3 Particulars (b) and (d) were disputed by the defendant. The prosecutor therefore was required to prove these two particulars beyond reasonable doubt. This matter will be dealt with in detail later in these sentencing reasons.
Agreed factual background
4 On 8 March 2007, Mr Bella was fatally injured after becoming trapped between the moving parts of the Strapper carriage and another item of machinery, "a Consolidated Up Stroking Cotton Bale Press (the Press).
5 Mr Bella had been employed by the defendant as a "ginner" since 1996. Craig Gaston, at the time of the accident, was the Gin Manager and supervisor of the defendant's employees at the Midkin Gin. Darren George Sutherland was employed at the Midkin Gin as an electrician.
6 The Press was used to compact cotton into bales. The Strapper fastened together the cotton bales. Wires were fed through "heads" of the Strapper under the compacted cotton bales to a component of the adjacent Press and then fed back into the Strapper to fasten the cotton bales. Power and operation of the Strapper was controlled by a Strapper Console. The main electrical source and isolator for the Strapper was housed inside the CP-100 Strapper Electrical Cabinet (Electrical Cabinet).
7 The Press extended to the ceiling and through the floor to a room below called the Press Pit. Adjacent to the Press were two operating consoles, the Strapper Console (mentioned above) and the Press Console. In the centre of the Strapper Console was an electronic touch screen with power control buttons located immediately below the screen. The left-hand button was an emergency stop control. On the floor in front of both Consoles was an electronic pressure mat (safety mat). Three more safety mats were adjacent to the Consoles on the same side. When activated (for example, by a worker standing on them), the safety mats deactivated electrical power to the moving parts of the Press and the Strapper.
8 The Strapper was attached to the Press by a cross beam on the eastern side of the Press and travelled laterally along the cross beam toward the Press. It had five electrical "servomotors" with individual controls that could be operated manually or remotely. The five servomotors, identified as A, B, C, D and E heads respectively (the Strapper heads) controlled individual drive wheels. Under the drive wheels, was a knotter box. Under it was an exit track for the wires that fed under a cotton bale then to the Press and back into an entry track on the Strapper, to fasten the cotton bales.
9 On 7 March 2007, the day before the fatal accident, Mr Gaston prepared to undertake maintenance work on the Press ram. In order to do this, it was necessary to move the Strapper away from the Press ram. Mr Sutherland deactivated the safety mats in front of the Press and the Strapper by using a "programmable logic control'. In an interview with WorkCover, Mr Sutherland said he disconnected (the power to) the safety mats at Mr Gaston's request so that Mr Gaston could gain access to the Press with a forklift. Mr Gaston, in an interview with WorkCover, said that he did not instruct Mr Sutherland to deactivate the safety mats. Whichever version is correct, it was an agreed fact that prior to the accident on 8 March 2007, the safety mats were not reactivated.
10 At about 12.00pm on 7 March 2007, Mr Gaston removed the captive key located at the top right-hand corner of the Press Console. The removal of the captive key isolated the electrical control power to the Press and to the Strapper Carriage. The effect of this was that all parts of the Strapper Carriage (with the exception of the Strapper heads) and the Press were isolated.
11 The captive key was removed by Mr Gaston from the Press Console so that he could carry out maintenance work in the Press pit. As at 8 March 2007, at the time of the accident, it had not been replaced.
12 At and prior to the offence, the defendant had a Standard Work Instruction (SWG173) for the isolation of machinery. SWG173 required that prior to the maintenance work being undertaken on plant, it is first "shut down" and a "padlock or danger tag [applied] to [the] local isolator". Mr Gaston complied with the first part of the instruction, that is, he removed the captive key from the local isolator (the Press Console) which "shut down" the Press and the Strapper carriage (but not the Strapper heads). He did not comply with the second part of the instruction. His reasons for not doing so were explained by him in his WorkCover interview:
"SWG 262 was not relevant to the task being performed. SWG 190 was followed to move the ram out of position. Not all steps of SWG173 were followed but this was because I had removed the captive key. I did not consider that it was necessary to apply [sic] additional padlock to the Estop, as the Press and strapping machine could not be operated with the captive key removed. The removal of the captive key isolates both the strapping machine & press from all control power, which disables both machines".
13 SWG173 also required that if a local isolator was not available then an "authorised person" was to isolate the main power supply in the switch room. The procedure to be followed when isolating the main power supply was set out in SWG173 as follows:
(a) Remove the control fuse first and then remove the three main fuses that supply the motor at the switchboard. Apply a danger tag to the top of the contractor. Ensure all fuses are identified as to where they were removed from.
(b) Turn the circuit breaker to the off position and install a lockout device. Apply a padlock or danger tag.
(c) Turn switch to the off position and apply padlock or danger tag."
14 SWG190, which was referred to by Mr Gaston in his WorkCover interview, was another safe work instruction in practice at the time of the offence. It set out the procedure to be followed when maintenance work was to be performed on an unguarded machine (that is, when the power supply had not been isolated). Two steps to be followed are set out in the agreed facts:
(a) "The Gin Manager or Supervisor is to be notified that a machine is to be run unguarded."
(b) "The unguarded machine must have an observer and/or a lookout man near its isolation switch at all times while the machine is running."
15 On the morning of 8 March 2007, Mr Gaston instructed Mr Bella to load spools of wire and bolt down the Strapper carrier of "Gin No 5". Mr Gaston then went down to the Press Pit to carry out the maintenance work, following the preparations he had made the day before.
16 Mr Bella completed the task assigned to him by Mr Gaston. He then commenced another task which involved feeding the wire through the Strapper heads. He encountered a difficulty feeding the wire through Strapper head A because the position of the Press Console was obstructing his access. It will be recalled that although the captive key had been removed from the Press Console by Mr Gaston the day before, electrical power was still being delivered to the Strapper heads via the electrical cabinet (the main power supply). The captive key had, however, isolated the power to the moving parts of the Strapper and Press which had been rendered immobile. As a result, Mr Bella could not reposition the Strapper so that he could gain access to Strapper head A. Mr Bella asked the electrician, Mr Sutherland, if he could "make the Strapper so he could move it". Neither Mr Bella, nor Mr Sutherland, discussed this step with Mr Gaston or with any other person.
17 Mr Sutherland, in compliance with Mr Bella's request, reconfigured the wiring (by changing two wires) in a coil control relay housed inside the main electrical cabinet. As a result, power was restored to the Strapper. His actions overrode the local isolation of the Press Console undertaken the previous day by Mr Gaston following the removal of the captive key. Mr Sutherland was able to restore power to the Strapper because the electrical cabinet had not been "locked out". Locking out the electrical cabinet (by way of a padlock for example), according to the agreed facts, prevents it from being "powered up".
18 According to the agreed facts:
Manual restoration of power to the Strapper by by-passing the local isolation could have been prevented if power had been isolated at the Electrical Cabinet and a padlock applied to the grey mains isolator level on the Electrical Cabinet.
19 When the Strapper was installed a Manual (IFP Ultra Twist Operator Manual) was supplied to the defendant which provided (on page 4):
It is mandatory for the main electrical service panel to be locked out/tagged out before performing any service or maintenance on the machine.
20 In oral examination, during the sentence proceedings Mr Sutherland's attention was directed to the procedure set out on page 4 of the Manual. He recognised the document but said that as at 8 March 2007 he could not "specifically" recall having received any instruction or training with regard to the procedure and did not recall having been shown page 4 of the Manual. Mr Sutherland, on 8 March 2007, however, was not intending to perform any service or maintenance work on the Strapper. He reconnected the power supply so that Mr Bella could gain access to the Strapper head in order to feed through the wire. Before Mr Bella could gain access he needed the power restored to the Strapper so it would move.
21 As a result of Mr Sutherland's actions, the Strapper was in an "unguarded" condition. This meant that the procedure set out in SWG190 should have been followed and Mr Bella (and/or Mr Sutherland) should have notified Mr Gaston, the Gin Manager, that the Strapper was to run "unguarded". Nor did Mr Bella (nor Mr Sutherland) arrange for an observer or a lookout man to be stationed near the Strapper's isolation switch while the machine was running. As events transpired, however, this last mentioned procedure would, in all probability, have been of little utility. The first mentioned procedure on the other hand would have alerted Mr Gaston to Mr Bella's intentions, and appropriate action may have been taken. Unfortunately, this did not occur.
22 Following the wiring by-pass, Mr Sutherland remained in the vicinity of the Strapper for a short while and observed Mr Bella move the Strapper and tie a knot using the Strapper "A" head in order to test the knotter box. Mr Sutherland also helped Mr Bella tie a knot by handing him the wire loop.
23 Mr Sutherland returned to his desk. Shortly after he heard a rapid movement followed by a heavy expulsion of air. He looked in the direction of the Strapper and saw that Mr Bella was trapped between the Strapper and a material column of the press. Mr Sutherland ran to the Electrical Cabinet and switched off the main electrical isolator. He then called for assistance. Mr Bella was taken to Moree Local Hospital and was pronounced dead as a result of crush injuries sustained to his head and chest.
24 An incident report generated by the defendant after the accident revealed a defect in the Strapper's "homing sequence" which meant that it had failed to return to its "home position" within the specified timeframe. Testing by Jamie Condon, an electrical manager employed by the defendant, identified that in 97 per cent of homing sequences, the Strapper Carriage would stop for variable periods of time at different locations along the Strapper track and then restart and complete the homing sequence. According to the prosecutor, who gave evidence during the sentence proceedings, Mr Condon discovered that one of the controller units (the Lexium Controller) for the Strapper had malfunctioned and that the LED screen on the unit had failed to display the error message once the fault occurred. In cross-examination, the prosecutor agreed that as a result of the malfunction the Strapper Carriage could move erratically along the track towards the "home position" and without warning. It appears to have been accepted by the parties that this is what occurred at the time of the accident.
25 Other evidence also established that the Lexium Controller was a sealed unit containing proprietary software which the defendant could not access for the purpose of carrying out internal repairs. After the Strapper was installed the manufacturer, IFP, had carried out annual maintenance on the machine and no issues had been identified by it as a result of this maintenance in relation to the Lexium Controller.
Disputed particulars
26 Disputed particular (b) alleges a failure to provide both Mr Bella and Mr Sutherland with information and instruction, "in relation to the isolation of power and maintenance of the Strapper" necessary to ensure Mr Bella's, and/or, Mr Sutherland's safety while maintenance was being undertaken on the Strapper. (The alternative proposition in particular (b) was said to arise because Mr Sutherland was in the vicinity of the Strapper when Mr Bella moved it.)
27 In oral submissions, the prosecutor relied on alleged failures of the defendant to ensure that Mr Bella and Mr Sutherland were adequately informed and instructed about the procedures outlined in SWI173, SWG190 and page 4 of the Manual.
28 According to the prosecutor, Mr Gaston only partly complied with SWI173, that is, he removed the captive key but did not apply a padlock or danger tag to the emergency stop button (ESB) on the press console. The relevance of Mr Gaston's failure to complete this second step was said to demonstrate that the defendant's "paper system" was not followed.
29 It is difficult to see what relevance Mr Gaston's actions with respect to the procedure outlined in SWI173 could have to particular (b). The particular is specifically directed to a failure on the part of the defendant to provide necessary instruction and information to Mr Bella and Mr Sutherland. It does not refer, either expressly or impliedly, to Mr Gaston, or to any other employee of the defendant.
30 The risk to safety was characterised by the prosecutor as the risk of being struck by the unguarded, moving Strapper once the captive key system had been bypassed (by Mr Sutherland). Mr Sutherland's actions had nothing to do with SWI173, which concerned the local isolation of machinery. Had Mr Gaston fully complied with SWI173 and applied a padlock or danger tag to the ESB on the Press Console, this would have had no impact at all on the risk to Mr Bella's (or Mr Sutherland's) safety. Mr Sutherland's actions in overriding the local isolator (the captive key) were accompanied by his reconfiguring of the wiring in the main electrical cabinet. He would have been able to accomplish this even if Mr Gaston had fully complied with SWI173.
31 SWG190 was the relevant procedure that should have been followed by Messrs Bella and Sutherland. The failure to follow a procedure formulated by the defendant does not equate, however, to a failure on the part of the defendant to provide the necessary, or adequate, information and instruction.
32 The effect of Mr Sutherland's actions in bypassing the captive key system was that the Strapper would run in an unguarded state. SWG190 therefore was the applicable procedure. The first step in the procedure required to be undertaken was that the Gin Manager or supervisor was to be notified that the Strapper was to be run unguarded. Mr Gaston was the Gin Manager. He was not notified by either of the two workers of their intentions. The work Mr Bella intended to perform following Mr Sutherland's bypass of the captive key system was not authorised work. As earlier mentioned, if Step 1 of SWG190 had been followed, Mr Gaston may have taken appropriate action to ensure both workers were not placed at risk.
33 The issue which arises here for consideration however is the adequacy of instruction and information, necessary to ensure the safety of Mr Bella and Mr Sutherland.
34 Both Mr Bella and Mr Sutherland were experienced, senior and well-regarded employees. Mr Sutherland trained apprentices in the SWG190 procedure. He was, therefore, well-aware of the procedure. Mr Bella who, as a Ginner, performed maintenance and supervision work, would, in my view, have also been aware of the procedure. The contrary position in any event was not relied upon by the prosecutor. In oral evidence, Mr Sutherland explained that SWG190 was used when the electrician needed to override interlock safety devices which were present on a number of machines. The procedure involved re-wiring the interlock so that the machine remained operational in order that testing and observation of the machine could be undertaken while the machine was operational.
35 These matters, in my view, suggest that Mr Bella and Mr Sutherland were in fact the recipients of adequate or necessary information and instruction with regard to SWG190. Both were experienced, senior employees. The evidence with regard to Mr Bella in particular suggests that he was very highly regarded. Both men were senior supervisors. Mr Sutherland instructed his apprentices in the SWG190 procedure. In these circumstances, the requisite causal connection between the failure of instructions, etc, with regard to SWG190, and the resultant risk is not made out.
36 This leaves page 4 of the Manual. Mr Sutherland, in his evidence, did not recall receiving any instruction (or training) about the matters identified on page 4 of the Manual. On the other hand, he displayed a detailed knowledge and understanding of lock out and tag out procedures, with which page 4 deals.
37 As with SWI173, however, it is difficult to see the relevance of the procedures on page 4 of the Manual to the risk to safety to which Mr Bella was exposed at the time of the incident. The risk to Mr Bella (and Mr Sutherland) arose after the Strapper was no longer isolated. The procedures at page 4 are directed to isolating the power to machinery.
38 In any event, even if Mr Sutherland's attention had not been directed to the relevant contents on page 4 of the Manual, I have no doubt that he was nevertheless aware of the procedures and well-versed in their implementation. He was, after all, a senior electrician who trained the defendant's apprentices. The procedure outlined on page 4 is directed to the isolation of the Strapper, "before any servicing can be performed". The defendant relied on the confining of the procedure to servicing, submitting that the work performed by Mr Bella at the time of the incident could not be characterised as "servicing work". Nevertheless, on the same page there appears a procedure for locking out or tagging out the "main electrical service panel" before performing any service or maintenance (my emphasis) on the Strapper. I have no doubt, given Mr Sutherland's experience and seniority that he was also aware of, and well capable of implementing, that procedure. It was not however his intention (or Mr Bella's) to lock out or tag out the main electrical service panel (which I take to be the same thing as the main electrical cabinet).
39 Mr Sutherland's actions therefore in returning power to the Strapper may be construed as a failure on his part to follow the procedures on page 4 of the Manual, but it does not follow from this that the defendant failed to provide adequate and necessary instruction to either Mr Bella or Mr Sutherland "in relation to the isolation of power and maintenance of the Strapper".
40 Again, given Mr Bella's experience in maintenance matters, and his seniority, there can be little or no doubt that he was also aware of the procedure at page 4 of the Manual. The work he was authorised or instructed to do by Mr Gaston, however, did not involve returning power to the Strapper. Nor could it be described as a logical next step in the work he was instructed to perform. There is no obvious connection between loading spools of wire and bolting down the Strapper head and then proceeding to feed the wire through the Strapper heads, which was work Mr Bella was not instructed to do and which could only be accomplished by overriding the captive key system earlier set up by his supervisor, Mr Gaston. According to Harvey John Gaynor, the defendant's General Manager (whose evidence was not challenged) Mr Bella was instructed by Mr Gaston to perform work on the battery condenser located elsewhere in the Gin after he had completed the two earlier tasks Mr Gaston had assigned to him.
41 The prosecutor has therefore failed to establish beyond reasonable doubt the requisite causal nexus between this failure as particularised and the resultant risk to safety.
42 A similar conclusion follows for the same reasons with regard to particular (d) which alleges a failure to supervise Mr Bella and Mr Sutherland while maintenance work was being undertaken on the Strapper.
43 The work being undertaken (which resulted in the relevant risk to safety) was unauthorised and against all available and known procedures (in particular SWG190). In addition, (although more a pertinent consideration in relation to the defence provisions under s 28) it cannot have been contemplated by the defendant that two such experienced and senior workers would fail to follow documented procedures, of which both were aware, to conduct work that neither was authorised to do and which exposed them both to serious risk to their safety. The principle of pro-activity which requires a defendant to factor into a safety regime circumstances where employees are careless, negligent, inattentive, or even disobedient should not be relied upon in circumstances where the employees in question were experienced, senior, highly regarded and whose job descriptions included supervisory responsibilities at a relatively senior level, and who had been trained and instructed in the relevant procedures.
44 The prosecutor also sought to place reliance on a decision of Peterson J in WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIRComm 74 for the proposition that even if there were no specific instructions to an experienced employee not to do something there would still be a failure to supervise in circumstances where the work was capable of being performed and the provision of equipment enabled. The decision, in my view, does not assist the prosecutor. It is readily distinguishable. In Sheather, the defendant was found guilty of a failure to supervise. One factor persuasive of the finding was that the supervisor of workers who were performing work on a live switchboard box was aware of the work being performed and of the fact that the switchboard box was live while the work was being performed.
Systems of work prior to offence
45 I return now to consider the charge to which the defendant has pleaded guilty by reference to particulars (a), (c) and (e).
46 Mr Gaynor, the defendant's General Manager, has set out in an affidavit the defendant's safety systems in place at the Midkin Gin prior to the offence. The affidavit evidences a wide-ranging and comprehensive safety regime. In summary, that regime included the following safe work systems in force prior to the incident: