled the cable through the eyelet and tied it off there, because 'it wanted to retract'. If Mr Hawkins had cut the cable as the appellant suggests, there would be no need for him to pull the cable through the eyelet to tie it off. In this respect, the appellant suggests that Mr Hawkins cut the cable in between the last eyelet and the anchor point.
13. For the reasons at [476] - [481] and [483] - [494], in my view, I cannot, and should not, conclude that there is a reasonable possibility that Mr Hawkins lied in his evidence at trial.
14. I accept the matters reflected by the additional evidence have the capacity to affect the credibility of Mr Hawkins' evidence. However, their impact on his credibility very much depends on what his response would have been if cross-examined by reference to the additional material. The additional material does not necessarily result in a finding that the credibility of his evidence is so significantly impugned that his evidence at trial cannot be relied on.

1. In respect of Mr Babich, the appellant's counsel accepted that Mr Babich's evidence did not really go into the photographs tendered at trial and that his evidence was primarily directed to what he had observed.
2. The appellant's argument in respect of Mr Babich was primarily based on the appellant having lost the opportunity to test Mr Babich's recall that he had observed a clean cut. A lost opportunity does not undermine Mr Babich's credibility. Further, as I explain later at [610] ‑ [615] and [654] ‑ [656], the appellant had a significant opportunity at trial to challenge Mr Babich's evidence by reference to the evidence that was adduced at trial.
3. I approach the appellant's submissions by first addressing Mr Babich's connection to the photographs, then summarising his evidence at trial, and finally addressing the appellant's contentions regarding his evidence.

1. Mr Babich did not take the photographs comprising Exhibits 2 and 12. In his evidence, he did not say whether the photographs were taken before or after the repairs had started.
2. Also, it is most unlikely that Mr Babich observed Mr Hawkins take the photographs. The photographs are taken in two sets. The first set are Exhibits 12.2, 12.4 and 12.6. They were taken in the period from 08:24:14 to 08:24:40. The second set are Exhibits 12.1, 12.3 and 12.5. They were taken in the period from 08:40:52 to 08:41:15.
3. The CCTV footage which covers the period during which the first set of photographs were taken stops at 08:24:29, and then recommences at 08:25:13. During the period from 08:24:14 to 08:24:29, Mr Babich can be seen at the vehicle at the rear of the crane. He does not have an apparent line of sight to Mr Hawkins when Mr Hawkins is taking the photographs. Further, Mr Babich is on his mobile phone. It is therefore most unlikely that Mr Babich observed Mr Hawkins taking the first set of photographs. In respect of the period during which the second set of photographs were taken, the CCTV footage stops just before the first photograph is taken. Mr Hawkins can be seen with his phone in his hand preparing to take the first photograph just before the footage stops. Mr Babich is not visible in the CCTV footage at that time.

1. In examination‑in‑chief, Mr Babich said that the cable had been cut at the very tip where it attaches to the end of the boom.[510] In examination‑in‑chief, he was taken to Exhibit 2.4. He said it showed the point where the wire had been cut. Exhibit 2.4 is a photograph of the severed cable from the anchor point end, just after it has passed through the first eyelet. The photograph was taken at 08:24:14.
2. Mr Babich explained that on close inspection he noticed a cut which he described as a neat‑tapered cut which he had 'seen plenty of times with a plier sort of cut'.[511] When he was asked to explain what he first observed, he said that 'we could see that the wire was no longer there'.[512] He also said in examination‑in‑chief that it was a 'clean cut which then prompted me that something had cut this, like pliers, was straight to my mind just by the clear cut and the chamfer nature of the wire end itself'.[513]
3. In cross‑examination, he was taken to Exhibit 2.1, which was taken at 08:40:52. It is a photograph of the severed cable from the reel end and depicts a clean cut to the cable. It was put to him that the photograph was one of the severed ends of the cable, which he agreed with. He was asked about his evidence in examination-in-chief that it was a clean cut. He responded by saying '[i]t was just a nice, chamfered cut', also saying that 'if you've ever cut something with a pair of [pliers] you end up with a neat sort of chamfered cut'.[514]
4. He was then taken to Exhibit 2.6, which was taken at 08:24:29. Exhibit 2.6 is a photograph of the severed cable from the anchor point end. He accepted that photograph does not look like a clean cut.[515] When he was asked to explain this, he said 'I'm not sure. I'm just going by what I saw on the day'.[516]
5. Overall, Mr Babich gave consistent evidence that the cable was not there and that he had observed a clean cut to it.

1. The appellant says he lost the opportunity to test Mr Babich's memory about actually observing a clean cut, in particular by reference to the photograph in Exhibits 2.4 and 2.6.
2. In considering this submission, it needs to be kept in mind that Exhibits 2.4 and 2.6 were taken after the point in time when the appellant says Mr Hawkins cut the cable. Thus, on both the appeal hypothesis and the prosecution case, Exhibits 2.4 and 2.6 would depict a cable that had been cut. Furthermore, the appellant's counsel does not agitate that the cable severed by attrition, saying that hypothesis does not make sense. For these reasons, I cannot see how an asserted loss of opportunity to test Mr Babich regarding Exhibits 2.4 and 2.6 advances the appellant's case on appeal.
3. The appellant's counsel also says that cross‑examination in respect of Exhibit 2.1 might have been done differently if counsel had information as to when the photograph was taken. Exhibit 2.1 was taken at 08:40:52 and depicts the cable from the reel end, presenting with a clean cut. Mr Babich did not say that Exhibit 2.1 was a photograph of the cable as found. Rather, it was put to him in cross‑examination that Exhibit 2.1 was one of the severed ends of the cable, which he agreed with. Mr Babich's evidence, properly understood, is that Exhibit 2.1 was consistent with the presentation of‑the cable as he first saw it. Further, in respect of the assertion of cross-examination being conducted differently, as I explain at [611] below, from the presence of the 'driver' in Exhibit 2.1, the appellant's trial counsel would have been able to discern that Exhibit 2.1 was taken after 08:33:14, thus well after the repairs had commenced. The appellant's trial counsel therefore had ample opportunity at trial to cross-examine as to when the photograph was taken in relation to the repair.
4. Moreover, even if the cross-examination of Mr Babich had not involved positively putting to him that Exhibit 2.1 depicted one of the severed ends of the cable, Mr Babich's emphatic and consistent evidence was that he observed a cut to the cable. The fact that Exhibit 2.1 was taken at 08:40:52 could not be used to undermine that evidence.
5. The appellant also suggests the timing of the photographs could be used to challenge Mr Babich's evidence that 'the wire was no longer there'. The appellant says the photographs show the cable is there, albeit in a severed form. As I understand this submission, it is that the photographs and their timing could be used to suggest to Mr Babich that the cable was intact when he first observed it.
6. Mr Babich is first seen on the CCTV footage close to the cable at 08:20:23. The footage shows Mr Babich leaning in to grab the cable at around 08:20:39. Thus, the cable 'was there' on that footage by that point in time. The earliest photograph (Exhibit 12.4) was taken at 08:24:14, almost four minutes after Mr Babich first appears on the CCTV footage. As I have said, it depicts the severed cable from the anchor point end. The next photograph in time is Exhibit 12.2, which was taken at 08:24:40. It depicts the cable from the reel end after it had been stripped by Mr Hawkins, who can be seen on the footage starting to work on the cable from around 08:22:09.[517]
7. The times at which the photographs were taken are entirely consistent with the respondent's submission that the severed cable was retrieved from the drum end either at, or before, Mr Babich leaning in at 08:20:39. The first photograph of the cable was taken several minutes after Mr Babich can first be seen in the CCTV footage. The photographs are all of a severed cable. Photographs of a severed cable taken many minutes after Mr Babich is first seen in the footage do not support a proposition the cable was still intact when Mr Babich first inspected it.

1. For the reasons at [476] - [481] and [497] - [514], the additional evidence does not impugn the credibility of Mr Babich's evidence.
2. For completeness, Mr Babich was cross-examined on the premise that the cable was severed when he first observed it. Thus, even if I considered there was a possibility that the additional evidence might impugn the credibility of his evidence, I could not properly assess the extent that it might do so without the appellant's principal contentions on this appeal having been put to Mr Babich in cross-examination.

1. Mr Bentley's evidence is, in summary, that he noticed that the cable was not there, went towards where Mr Babich was, Mr Babich motioned him over, Mr Bentley turned back, got in the crane and drove it over to the setting up area. Mr Bentley also says that he did not turn the crane computer on when he drove the crane over.
2. During Mr Bentley's examination‑in‑chief, he was taken to Exhibit 2.3 (taken at 08:41:15) for the purposes of identifying what part of the crane he was referring to when he said the cable was not there. He was not otherwise taken to the photographs. He said that Exhibit 2.3 would have been taken over at the work area, given the tools shown in the photograph. His evidence that the cable was not there was not challenged in cross‑examination. He also said he did not examine the cable closely and said that he did not look at where the cable was severed.
3. Accordingly, the times at which the photographs were taken have no bearing at all on the credibility of his evidence.
4. The appellant's extensive written submissions did not address in any detail how it was that Mr Bentley's evidence was impugned by the additional evidence. In oral submissions, the appellant's counsel initially said that parts of Mr Bentley's evidence were 'an anomaly that we can't explain on appeal, and that's because of all of this new evidence'.[518] The appellant's counsel subsequently submitted that Mr Bentley might have been attacked at trial on his evidence that the cable was simply not there, having regard to the additional evidence.[519] As I understand that submission, it is in effect predicated on the availability of the appeal hypothesis, which for reasons that I explain at [524] - [591] below is mere conjecture.
5. Moreover, Mr Bentley gave additional evidence which was consistent with him observing that the cable was not there, in particular that he walked over to tell Mr Babich that the crane was 'no go'. Thus, there was no internal inconsistency in his evidence as to his observations regarding the cable.
6. Also, Mr Bentley did not give evidence that he observed that the cable had been cut. He simply said it was not there. Accordingly, his evidence does not sit consistently with the appellant's contention that Mr Bentley and the others had made a plan to say the cable had been cut to avoid responsibility for it being damaged during the unsafe lift. Mr Bentley's evidence that the cable was not there left open the prospect that the cable had severed by attrition.
7. For the reasons at [476] - [481] and [517] - [522], the additional evidence does not impugn the credibility of Mr Bentley's evidence.

1. The prosecution case at trial was a circumstantial case. That being so, as the learned magistrate correctly observed, to find the appellant guilty of the charge, his Honour needed to be satisfied that the only reasonable inference was that the appellant cut the cable.
2. The appeal hypothesis is that there is a reasonable inference available on the evidence that is consistent with the appellant's innocence, in particular, one that precludes a finding that the only reasonable inference is that the appellant cut the cable.
3. In the unanimous judgment of the High Court in The Queen v Baden‑Clay, their Honours explained: [520]

For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.

(footnotes omitted)

1. Thus, the appeal hypothesis must rest on something more than mere conjecture, and it has to be assessed by reference to all of the evidence. Understood in that way, the expert evidence led on the appeal is not by itself determinative of whether the appeal hypothesis is available. The expert evidence has to be viewed together with all of the evidence at trial and on appeal.
2. Turning then to the hypothesis itself.
3. The crux of the appeal hypothesis is that there is a reasonable inference available that Mr Hawkins severed the cable in the period between 08:23:12 and 08:23:16, which the appellant suggests Mr Hawkins can be seen doing in the CCTV footage.
4. I had initially understood, as had the respondent's counsel, that the appeal hypothesis was not necessarily limited to a particular point in time. However, the appellant's counsel made very clear in her oral submissions that the appellant hypothesis was directed to Mr Hawkins' actions in the period of a few seconds commencing at around 08:23:12.[521]
5. Prior to that point in time, there are gaps in the footage. There is an approximate 58 second gap commencing at 08:15:55, an approximate 10 second gap commencing at 08:17:33 and a two minute and eight seconds gap commencing later at 08:18:12. The appellant (quite properly) does not suggest that the gaps in the footage arose because of the deliberate deletion of the omitted parts. The appellant does not suggest that the cable was cut during the gaps in the footage.
6. The appellant submitted that neither Mr Hawkins nor Mr Babich gave evidence that the cable had been retrieved from the aperture in the manner suggested by Mr Ginn in his evidence. However, Mr Hawkins gave evidence that he 'pulled the cable from the reel'.[522] Mr Mogg gave evidence that he suggested to Mr Hawkins that he 'may be able to recover the cable from the drum'.[523] Further, there was no substantive issue raised at trial regarding that topic and it is not surprising that little attention was given to it in evidence. The fact that little attention was given to the topic at trial does not mean that the evidence at trial was to the effect that the cable had not been retrieved from the aperture.

Availability of the appeal hypothesis - insurmountable obstacles

1. In my view there are two insurmountable obstacles in the way of the appeal hypothesis.

1. The underlying premise of the appeal hypothesis relies on mere conjecture, not evidence.
2. The underlying premise is that there was damage to the cable which was visible or otherwise discernible, and that one or more of the three employees detected the damage, and determined that it was necessary to repair it. There is, however, no evidence that any of the employees observed a damaged cable, as opposed to a severed cable.
3. Furthermore, the learned magistrate found that any potential damage to the cable caused by the unsafe lift was minimal. The appellant does not suggest that the additional evidence affects that finding. On my assessment of the evidence at trial and on appeal, I agree with his Honour's finding. In addition, there was no evidence of any damage to the crane itself near the area of the cable, nor was there any evidence that the cable was frayed or showed any signs of wear near the point at which it was severed.
4. Mr Birks in his report said that it is possible that the repairs on the cable were required due to a damaged section of cable, which was causing an error on the LMI on the computer system in the crane cab. However, there is no evidence that when the crane was first brought around, any warning lights on the crane were flashing, or that the alarms were sounding. Also, Mr Ginn said in cross-examination on the appeal that if the cable is starting to deteriorate or break apart, it would go for a long time before you would see an error code come up. That evidence is consistent with Mr Birks' evidence at trial - see [256] above.[524]
5. The appellant suggested that when Mr Bentley got into the cabin to drive the crane over, something with the computer system alerted him that there was a problem with the cable. However, the evidence is to the contrary, Mr Bentley saying he did not turn the crane computer on. The appellant also suggested that Mr Bentley and Mr Hawkins noticed that the cable was damaged during the two minute and eight seconds gap in the footage. There is no evidence to that effect.
6. Further, in footage at 08:17:15, Mr Hawkins and Mr Bentley can be seen having a conversation, and then Mr Hawkins looks towards the crane arm. That footage is suggestive of Mr Hawkins and Mr Bentley already appreciating there was a problem. Mr Hawkins' concern was directed to where the cable would ordinarily be situated on the boom.
7. In reply submissions, the appellant suggested that Mr Hawkins turned the computer on when Mr Bentley brought the crane over and this alerted them to the problem. However, there is no evidence to that effect.
8. Accordingly, the underlying premise of the appeal hypothesis relies on mere conjecture, not evidence.

1. The second insurmountable obstacle is the evidence of Mr Bentley and Mr Babich.
2. The appeal hypothesis depends upon the cable still being intact when Mr Bentley brought the crane over to the work area. However, Mr Bentley's evidence was that the cable was 'not there' when he was conducting his pre‑start inspection. As I have explained, Mr Bentley's evidence is not undermined by the additional evidence.
3. Mr Babich's evidence is that when he first observed the cable, it was cut. It is clear from the CCTV footage that Mr Babich looked closely at the cable before the point in time that the appellant's counsel suggests that Mr Hawkins cut the cable. Mr Babich's evidence is not undermined by the additional evidence.
4. Having regard to the evidence of Mr Bentley and Mr Babich, the appeal hypothesis is not arguably available.
5. There are a number of additional reasons the appeal hypothesis is not available on the evidence adduced on the appeal, taken together with the evidence adduced at trial.

Additional reasons the appeal hypothesis is not available

Evidence as to the possibility of retrieving the cable via the aperture

1. The appeal hypothesis depends upon the proposition that the only way the cable could have been retrieved from the reel was to take off the cable housing. However, the evidence of both Mr Birks and Mr Ginn was that it is possible for a cable to be retrieved using either fingers or pliers.
2. The evidence adduced on appeal as a whole falls well short of providing a foundation for the proposition that the appeal hypothesis is a reasonable inference or conclusion to be drawn from all of the evidence. Even assuming that the tension on the reel was set to the specifications in the manual and the reel was operating normally, on the evidence as a whole, it was still possible to retrieve the cable via the aperture. It is not necessary therefore to determine the conflicting evidence between Mr Birks and Mr Ginn as to whether the reel had lost tension.
3. Further, there is no need to make any credit findings in respect of Mr Birks or Mr Ginn. Their evidence was reasoned and cogent. Both endeavoured to answer the questions asked of them as best they could, bearing in mind the majority of the questions were directed to theoretical possibilities, as opposed to what they actually had done. In respect of the credibility issues raised by the respondent regarding Mr Birks, they might be explained by Mr Birks not having significant experience in the repair of cranes, as opposed to any attempt to fashion his evidence to favour the appellant.
4. Mr Ginn has extensive experience in repairing cranes, including the cable. He gave detailed evidence in examination‑in‑chief as to how the cable can be retrieved from the reel using fingers or pliers. He also said he had previously performed that task himself. This evidence was given in a considered way and not directly challenged in cross‑examination. It did not suggest that it is always possible to retrieve the cable in that way, however it does reflect that it is possible to do so, and that Mr Ginn has done so himself. Mr Ginn was also not asked to clarify in cross‑examination how long that process would likely take.
5. Further, Mr Ginn's evidence as to the 'looping out' scenario is predicated on the person being able to retrieve some part of the cable in the first place. That is, irrespective of whether that looping out process was common or preferred, the occasions when Mr Ginn witnessed it happen are additional examples of when, on Mr Ginn's observation, it has been possible to retrieve some part of the cable from the aperture.
6. Mr Mogg is a mechanic, who by the time of trial had approximately 27 years' experience working with cranes. He was the person who replaced the cable. He was cross‑examined about his conversation with Mr Hawkins regarding the possible repair of the cable. He said he told Mr Hawkins that he may be able to 'recover the cable from the drum' and 'reconnect it'.[525] Thus, on this evidence, Mr Mogg considered it was possible to retrieve the cable from the drum.
7. While Mr Birks accepted it was possible to retrieve a retracted cable from the aperture, he considered that it was unlikely that the cable could be retrieved in that way. However, Mr Birks has never done a running repair of a crane cable. Also, Mr Birks did not conduct any tests in order to assess whether it was in fact possible to retrieve the cable via the aperture.[526]
8. Taken as a whole, this evidence is to the effect that the cable can be retrieved via the aperture, however whether or not it is possible to do so successfully depends on the circumstances. The expert evidence does not demonstrate that it is impossible to do so and Mr Ginn's unchallenged evidence was that he had in fact done so, and had observed others doing so.

The availability of the appeal hypothesis by reference to the CCTV footage

1. The CCTV footage likely supports the proposition that the cable was retrieved from the aperture. In that respect, the footage shows that at approximately 8:20:39, Mr Babich leans in towards the reel end of the cable, initially using one arm and then using both arms.[527] He then moves backwards with his left and right hands gripping what appears to be the cable, and then appears to wrap it around the anchor point.
2. In my view, from having carefully reviewed the footage, it is likely that Mr Babich had grasped the severed cable from near the reel end, pulled it out and secured it off at the anchor point. On that basis, Mr Babich's actions are entirely consistent with the proposition that the retracted cable was able to be extracted from the reel without the need for the cover to be taken off.
3. Mr Birks suggested that the short period of time during which Mr Babich leant forward to the cable housing as depicted in the footage is not sufficient to enable retrieval in that way. However, even if that were so, prior to that point in time, there were significant gaps in the footage, including one of two minutes and eight seconds during which time the cable could have been retrieved. Thus, Mr Birks' observation is limited to what he could observe from the available footage. Further, while there are no long nose pliers visible when Mr Babich leans in, the footage does not show what is present in the area near the aperture and Mr Ginn's evidence was that the cable could be retrieved using fingers.
4. Dr Hutchison's first report in the appeal captioned the footage at 08:20:39 with 'Worker leans forward to grab retracted cable' and captioned the footage at 08:20:46 with 'Worker extends cable to original break point area'. His report is therefore consistent with the view I have taken of the footage.
5. Mr Birks in his report on the appeal expressed a similar view to Dr Hutchison. Mr Birks said:[528]

The CCTV of the repairs carried out on the morning of 16th November show that the person repairing the crane reaches towards the reel at 8:20am and appears to retrieve the end of the boom retractor cable.

1. Mr Ginn also expressed a similar view in his report, and in oral evidence, on the appeal.[529]
2. The appellant's counsel said she did not rely on these aspects of Dr Hutchison's and Mr Birks' reports.[530]
3. The appellant's counsel suggested that what was happening in the footage at around 08:20:46 was:[531]

I'm not saying that they keep getting the cable up. I'm saying that they're creating extra length on a cable that is intact. So, he's reaching into the aperture, and that's why - sorry, I misworded that. He's not reaching into the aperture; he's reaching towards the reel end to create extra length on the cable to then tie it off, so that they can then go more towards the anchor end, or wherever they think a reconnection needs to be made, or a repair needs to be made, to then commence that process. I'm not saying that what we're seeing is Mr Babich reaching into the aperture to try and get a severed end. And I'm saying that that is not what is happening, because, if that is the case, at that point we firstly don't see any long-nose pliers, so the long-nose pliers theory is out the window at that point, if that's what they're attempting to do.

1. This submission was also put as follows:[532]

... given the amount of time and how swiftly and easily it's done in one motion, [it's] more consistent with creating more length on a cable that is intact in preparation for controlled repair, rather than pulling on a cable that's not there, that is, by either trying to retrieve it through the opening, or winding it back somehow...

1. The scenario advanced by the appellant as to what is happening in the footage at around 08:20:46 is contradicted by all of the experts called as witnesses on the appeal, including the two experts that the appellant called. In any event, the views of the experts are not determinative of the question one way or the other.
2. I do not accept the appellant's submissions.
3. The footage commencing at 08:20:40 shows Mr Babich with one end of the cable in his hand. I have looked very carefully at that footage and I cannot discern any aspect of it that supports a conclusion that the cable was still intact at that point in time. It is clear from the footage that by the time Mr Babich moves back from the reel, the cable, which is in his left hand, is not connected to the anchor point.
4. Also, if the cable was still intact at that point in time, leaning in towards the reel end would be an unusual way of seeking to achieve greater length in the cable as the appellant suggests. Extra length in the cable could be immediately achieved by pulling the cable near where Mr Babich was standing, which was near the anchor end.
5. The appellant suggests the cable may have been cut at approximately 08:23:12, at which point Mr Hawkins can be seen using a pair of pliers on the cable.[533] I have also looked very carefully at that footage. By that point in time, it seems clear from the footage that the cable was already separated. In this respect, Mr Hawkins has the cable in his left hand and a pair of pliers in his right hand, which he is applying to the cable. After having done so, he then twists the cable using his right hand.
6. The respondent submits that Mr Hawkins is removing the outer sheath from the cable, consistent with the appearance of the cable in Exhibit 12.2, taken at 08:24:40. I accept the respondent's submission.
7. It is clear from Exhibit 12.2 that by 08:24:40 the cable had been severed and the outer sheath of the cable had been removed from part of the cable. The spot at which the cable is severed must be different to the spot from which the cable is stripped of its outer sheath. This is because stripping the cable removes part of the outer sheath from before the point of severance. This is consistent with the appearance of the cable in Exhibit 12.2, which shows the spot from which the cable is stripped to be different to the spot from which the cable is severed. I have illustrated this on a cropped and zoomed-in version of Exhibit 12.2 below:

1. Another difficulty with the appellant's submission that Mr Hawkins can be seen cutting the cable at around 08:23:12, is that in the period from 08:23:12 to 08:23:16, Mr Hawkins can only be seen applying the pliers once, to the same spot on the cable. If, as the appellant suggests, Mr Hawkins was cutting the cable, he would then need to apply the pliers again to a different point of the cable to remove the sheath consistent with the appearance of the cable in Exhibit 12.2. However, the footage does not show him doing so before the photograph in Exhibit 12.2 is taken at 08:24:40. By 08:23:38 Mr Hawkins has put the pliers down and taken out his phone. Even though there is then a 25 second gap in the footage through to 08:24:03, he still has his phone in hand at that time. This suggests that during the gap he has continued to utilize his phone, rather than take any further action with the pliers.
2. Moreover, if Mr Hawkins had cut the cable at approximately 08:23:12, there would be no need for him to then immediately twist the cable using his right hand. The most plausible explanation for that action are that he is twisting off the outer sheath, and also possibly twisting the inner part of the cable after having removed the outer sheath.

General behaviour of Mr Hawkins, Mr Babich and Mr Bentley

1. The appellant also submitted that Mr Hawkins, Mr Babich and Mr Bentley did not act in a manner consistent with having observed a severed cable. That submission is not supported by the evidence.
2. At about 08:13:54, Mr Bentley can be seen on the footage looking in the direction of crane arm for around five seconds. He does not move towards the arm to conduct a close inspection, and in his evidence said that it was a 'glance thing'.[534] Mr Bentley then walks towards the set-up area, taking about 23 steps in that direction, before turning around, returning to the crane and driving it over to the set-up area. Mr Bentley's actions are consistent with him having observed, and then leaving to report, a problem. In his evidence, he said while he was walking over to tell Mr Babich that the crane was 'no go', he saw Mr Babich waving at him in effect telling him to hurry up, and so he went back to the crane and drove it over. The appellant suggests that Mr Bentley walked over towards Mr Babich because Mr Babich had called him over, not because he had observed that the cable was not there. There is no direct evidence that supports that proposition.
3. Once Mr Bentley had driven the crane over to the set-up area, the CCTV footage shows there was considerable discussion between him and Mr Hawkins. At about 08:16:55, Mr Bentley is still in the cab and he and Mr Hawkins can be seen having a discussion. Then at about 08:17:09, Mr Hawkins has a close look at the boom where the cable would be, including looking towards the reel end. Mr Hawkins then looks again towards where the cable would be at 08:17:27. The most plausible explanation for Mr Hawkins' behaviour is that Mr Bentley has alerted Mr Hawkins to a problem.
4. Further, Mr Babich and Mr Hawkins can be seen having a discussion immediately prior to Mr Babich leaning in towards the reel end at about 08:20:39.

Additional matters in respect of the appeal hypothesis

1. The appellant also submitted that Mr Hawkins' presence there on the Monday was 'odd', the apparent suggestion being that he was there because there might be a problem with the crane. However, Mr Hawkins was not just a mechanic, but also a crane operator. And, apart from the mere fact that he is a mechanic, there is no evidence that supports, either directly or inferentially, the proposition that Mr Hawkins was called in that day because there was a concern the cable might have been damaged during the unsafe lift on the Friday.
2. The appellant also says Mr Hawkins' evidence that when they first found the damage, they put the crane into crane mode as 'somewhat odd', saying that common sense would dictate that if the cable was disconnected, 'no computers need to be switched on'. Whether or not it is odd depends upon the rationale for doing so, which has not been explored with either Mr Hawkins or Mr Bentley. This submission does not advance the appellant's position.

1. Significant attention during the appeal was directed to the photographs at Exhibits 12.1 and 12.3. The photographs depict a length of the cable coming out from the aperture, which is lying slack on the area in front of the crane. The respondent suggested in the cross‑examination of Mr Birks that this photograph was fatal to the theory that if the cable had been severed, it must have retracted back into the reel.
2. Having reflected on the evidence pertaining to Exhibits 12.1 and 12.3, it seems to me that here are potentially five possible explanations for the presence of the cable in them:
   1. the employees had cut the cable and blocked the aperture with a cable tie;
   2. the employees had cut the cable, the spring lost its tension, and that was as far as it retracted;
   3. the cable had not been installed correctly, thus preventing it retracting into the reel any further;
   4. the photograph depicted the length of the cable that was not under tension after the cable had been retrieved from the cable housing; or
   5. the cable shown in the photograph depicted the length the cable that had been looped out of the cable housing.
3. The appellant presses the first scenario. There is no evidence to that effect. Mr Birks in his evidence said that would not be the method he would choose to anchor the cable and it would be very unlikely that is what the workers did.[535] That evidence reflects common sense. On the appeal hypothesis, the cable was still intact when Mr Bentley brought the crane over, and Mr Hawkins then cut it at a point after it had passed through the last eyelet. Thus, the cable would, while intact, pass through three eyelets before it entered the anchor point. If that were the case, it would seem to be a most unusual course to anchor it off at the aperture. If Mr Hawkins had severed the cable as the appellant suggests, in all likelihood he would have secured it off at around the point of the cut, not the aperture.
4. As to the second scenario, Mr Ginn in his evidence accepted that the cable did not display any signs of being slack on the Friday. Further, the evidence at trial was that the crane did not display any error signals on the Friday.
5. The third scenario was posited by Mr Birks. There is no evidence that otherwise supports that possibility, and it seems to me to be a theoretical possibility at best.
6. As to the fourth scenario, Mr Ginn gave evidence to that effect in examination‑in‑chief and was not cross‑examined on it.
7. As to the fifth scenario, Mr Birks accepted that if the cable had been retrieved and looped out of the cable housing, this would explain the presence of the cable in Exhibit 12.1. Mr Ginn said he has seen looping out of the cable done a couple of times by inexperienced people. He also said it is not a common practice because then you create more cable outside of the reel than is required.
8. Mr Hawkins' evidence is that the photograph at Exhibit 12.1 depicted that the cable had lost its tension and the part that is shown in the photograph was not under tension. Mr Hawkins did not say that the cable was tied off at the aperture. Mr Hawkins also gave evidence that he pulled a length of the cable out and then tied it off on one of the eyelets to prevent it from retracting back into the reel. That process is consistent with Mr Ginn's appeal report that as the length of the cable increases, the tension in the cable increases.
9. Mr Babich did not give any evidence directed to that event, nor as to his observations of the tension on the cable.
10. In my view, scenario one as pressed by the appellant is the most unlikely scenario. Ultimately, I have come to the view that without evidence from Mr Hawkins and Mr Babich on this topic, I cannot discern which scenario is to be preferred.

1. In my view, for the reasons I have set out at [524] - [588], the appeal hypothesis constitutes mere conjecture.
2. For completeness, I have also considered the prospect that the cable was cut by Mr Hawkins, Mr Babich or Mr Bentley at some time prior to 08:23:12. I do so for two reasons. First, I had initially understood the appellant's case on appeal to be that the cable was cut at an earlier point in time. Second, the reports of Mr Birks and Dr Hutchison contradict the proposition the cable was cut at 08:23:12. They suggest the cable was severed by 08:20:39, when Mr Babich leans in towards the reel end.
3. Putting to one side my findings as to what Mr Hawkins can be seen in the footage doing at around 08:23:12, having regard to the balance of my findings, I am satisfied that a hypothesis that Mr Hawkins, Mr Babich or Mr Bentley cut the cable at some time prior to 08:23:12 is also mere conjecture.

1. For these reasons, in my view, the additional evidence taken together with the evidence at trial, does not establish that the appellant is innocent, nor does it raise such a doubt as to satisfy me that the appellant should not have been convicted. Further, the additional evidence taken together with the evidence at trial, does not give rise to a significant possibility that the learned magistrate would have acquitted the appellant if the additional evidence had been adduced at trial.
2. Therefore, Grounds 1 and 2 of the appeal do not succeed. I do not grant leave in respect of either ground, as I do not consider there was a reasonable prospect of either ground succeeding.
3. I will now state my findings as to whether the additional material is fresh or new, as I consider that remains relevant in considering the appellant's further proposition as to a loss of opportunity giving rise to a miscarriage of justice.

Is the additional evidence fresh, or new, evidence?

1. In respect of whether the appellant, with reasonable diligence, could have obtained or discovered the additional evidence for use at the trial, the appellant relies on Mr Gregory's first and second affidavits.
2. The appellant has not sworn an affidavit in respect of the issue of reasonable diligence, nor has the appellant filed an affidavit made by his trial counsel.
3. The assessment of reasonable diligence is an objective test. However, it does not take place in a vacuum. Rather, it takes place in the context of the avenues available to the appellant to obtain the additional evidence, which is assessed by reference to the information that was known to the appellant prior to trial.

Additional evidence pertaining to the photographs comprising Exhibits 2 and 12

1. In Mr Gregory's first affidavit, he summarised the evidence given by Mr Hawkins at trial concerning those photographs.[536] In particular, he referred to Mr Hawkins' evidence in cross‑examination at trial that Exhibit 12.2 was taken after the repair process had commenced,[537] and that he gave police officers his phone with the photos on it and they took the phone back to the police station.[538]
2. In contrast, Mr Gregory pointed to Constable Rapley's evidence that Mr Hawkins had emailed through the photographs because he no longer had his old phone and only had his new phone.[539] Mr Gregory then states:[540]

Also given this was the first time ever that it had emerged from the photographer Mr Hawkins, that one of the photos which had always been purported to be evidence of damage, was in fact taken after repair had commenced, I was then prompted to obtain further expert opinion dealing with the discrete issue of what could actually be seen to be done to the purported damaged cable in situ from the moment it was discovered to the moment it was to be repaired ...

1. The appellant characterises Mr Hawkins' evidence given in cross‑examination regarding what the photographs depicted, and also Constable Rapley's evidence, as 'fresh evidence'. However, as I have explained earlier, that submission is misconceived. The assessment of whether evidence is fresh or new is directed to the additional material sought to be adduced on an appeal.
2. The appellant's primary submission regarding the photographs is that the appellant could not have, with reasonable diligence, obtained the metadata for the photographs prior to trial. Further, the appellant suggests that it could not have been discerned with reasonable diligence that at least one of the photographs was taken after the repairs had commenced.

Circumstances regarding the provision of the photographs prior to trial

1. The circumstances regarding the provision of the photographs to the appellant's legal representatives prior to trial are as follows.
2. On 14 January 2021, the police prosecuting office disclosed to the appellant's legal representatives the photographs with the red circles on them.
3. On 21 January 2021, Mr Gregory sent an email to the South West Prosecuting branch of the WA Police in which he described the photographs as extremely confusing and stated that the photographs 'indicate repairs affected'. Mr Gregory requested electronic copies of the photos with original electronic metadata.[541]
4. Prior to trial, police disclosed six photographs in electronic format without the red rings. These photographs did not include their metadata.
5. The appellant's expert, Mr Birks, addressed the photographs in his report dated 4 January 2022. Specifically, Mr Birks said that the photographs at Exhibits 12.1 and 12.2 depicted the cable in two different states.[542] Mr Birks also said that:[543]

Due to this discrepancy, I don't consider the photos to be strong evidence that the cable was cut prior to Monday 16th November 2020. It may have been cut by others on Monday morning, before the photos were taken.

1. Thus, Mr Birks in his report expressly raised the possibility that the photographs did not depict the cable when first observed on the Monday morning.
2. Dr Hutchison in his report prior to trial expressed the opinion that the photographs were taken at different stages of repair. That opinion was expressed by reference to what was depicted in the photographs.[544] The appellant did not tender these aspects of Dr Hutchison's report at trial.[545]
3. Subsequent to the receipt of these reports, the appellant's legal representatives did not renew their request for the metadata in respect of the photographs.

Content of the photographs and the possible scenarios that arose from them

1. Four of the photographs suggest from their content that they were taken after the repair process commenced.
2. The photograph at Exhibit 12.1 contains a large red driver. The CCTV footage shows Mr Hawkins retrieving tools from the vehicle at the rear commencing at around 08:31:57 and returning with those tools, which include a large red driver. He can be seen placing that driver down at approximately 08:33:14.[546] The suggestion is plainly open from the footage that the photograph at Exhibit 12.1 was taken after that point in time, that is, after 08:33:14.
3. The photograph at Exhibit 12.2 depicts the cable with a stripped end. This suggests that it was taken after repairs had commenced, which Mr Hawkins accepted in cross‑examination. The photograph at Exhibit 12.3 depicts a number of tools and a roll of black tape, which suggests it was taken during the repair process. The photograph at Exhibit 12.5 contains the hand grips of a tool next to the cable, which also suggests it was taken during the repair process.
4. Also, from the CCTV footage, as I have explained above, Mr Hawkins can be seen working on the cable at approximately at around 08:23:12 and is first seen getting his phone out to take photographs at 08:23:38.
5. Thus, on the photographs and CCTV footage, it was likely that at least four of the photographs were taken during the repair process, as opposed to before the repairs had been started.
6. Additionally, Mr Hawkins was taken in cross-examination to certain screenshots of the CCTV footage, which included screenshots that covered the period between 8:23 and 8:24 am and a screenshot at 8:40 am. It was put to Mr Hawkins, and he agreed, that he appeared to be taking photographs in those screenshots.[547] It can be inferred from this questioning that the appellant's trial counsel appreciated there was a possibility that the photographs, or at least some of them, were not taken prior to the repairs commencing. Such an inference accords with the pre‑trial reports of Mr Birks and Dr Hutchison, which expressly raised that prospect.

What did reasonable diligence require in these circumstances?

1. In circumstances where the photographs and pre-trial reports raised the likelihood that at least four of the photographs were taken after the repairs had commenced, the question is whether the appellant could have, with reasonable diligence, obtained access to the metadata for the photographs.
2. The material provided to the appellant prior to trial by way of Mr Hawkins' statement was to the effect that the photographs had been downloaded from his phone. Thus, the appellant's legal representatives were entitled to presume that the photographs they were provided with represented the best digital image that was available.
3. Constable Rapley's evidence at trial was to the effect that the photographs had been obtained by way of Mr Hawkins emailing them to him. On this evidence and given that it was Mr Hawkins who took the photographs, the appellant's legal representatives were entitled to presume that the photographs disclosed were the best digital images that were available. Further, the prosecution had a duty of disclosure to the appellant, which required the provision to the appellant's legal representatives of copies of the photographs that were in their possession. Since the appellant's legal representatives had specifically requested the metadata, they were entitled to presume that the photographs which police prosecutors held did not include the metadata.
4. Viewed as a whole, the overall message conveyed to the appellant's legal representatives by the pre‑trial disclosure, and then Constable Rapley's evidence at trial, was that the best available images had been provided, which did not contain the metadata.
5. The respondent suggests that the appellant should have raised with the prosecutor that the photographs were not originals and asked the prosecutor to make enquiries regarding the availability of the originals. However, I do not think it was reasonably necessary to do so in circumstances where the interactions with the prosecution conveyed the message to the appellant's legal representatives that the best available images did not contain the metadata. Understood in that way, I am satisfied that the appellant could not, with reasonable diligence, have obtained access to the photographs on Mr Casagrande's phone containing the metadata prior to trial. It is therefore fresh evidence.
6. Accordingly, in my view the metadata and the subsequent evidence of Dr Hutchison as to the precise time when each photograph was taken is fresh evidence.

The additional evidence pertaining to the placement of the red circles - new or fresh evidence?

1. In respect of the additional evidence pertaining to the placement of the red circles, photographs containing the red circles were disclosed prior to trial. In my view, the exercise of reasonable diligence would have been to enquire as to what the red circles meant, and who had placed those circles where they were. An enquiry regarding the placement of these circles would very likely have resulted in enquires being made of Mr Casagrande and Ms Read prior to trial concerning the placement of those circles. Accordingly, I am satisfied that the appellant, with reasonable diligence, could have obtained Ms Read's statement prior to trial.
2. It is therefore new evidence. However, even if it were fresh evidence, that would not affect the disposition of the appeal, having regard to the other findings that I have made pertaining to the evidence of Mr Hawkins, Mr Babich and Mr Bentley, and my view that the appeal hypothesis is mere conjecture.

Mr Birks' further report and other evidence pertaining to the appeal hypothesis

1. As I have said, the assessment of reasonable diligence does not take place in a vacuum and has regard to the avenues available to the appellant to obtain the additional information, in the circumstances known to the appellant.
2. One of the key premises underpinning the appellant's argument that the additional evidence pertaining to the appeal hypothesis is 'fresh evidence' is that it was rational for the appellant to not have considered the appeal hypothesis prior trial. Thus, the appellant contends that it could not have obtained evidence pertaining to that hypothesis prior to trial with reasonable diligence.
3. In relation to Dr Hutchison's evidence adduced on the appeal, the appellant submitted that:[548]
   1. Prior to trial, prima facie evidence had been disclosed that the cable had been severed, or at the very least broken. This prima facie evidence is summarised at paragraph 15 of the Appellant's Written Outline of Submissions dated 19.6.23.
   2. Having been presented with the above prima facie evidence that the cable was at the very least broken by Monday 16 November, the only reasonable alternative hypothesis left open for exploration at trial was that a severance or break had occurred due to an unsafe lift on Friday 13 November.
4. A similar approach is adopted in respect of Mr Birks' evidence, the appellant submitting that:[549]

The appellant could not have reasonably been expected to instruct Mr Birks to analyse the raw footage (bearing in mind its limitations of formatting and missing files) of Monday 16 November in circumstances where:

1. The prima facie evidence indicated a repair was undertaken; and
2. Even if the raw footage was looked at as individual files, revealed something of a repair being undertaken.

1. The thesis underpinning these submissions is that because prima facie evidence had been disclosed by the prosecution to the effect that the cable had been severed, or was broken, by the time it was first observed by the employees, the exercise of reasonable diligence did not require the appellant and his legal representatives to investigate whether that was in fact the case.
2. The appellant also pointed to Mr Birks not being provided with the Tadano manual prior to trial and the fact that the appellant was not aware prior to trial of Mr Hawkins' evidence regarding the repair process.[550]
3. I will deal first with the proposition that it was rational for the appellant's legal representatives not to investigate the appeal hypothesis prior to trial.

Consideration of the appeal hypothesis prior to trial

1. A critical element of the prosecution case at trial was that the cable was severed by the time the employees first observed it on the Monday morning. That being so, it ought to have been obvious to the appellant's legal representatives that they needed to assess whether the 'prima facie' evidence directed to that element was credible.
2. Obvious questions that arose in that respect were what would happen to the cable if severed, and if it did retract into the cable housing, how could the cable be removed from the housing.
3. Moreover, Mr Birks in his report prepared prior to trial expressly raised the possibility that the cable may have been cut by others on the Monday morning. In his examination-in-chief at trial, Mr Birks said that 'I believe they probably cut the cable and then stripped it'.[551] Mr Birks is speaking of cutting the cable, and stripping it, as two separate actions, as opposed to making a cut to the outer material to enable it to be stripped. On that basis, Mr Birks never resiled from the position expressed in his report that the cable may have been cut by others on the Monday morning.
4. Thus, the appellant and his legal representatives were expressly on notice prior to trial as to a possible theory that others had cut the cable. In addition, a significant aspect of the appellant's submissions on appeal concerning the appeal hypothesis was directed to the CCTV footage available at trial.
5. Further, the appellant is a very experienced crane operator and the organisation that he operates with his wife has a crane of a similar make and model to the crane the subject of the charge.
6. The appellant chose to conduct the trial on the basis that he conceded the cable was severed when first observed by the employees. There is no evidence before me as to why trial counsel did not run the appeal hypothesis at trial, or as to why the trial was conducted on the basis that the appellant accepted that the cable had been severed. There is also no evidence the appellant's legal representatives did not consider and discount the appeal hypothesis prior to trial. In this respect, as the respondent submits, it was an objectively rational decision to not pursue the appeal hypothesis at trial where there were more amenable lines of defence to run. As I have already found, the appeal hypothesis, even with the benefit of the additional evidence, is not available and constitutes mere conjecture.
7. In my view, it was rational for the appellant's legal representatives to investigate prior to trial what would happen to the cable if it had been cut, and whether what was depicted on the CCTV footage was consistent with a cable having been cut. I make clear that I am not suggesting that the appellant's legal representatives at trial did not consider these issues. On the evidence before me, I do not know either way. However, I need to express a view as to whether it ought to have been considered, as the appellant contends it was rational for his legal representatives to not investigate that issue prior to trial. I do not accept that submission.

1. The appellant also raises that prior to trial he had not been provided with the repair manual referred to in Mr Ginn's report tendered at trial. The appellant says that without that manual, he was not aware of the extent of the tension on the reel and therefore would not have been able to assess what would happen to the cable if it had been severed. There are a number of answers to this proposition.
2. First, it can be inferred that the appellant had some familiarity with the operation of the crane, given his experience, and that his family company owned and operated a similar crane.
3. Second, Mr Birks is an expert in cranes and conducted a tension test on the crane on 13 December 2021,[552] and must have appreciated that the reel is under tension in order to retract the cable.
4. Third, even putting to one side Mr Birks' expertise, Mr Ginn in his report tendered at trial said that the cable is under tension 'due to the cable being required for the usage of measuring the boom length'.[553]
5. Fourth, the appellant has not adduced any evidence that it was impractical, or too costly, to issue a subpoena to Tadano for the repair manual.[554] The evidence is to the contrary. The appellant issued a number of subpoenas to a number of different parties prior to trial, including a subpoena to Tadano in relation to its quote to repair the cable.[555] The expansion of the subpoena to include the manual, or the issue of a new subpoena, would have been a relatively straightforward and inexpensive exercise.
6. Fifth, Mr Birks obtained a copy of the repair manual for the purposes of his report tendered on the appeal. He said in his oral evidence that he obtained the report from the appellant. There is no evidence from the appellant as to how difficult a process that was or how long it took, nor is there any evidence suggesting that it was not possible for the appellant to have obtained the repair manual prior to trial.

Evidence of Mr Hawkins, Mr Babich and Mr Bentley at trial

1. The appellant says that Mr Hawkins, Mr Babich and Mr Bentley gave evidence at trial that differed from their anticipated evidence as revealed by the pre‑trial disclosure. I accept that the evidence at trial regarding the repairs to the crane went beyond that which was revealed by the pre-trial disclosure. In particular, Mr Hawkins' statement disclosed prior to trial did not explain what he had done to repair the cable.
2. That being said, the CCTV footage disclosed prior to trial depicted a repair being undertaken to the cable. It was open to the appellant's legal representatives prior to trial to review that footage to assess, in consultation with Mr Birks, whether the allegation of a cut cable was consistent with what is depicted in the footage. In that respect, Mr Birks' report for the appeal was directed in part to whether the footage was consistent with a 'controlled repair' by the employees.

Conclusion regarding whether the additional evidence pertaining to the appeal hypothesis is fresh or new evidence

1. Having regard to the matters I have addressed at [595] - [645], in my view:
   1. The issue as to whether or not the cable had severed by the point in time it was first observed by the employees was an obvious issue to be considered prior to trial. Moreover, that possibility was expressly raised by Mr Birks' report tendered by the appellant at trial.
   2. I therefore do not accept the appellant's submission that it was rational to not have considered that issue prior to trial. Further, the evidence does not demonstrate that issue was not in fact considered and discounted prior to trial. Furthermore, it was forensically objectively rational for the appellant's legal representatives to decide not to pursue that issue at trial.
   3. It was open to the appellant to subpoena the repair manual referred to in Mr Ginn's report, and there is nothing on the evidence that made the issue of such a subpoena impractical or cost prohibitive. Also, the appellant was able to obtain a copy of the manual subsequent to the trial. The evidence does not address whether he would have been able to do so prior to trial.
   4. Prior to trial, the appellant could have instructed Mr Birks to provide a further report directed to what would have happened to the cable if it had been severed and also asked him to expand on his opinion that the cable may have been cut by others on the Monday morning. Given Mr Birks' expertise and access to the crane in question and other cranes, Mr Birks would have been able to express an opinion concerning such matters.
2. For these reasons, I am satisfied the evidence pertaining to the appeal hypothesis could have been obtained prior to trial by the exercise of reasonable diligence. Accordingly, in my view the additional evidence pertaining to the appeal hypothesis is new evidence.

1. Dr Hutchison created a zoomed-in version of the footage of the repair process from the raw footage that was available prior to trial.
2. The appellant says that while it would have been diligent to obtain a zoomed‑in version of the footage depicting the repair process, it was not 'reasonably diligent' to do so.
3. However, as I have explained in respect of the additional evidence pertaining to the appeal hypothesis, obvious questions that arose for trial were what would have happened to the cable if severed, and if it did retract into the cable housing, how could it be removed. The enhanced version of the footage may have assisted in considering whether the repair process undertaken was consistent with how the cable would be expected to behave, if severed. Additionally, it may have assisted in considering whether the employees' evidence pertaining to what they observed was consistent with the footage.
4. Also, the appearance of the cable itself was plainly a matter relevant to the case theory run at trial. Dr Hutchison was already engaged as an expert on the trial and there is no suggestion on the evidence that the cost of obtaining zoomed-in footage prior to trial was prohibitive. And it is evident from the availability of the zoomed in footage for the appeal, that it could have been obtained from Dr Hutchison prior to trial if it had been requested.
5. Accordingly, I am satisfied that the appellant, with reasonable diligence, could have obtained the zoomed-in footage prior to trial. It is therefore new evidence.

Miscarriage of justice - loss of opportunity contention

1. As I have set out earlier, the appellant's counsel during her oral submissions spoke of the appellant's loss of opportunity to cross‑examine Mr Hawkins and Mr Babich on the precise times that the photographs were taken. I understand the appellant also contends that he lost the opportunity to raise the appeal hypothesis at trial. The appellant contends that there is a miscarriage of justice as a consequence.
2. As I have explained, prior to trial, the appellant and his legal representatives were put on express notice by Mr Birks' and Dr Hutchison's reports of the prospect that the photographs did not depict the cable as first found. Further, the appellant's solicitor was very much alive to this issue. His email sent on 21 January 2021 to the South West Prosecuting branch of the WA Police described the photographs as being extremely confusing and stated that they 'indicate repairs affected'. Additionally, by Mr Birks' report, the appellant and his legal representatives were on express notice prior to trial of a possible case theory that the cable 'may have been cut by others on Monday morning, before the photos were taken'.
3. As I have also explained, from the contents of the photographs tendered at trial, the CCTV footage, and the reports of Mr Birks and Dr Hutchison, it was likely that at least four of the photographs were taken during the repair process. This enabled a significant cross‑examination to be conducted at trial as to when the photographs were taken. Such a cross-examination would not have been 'in the dark'.[556] Rather, the cross-examination could have been conducted by specific reference to what was depicted in the photographs, and to the CCTV footage regarding the repair process. Accordingly, in my view, the appellant had a significant opportunity at trial to cross‑examine Mr Hawkins and Mr Babich on the photographs.
4. The precise times at which the photographs were taken would have enabled a more focused cross-examination as to when they were taken. However, the appellant still had a substantial opportunity at trial to cross-examine on that topic. Therefore, the loss of opportunity was not a significant one. It also needs to be kept in mind that Exhibits 12.4 and 12.6 do not necessarily show a clean cut, as Mr Babich accepted in his evidence. Thus, it suited the appellant's case as run at trial to not challenge Mr Hawkins' evidence that those photographs were taken before he started repairs.
5. Furthermore, the additional evidence does not impugn the evidence of Mr Babich and Mr Bentley. While it may impugn the evidence of Mr Hawkins, I cannot discern on appeal the extent to which it might do so. Depending on his answers to when challenged on the additional evidence, it may have little impact on the credibility of his evidence.
6. For these reasons, and for the reasons I have already given as to the impact of the additional evidence on the credibility of Mr Hawkins, Mr Babich and Mr Bentley's evidence, I am not satisfied that the loss of opportunity to cross‑examine as to the precise times at which the photographs were taken gives rise to a miscarriage of justice.
7. Further, I do not accept that the appellant did not have a fair opportunity to put the appeal hypothesis at trial. At risk of repetition, the question of whether the cable was severed when first observed was an obvious question to consider in advance of trial and Mr Birks put the appellant and his legal representatives on express notice of that possibility. There is also no evidence before me that the appellant's legal representatives did not consider, and discount, running that hypothesis at trial.

Additional matters raised by the appellant in support of the loss of opportunity contentions

1. The appellant also raised a number of additional matters in support of the loss of opportunity contention.
2. The appellant referred to Mr Hawkins' evidence at trial that he would not have wiped the ends of the cable before taking the photographs. The appellant says he could have cross-examined Mr Hawkins at trial on this evidence by reference to when the first photograph was taken. The appellant says that it is now known that the first photograph was taken at 08:24:14 (Exhibit 12.4), and Mr Hawkins is seen in the CCTV footage at 08:23:30 wiping something with his shirt, while he is near the anchor point. However, Mr Hawkins can first be seen on the footage taking photographs at around 08:23:38, after he is seen wiping his shirt. It was therefore open to the appellant's trial counsel to cross‑examine Mr Hawkins on this topic by reference to the CCTV footage.
3. The appellant also sought to advance the loss of opportunity contention by reference to Mr Ginn's evidence at trial that 'if the boom is fully retracted [when the cable is severed], it will retract and still have a certain amount exposed, still hanging out from it'.[557] The appellant says that when this evidence was given, Mr Ginn was aware of the preset tension for reel.[558] The appellant says that the appellant's trial counsel, when faced with this evidence, had the invidious options described by Pullin JA in Hillstead,[559] of either cross‑examining 'in the dark', or not cross-examining and running the risk of the court attaching weight to the opinion.
4. The evidence of Mr Ginn regarding the retraction of the cable related to a peripheral matter at trial. By the time Mr Ginn gave evidence, each of Mr Hawkins, Mr Babich and Mr Bentley had completed their evidence. Their cross-examination was conducted on the premise that the cable was severed at the time they first observed it. On that premise, whether the cable retracted fully or partially was very much peripheral to the issues raised at trial. Mr Babich had said in cross-examination that if the cable was cut or severed, it would retract into the drum and spool (see [107] above). That evidence was not explored in cross-examination. Further, it was open to the appellant's legal representatives to speak to Mr Birks about Mr Babich's and Mr Ginn's evidence, and if they thought it necessary, lead evidence from Mr Birks on the topic.
5. The appellant also refers to the following further matters. The learned magistrate accepted Mr Ginn's evidence that when the crane is packed up, the cable has the least amount of tension on it.[560] In rejecting the inference that the cable severed by attrition, the learned magistrate took account of the fact that the cable had been repaired with 'a running repair patch job' and still managed to operate for months without fault.[561] The learned magistrate proceeded on the incorrect premise that the 'repair job' was a splicing of the cable, as opposed to there being an initial unsuccessful attempt to splice the cable, after which, the cable was reconnected by soldering it to the anchor point.[562]
6. The learned magistrate's findings to which I have referred in the preceding paragraph were in respect of his Honour's rejection of the inference that the cable severed by attrition. The appellant does not suggest on appeal that is an available inference. Moreover, questions as to the tension on the cable when the crane was parked up, and how the repair was carried out, were obvious matters to consider prior to, and at, trial. The appellant could have led evidence from Mr Birks at trial directed to the question of whether the cable would have less tension on it when the crane was parked up. The appellant also could have cross-examined as to how the repair was conducted, and concluded, by reference to the CCTV footage available at trial.

Conclusion regarding the loss of opportunity contentions

1. For these reasons, and the reasons I have given in respect of Grounds 1 and 2, I do not accept that the further contentions raised by the appellant give rise to a miscarriage of justice.
2. Accordingly, even if the appellant had sought, and been granted, leave to run a loss of opportunity ground, it would not succeed.

1. Finally, the appellant's chronology asserted that Ms Read's statement, the email from Mr Casagrande attaching the photographs with red circles, the screenshots of metadata of those images, and the email dated 11 January 2023 from Constable Rapley were not disclosed under the Criminal Procedure Act 2004 (WA) until after trial.[563] Further, the appellant asserts in his chronology that the Tadano repairs and service manual were not disclosed under the Criminal Procedure Act at all.[564]
2. The respondent's counsel in his oral submissions expressed a concern that all or some of these parts of the chronology might be alleging a breach of the prosecutor's disclosure obligations under the Criminal Procedure Act. I do not consider that contention is made by the appellant. Such a contention is not encapsulated within the grounds of appeal, nor was it developed in oral argument. Also, if such a contention was to be made, it would not be made by way of a chronology.
3. In any event, the critical pieces of evidence that the appellant relies upon in respect of this appeal are the photographs containing the metadata, the further report of Mr Birks, and Ms Read's statement. The photographs containing the metadata and Ms Read's statement were obtained by the prosecution after trial. Mr Birks' further report was obtained by the appellant after trial.

1. As will be apparent from these reasons, the appellant's approach on this appeal has been wide ranging.
2. The additional evidence, taken together with the evidence adduced at trial, does not cause me to have any doubt about the appellant's guilt. Nor am I satisfied that it gives rise to a significant possibility that the learned magistrate would have acquitted the appellant if the additional evidence had been adduced at trial. I am also not satisfied that the additional evidence gives rise to a miscarriage of justice in the more general sense advanced by the appellant.
3. Leave to appeal is refused and the appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Mr Birks' appeal report, Appeal Exhibit 3, page 8.

[3] Hearing 10 June 2022, ts 433 - ts 434.

[4] Appeal hearing, ts 402, ts 403 and ts 497.

[5] Samuels v The State of Western Australia [2005] WASCA 193 [56].

[6] Grewal v Director of Public Prosecutions for Western Australia [2024] WASC 92 [23] - [24].

[7] Clarke v The State of Western Australia [2018] WASCA 14 [237], [239] - [241].

[11] See Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 520 (Barwick CJ) cited in Clarke [251] (Buss P).

[13] Houghton v The State of Western Australia [No 2] [2022] WASCA 7 [197].

[14] Hillstead v The Queen [2005] WASCA 116.

[15] Hillstead [20] - [22], [30].

[23] Hillstead [16], read together with the reference in [11] of Hillstead to Ratten.

[24] Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659, 676 (Mason J).

[30] CGF v The State of Western Australia [2023] WASCA 187 [114].

[31] Sturniolo v The State of Western Australia [2023] WASCA 147 [240]. See also Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, 618 - 619 [9] (Gleeson CJ).

[32] Addendum to the appellant's closing submissions applying the law dated 7 August 2024, par 7.

[45] Hearing 21 February 2022, ts 42 - ts 43.

[48] Hearing 21 February 2022, ts 52 - ts 53.

[50] Hearing 21 February 2022, ts 57, ts 59.

[69] Hearing 21 February 2022, ts 103 - ts 104.

[84] Hearing 22 February 2022, ts 138 - ts 139.

[85] Hearing 23 February 2020, ts 140 - ts 141.

[94] Hearing 22 February 2022, ts 159 - ts 160.

[96] Hearing 22 February 2022, ts 160 - ts 161.

[100] Hearing 22 February 2022, ts 162.

[101] Hearing 22 February 2022, ts 166.

[102] Hearing 22 February 2022, ts 171.

[103] Hearing 22 February 2022, ts 177.

[106] Hearing 22 February 2022, ts 178.

[107] Hearing 22 February 2022, ts 189 - ts 190.

[108] Hearing 22 February 2022, ts 204.

[109] Hearing 22 February 2022, ts 205.

[110] Hearing 22 February 2022, ts 206.

[112] Hearing 23 February 2022, ts 218.

[113] Hearing 23 February 2022, ts 219.

[115] Hearing 23 February 2022, ts 219.

[116] Hearing 23 February 2022, ts 221.

[118] Hearing 23 February 2022, ts 222.

[119] Hearing 23 February 2022, ts 223.

[121] Hearing 23 February 2022, ts 224.

[122] Hearing 23 February 2022, ts 225.

[123] Hearing 23 February 2022, ts 225.

[124] Hearing 23 February 2022, ts 226.

[126] Hearing 23 February 2022, ts 226 - ts 227.

[127] Hearing 23 February 2022, ts 227 ‑ ts 228.

[128] Hearing 23 February 2022, ts 228.

[129] Hearing 23 February 2022, ts 228 - ts 229.

[130] Hearing 23 February 2022, ts 231.

[131] Hearing 23 February 2022, ts 232.

[133] Hearing 23 February 2022, ts 233.

[134] Hearing 23 February 2022, ts 234.

[135] Hearing 23 February 2022, ts 235.

[136] Hearing 23 February 2022, ts 236.

[137] Hearing 23 February 2022, ts 237.

[138] Hearing 23 February 2022, ts 237.

[139] Hearing 23 February 2022, ts 238.

[141] Ibid. The transcript says that Mr Hawkins used the word 'take' instead of 'tape', however the use of the word 'take' must be an error.

[142] Hearing 23 February 2022, ts 239.

[144] Hearing 23 February 2022, ts 241.

[145] Hearing 23 February 2022, ts 242.

[146] Hearing 23 February 2022, ts 243.

[147] Hearing 23 February 2022, ts 244.

[149] Hearing 23 February 2022, ts 245.

[150] Hearing 23 February 2022, ts 245.

[151] Hearing 23 February 2022, ts 246.

[153] Hearing 23 February 2022, ts 248.

[154] Hearing 23 February 2022, ts 249.

[155] Hearing 23 February 2022, ts 250.

[156] Hearing 23 February 2022, ts 250 - ts 251.

[157] Hearing 23 February 2022, ts 252.

[158] Hearing 23 February 2022, ts 253.

[159] Hearing 23 February 2022, ts 254.

[161] Hearing 23 February 2022, ts 257.

[162] Hearing 23 February 2022, ts 259 - ts 260.

[163] Hearing 23 February 2022, ts 260.

[164] Hearing 23 February 2022, ts 261.

[165] Hearing 23 February 2022, ts 264 - ts 265.

[166] Hearing 23 February 2022, ts 266.

[167] Hearing 23 February 2022, ts 267.

[168] Hearing 23 February 2022, ts 267 - ts 268.

[169] Hearing 23 February 2022, ts 268.

[170] Mr Gregory was then the appellant's solicitor.

[171] Hearing 23 February 2022, ts 269.

[173] Hearing 23 February 2022, ts 272.

[174] Hearing 23 February 2022, ts 273.

[175] Hearing 23 February 2022, ts 275.

[176] Hearing 23 February 2022, ts 276.

[177] Hearing 23 February 2022, ts 277.

[178] Hearing 23 February 2022, ts 278.

[179] Hearing 23 February 2022, ts 279.

[180] Hearing 23 February 2022, ts 280.

[181] Hearing 23 February 2022, ts 281.

[182] Hearing 23 February 2022, ts 281.

[183] Hearing 23 February 2022, ts 281 - ts 282.

[184] Hearing 23 February 2022, ts 282.

[185] Hearing 23 February 2022, ts 283.

[186] Hearing 23 February 2022, ts 284.

[187] Hearing 23 February 2022, ts 285.

[188] Hearing 23 February 2022, ts 286 - ts 288.

[189] Hearing 23 February 2022, ts 288.

[191] Hearing 23 February 2022, ts 289.

[192] Hearing 23 February 2022, ts 291.

[193] Hearing 23 February 2022, ts 292.

[194] Hearing 23 February 2022, ts 293.

[196] Hearing 23 February 2022, ts 294.

[198] Hearing 23 February 2022, ts 294.

[199] Hearing 23 February 2022, ts 295.

[201] Hearing 23 February 2022, ts 296.

[202] Hearing 23 February 2022, ts 296 - ts 297.

[203] Hearing 23 February 2022, ts 300.

[204] Hearing 23 February 2022, ts 304.

[205] Hearing 23 February 2022, ts 305.

[206] Hearing 23 February 2022, ts 307.

[207] Hearing 23 February 2022, ts 308.

[208] Hearing 24 February 2022, ts 331.

[209] Hearing 24 February 2022, ts 333.

[210] Hearing 24 February 2022, ts 334.

[211] Hearing 24 February 2022, ts 336.

[212] Hearing 24 February 2022, ts 337.

[213] Hearing 24 February 2022, ts 338.

[214] Hearing 24 February 2022, ts 339 - ts 340.

[215] Hearing 24 February 2022, ts 341.

[216] Hearing 24 February 2022, ts 344.

[217] Hearing 24 February 2022, ts 345.

[218] Hearing 24 February 2022, ts 346.

[220] Hearing 24 February 2022, ts 349.

[221] Hearing 24 February 2022, ts 348.

[222] Hearing 24 February 2022, ts 350 - ts 351.

[223] Hearing 24 February 2022, ts 358.

[224] Hearing 24 February 2022, ts 359.

[225] Hearing 24 February 2022, ts 360.

[226] Hearing 24 February 2022, ts 362.

[227] Hearing 24 February 2022, ts 361.

[228] Hearing 24 February 2022, ts 362.

[229] Hearing 24 February 2022, ts 362 - ts 363.

[230] Hearing 24 February 2022, ts 363 - ts 364.

[231] Hearing 24 February 2022, ts 364.

[232] Hearing 24 February 2022, ts 365.

[233] Hearing 24 February 2022, ts 366.

[236] Hearing 24 February 2022, ts 368.

[237] Hearing 24 February 2022, ts 369.

[239] Hearing 24 February 2022, ts 370.

[241] Hearing 24 February 2022, ts 370 - ts 272.

[242] Hearing 24 February 2022, ts 373 - ts 374.

[243] Hearing 24 February 2022, ts 374.

[244] Hearing 24 February 2022, ts 377 - ts 378.

[245] Hearing 24 February 2022, ts 378.

[246] Hearing 24 February 2022, ts 391 - ts 392.

[247] Hearing 24 February 2022, ts 392 - ts 393.

[248] Hearing 24 February 2022, ts 397.

[249] Hearing 24 February 2022, ts 399.

[250] Hearing 24 February 2022, ts 403.

[255] Figure 4.3.1 photo C3A is Trial Exhibit 12.4. Figure 4.3.2, photo 4BO is Trial Exhibit 12.6. Figure 4.3.3, photo 6BD is Trial Exhibit 12.2. Figure 4.3.4, photo AE9 is Trial Exhibit 12.1.

[257] Hearing 25 February 2022, ts 9, ts 11.

[258] Hearing 25 February 2022, ts 10.

[259] Hearing 25 February 2022, ts 11.

[260] Hearing 25 February 2022, ts 14 - ts 15.

[261] Hearing 25 February 2022, ts 15.

[262] Hearing 25 February 2022, ts 17 - ts 18.

[263] Hearing 25 February 2022, ts 18.

[264] Hearing 25 February 2022, ts 18.

[265] Hearing 25 February 2022, ts 19 - ts 20.

[266] Hearing 25 February 2022, ts 20.

[267] Hearing 25 February 2022, ts 22.

[268] Hearing 25 February 2022, ts 23.

[269] Hearing 25 February 2022, ts 24.

[270] Hearing 25 February 2022, ts 26.

[271] Hearing 25 February 2022, ts 28.

[272] Hearing 25 February 2022, ts 28 - ts 29.

[273] Hearing 25 February 2022, ts 29.

[274] Hearing 25 February 2022, ts 30 - ts 31.

[275] Hearing 25 February 2022, ts 36.

[276] Hearing 25 February 2022, ts 37.

[277] Hearing 25 February 2022, ts 38.

[278] Hearing 25 February 2022, ts 60.

[279] Hearing 25 February 2022, ts 62.

[285] Hearing 10 June 2022, ts 413 ‑ ts 415.

[286] Hearing 10 June 2022, ts 415. While his Honour did not use the word 'within', it was clear his Honour meant to refer to persons within 5 m of the crane cab.

[287] Hearing 10 June 2022, ts 414 ‑ ts 415.

[290] Hearing 10 June 2022, ts 415 - ts 416.

[294] Hearing 10 June 2022, ts 416 - ts 417.

[297] Hearing 10 June 2022, ts 421 - ts 423.

[302] Hearing 10 June 2022, ts 426 - ts 427.

[305] Hearing 10 June 2022, ts 429 - ts 433.

[307] Hearing 10 June 2022, ts 433 - ts 434.

[308] Hearing 10 June 2022, ts 434 - ts 435.

[310] The photographs in Exhibit 12 are a clearer version of the photographs in Exhibit 2.

[311] Mr Gregory's first affidavit, par 39.

[312] Dr Hutchison's report tendered on appeal, Appeal Exhibit 1, par 3.1.

[313] Mr Gregory's first affidavit, par 35.

[314] Hearing 24 February 2022, ts 334.

[315] Hearing 23 February 2022, ts 237.

[316] Mr Gregory's first affidavit, pages 108 - 109.

[317] Mr Gregory's first affidavit, pages 183 - 232.

[318] Mr Gregory's first affidavit, pages 188 - 189, pars 43 - 44.

[319] Mr Gregory's first affidavit, page 189, par 47.

[320] Mr Gregory's first affidavit, page 190, par 52.

[321] Mr Gregory's first affidavit, pages 208 ‑ 219.

[322] Subject to one minor correction which Dr Hutchison made in oral evidence, appeal hearing ts 375.

[323]Mr Gregory's first affidavit, pages 181 - 182, pars 17 ‑ 18.

[324] Mr Gregory's first affidavit, pages 190 - 191, pars 56 - 59.

[325] Mr Gregory's first affidavit, pages 232 ‑ 235.

[326] Mr Gregory's first affidavit, pages 232 ‑ 233, pars 10 ‑ 11.

[327] Rick is a reference to Mr Casagrande and Brett is a reference to Mr Hawkins.

[328] Mr Gregory's first affidavit, page 233, pars 13 ‑ 14.

[329] Yellow Appeal Book (YAB) 91, part 4, page 6.

[330] YAB 91, part 7, page 10.

[331] YAB 91, part 8, page 11.

[332] YAB 91, part 8, page 11.

[333] YAB 91, part 9.1, page 12.

[334] YAB 91, part 9.2, page 12.

[335] YAB 91, part 9.3, pages 12 ‑ 13.

[344] YAB 93, page 6. See Appeal hearing, ts 246.

[346] Appeal hearing, ts 196 - ts 197.

[352] Appeal hearing, ts 197 - ts 198.

[354] Appeal hearing, ts 200 - ts 201.

[356] Appeal hearing, ts 205 - ts 206.

[360] Appeal hearing, ts 208 - ts 209.

[362] Appeal hearing, ts 209 - ts 210.

[374] Appeal hearing, ts 242 - ts 243.

[376] Appeal hearing, ts 243 - ts 244.

[381] Appeal hearing, ts 248 - ts 249.

[382] Book of additional materials, document 23.

[383] Appeal hearing, ts 251 - ts 252.

[384] Appeal hearing, ts 252 - ts 253.

[390] Appeal hearing, ts 260 - ts 261.

[391] Appeal hearing, ts 261 - ts 262.

[392] Appeal hearing, ts 263 - ts 264.

[393] Appeal hearing, ts 264 - ts 265.

[394] Appeal hearing, ts 265 - ts 266.

[395] White Appeal Book (WAB) 46, video at 00:21.

[399] Appeal hearing, ts 270 - 271. The negative 5 metres is comprised by the 1 m on show and the 4 m that the cable would be expected to retract around the reel if it was operating in accordance with specifications.

[404] Appeal hearing, ts 273 - ts 275.

[408] Appeal hearing, ts 276 - ts 277.

[410] Appeal hearing, ts 278 - ts 279.

[411] Appeal hearing, ts 282 - ts 283.

[414] Appeal hearing, ts 284 - ts 286.

[424] Appeal hearing, ts 299 - ts 300.

[428] Appeal hearing, ts 402 - ts 403.

[431] Appeal hearing, ts 405 - ts 407.

[432] Appeal hearing, ts 402 and ts 497.

[433] Appeal hearing, ts 408 - ts 409.

[435] Appeal hearing, ts 420 - ts 422.

[436] Appeal hearing, ts 430 - ts 431.

[437] Mr Gregory's first affidavit, pages 167 - 175.

[439] Appeal hearing, ts 432 - ts 433, ts 435.

[440] Appeal hearing, ts 440 and ts 534.

[441] Appeal hearing, ts 440 - ts 442.

[442] Appeal hearing, ts 443 - ts 444.

[448] Appeal hearing, ts 477 and ts 540 - ts 541.

[449] Appeal hearing, ts 540 - ts 542.

[450] Appeal hearing, ts 487 and ts 542.

[451] Appeal hearing, ts 491 - ts 492.

[452] Appeal hearing, ts 590 - ts 591.

[456] Respondent's supplementary written submissions dated 16 August 2024, pars 2.1 - 2.4.

[457] Appeal hearing, ts 565 - ts 566.

[459] Respondent's supplementary written submissions dated 16 August 2024, par 5.7

[461] Appeal hearing, ts 575 - ts 576.

[462] Appeal hearing, ts 578 - ts 579.

[463] Appeal hearing, ts 593 - ts 594.

[464] Appeal hearing, ts 577 - ts 578.

[466] Appeal hearing, ts 582 - ts 583; WAB 66 08:13:54.

[468] Appeal hearing, ts 593 - ts 594.

[470] Appeal hearing, ts 593. See also ts 615.

[473] Respondent's outline of supplementary submissions dated 16 August 2024, pars 12 and 13; see also Appeal hearing, ts 625 - ts 626.

[474] Appeal hearing, ts 594 - ts 595.

[475] Appeal hearing, ts 595 - ts 596.

[480] Appeal hearing, ts 612 - ts 613.

[483] Appeal hearing, ts 618 - ts 619.

[488] Appeal hearing, ts 633 - ts 637.

[492] Appeal hearing, ts 638 - ts 640.

[494] Appeal hearing, ts 640 - ts 641.

[496] Appeal hearing, ts 649 - ts 650.

[497] Appeal hearing, ts 498, where the appellant's counsel accepted this was the case.

[500] Mr Gregory's first affidavit, pages 54 - 57.

[501] Mr Gregory's first affidavit, pages 54 - 57, pars 11 ‑ 13.

[502] Mr Gregory's first affidavit, pages 54 - 57, par 22.

[503] Mr Gregory's first affidavit, page 57, par 22.

[504] Hearing 23 February 2022, ts 221.

[505] Hearing 23 February 2022, ts 237.

[506] Mr Gregory's first affidavit, pages 232 - 233, pars 7 ‑ 11.

[507] Mr Gregory's first affidavit, page 233, pars 13 ‑ 14.

[508] Respondent's supplementary submissions dated 16 August 2024, par 12.

[509] As to the importance of demeanour in the assessment of credibility, see Hayward v The State of Western Australia [2025] WASCA 35.

[510] Hearing 21 February 2022, ts 86.

[511] Hearing 21 February 2022, ts 106.

[512] Hearing 22 February 2022, ts 116.

[513] Hearing 22 February 2022, ts 118.

[514] Hearing 22 February 2022, ts 138 ‑ 139.

[515] Hearing 22 February 2022, ts 140 ‑ 141.

[516] Hearing 22 February 2022, ts 141.

[520] The Queen v Baden-Clay [2016] HCA 35 [47].

[522] Hearing 23 February 2022, ts 228.

[523] Hearing 23 February 2022, ts 257.

[524] Hearing 25 February 2022, ts 28 - ts 29.

[525] Hearing 23 February 2022, ts 257.

[527] The parties accept that Mr Babich is the person who leans in towards the reel.

[528] YAB 91, part 8, page 11.

[529] YAB 93, pages 4 - 5, point 6. Appeal hearing, ts 244.

[530] Appeal hearing, ts 538 (in respect of Dr Hutchison), ts 534 - ts 535 (in respect of Mr Birks).

[534] Hearing 22 February 2022, ts 160.

[535] Appeal hearing, ts 208 - ts 209.

[536] Mr Gregory's first affidavit, par 35.

[537] Hearing 23 February 2022, ts 245.

[538] Hearing 23 February 2022, ts 237.

[539] Hearing 24 February 2022, ts 334.

[540] Mr Gregory's first affidavit, par 38.

[541] Mr Gregory's second affidavit, page 58.

[542] Mr Birks' report dated 4 January 2022, page 8.

[543] Mr Birks' report dated 4 January 2022, page 8.

[544] See in particular, pars 1.10 and 8.9 of Dr Hutchison's report tendered at trial, which is Trial Exhibit 24.

[545] See the struck out parts of Dr Hutchison's report.

[547] Hearing 23 February 2022, ts 247 - ts 249.

[548] Appellant's supplementary submissions dated 25 March 2024, par 12(d) and (e).

[549] Appellant's supplementary submissions dated 25 March 2024, par 18(b).

[550] Appeal hearing, ts 443 - ts 444.

[552] Appeal hearing, ts 214. Appeal Exhibits 7 and 19.

[555] Mr Gregory's first affidavit, par 21d.

[557] Hearing 23 February 2022, ts 284.

[558] Addendum to the appellant's closing submissions applying the law dated 7 August 2024, par 10.

[560] Hearing 10 June 2022, ts 431 and ts 434.

[562] Addendum to the appellant's closing submissions applying the law dated 7 August 2024, par 12.

[563] Items 16, 17, 18 and 29 of Annexure A to the appellant's submissions dated 6 August 2024.

[564] Item 36 of Annexure A to the appellant's submissions dated 6 August 2024.