INSPECTOR LANCE TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LTD

Prosecutor: Mr P.M. Skinner of counsel Solicitors: Ms S. Tankard Moray & Agnew LEGAL REPRESENTATIVES: Defendant: Mr R. Reitano of counsel Solicitors: Mr P. Macken Leigh Virtue & Associates

JUDGMENT: - 24 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Tues 17 July 2001

IRC2012 of 2000 INSPECTOR LANCE STUART TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC2013 of 2000 INSPECTOR LANCE STUART TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC2014 of 2000 INSPECTOR LANCE STUART TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC2015 of 2000 INSPECTOR LANCE STUART TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC2016 of 2000 INSPECTOR LANCE STUART TAYLOR v FLETCHER INTERNATIONAL EXPORTS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 These prosecutions are brought by Inspector Lance Stuart Taylor of the WorkCover Authority of New South Wales against Fletcher International Exports Pty Limited under s15(1) of the Occupational Health and Safety Act, 1983 ("the Act").

2 The charge in matter No. IRC2012 of 2000 reads as follows: On 8 May 1998 at an abattoir premises at Yarrandale Road, Dubbo in the State of New South Wales, ("the workplace") the defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular Leigh Kenneth William Mitchell ("the worker") contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that it failed to provide or maintain a system of work within its blast freezer for the freeing of stillages which had jammed which was safe and without risk to the health of its employees.

3 The charge in matter No. IRC2013 of 2000 reads as follows: On 8 May 1998 at an abattoir premises at Yarrandale Road, Dubbo in the State of New South Wales, ("the workplace") the defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular Leigh Kenneth William Mitchell ("the worker"), contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that it failed to maintain plant used for the movement of meat within the defendant's blast freezer in a condition that was safe and without risks to health. 4 The charge in matter No. IRC2014 of 2000 reads as follows: On 8 May 1998 at an abattoir premises at Yarrandale Road, Dubbo in the State of New South Wales, ("the workplace") the defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular Leigh Kenneth William Mitchell ("the worker"), contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that it failed to provide such information, instruction, training and supervision in relation to work being carried out in the blast freezer room in proximity to the stillage bay as may be necessary to ensure the health and safety at work of its employees, and in particular the worker. 5 The charge in matter No. IRC2015 of 2000 reads as follows: On 8 May 1998 at an abattoir premises at Yarrandale Road, Dubbo in the State of New South Wales, ("the workplace") the defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular Leigh Kenneth William Mitchell ("the worker"), contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that it failed to maintain a place of work under its control, to wit the blast freezer room, in a condition that was safe and without risks to health by reason that there was a stillage jammed in a position on the edge of the upper level stillage bay when it was not otherwise supported in any way, rendering the floor area on which the worker was standing beneath it dangerous.

6 The charge in matter No. IRC2016 of 2000 reads as follows: On 8 May 1998 at an abattoir premises at Yarrandale Road, Dubbo in the State of New South Wales, ("the workplace") the defendant being an employer did fail to ensure the health, safety and welfare at work of all its employees and in particular Leigh Kenneth William Mitchell ("the worker"), contrary to section 15(1) of the Occupational Health and Safety Act, 1983 in that it failed to make arrangements for ensuring the safety and absence of risks to health of the worker in connection with the handling and storage of meat.

7 Mr P.M. Skinner appeared for the prosecution and Mr R. Reitano appeared for the defendant. The defendant pleaded not guilty to the charges.

8 At the hearing the defendant revealed it did not cavil with the particulars of all charges as pleaded. The particulars supplied by the Prosecutor for each charge were the same, relevantly: 1. The worker was a labourer who was at all material times employed by the defendant at the workplace. 2. At about 2.30 pm on 8 May 1998 the worker sustained crush injuries and fractures to his left arm and left leg when a storage bench referred to as a "stillage", loaded with meat and weighing approximately three tonnes fell from the upper level stillage bay of the blast freezer to the floor level and pinned the worker beneath it. 3. Prior to the said stillage falling upon the worker it had become jammed on the lip of the upper level stillage by about 2.6 metres above the floor level. 4. At all material times after the said stillage had become jammed the worker in the course of his duties used a crowbar to lever it free. 5. On being freed from its jammed position by the action of the worker, the stillage free-fell to floor level. 6. The stillage fell because it was not supported by the C-ram carriages which were designed to lower it under hydraulic power. 7. The A-ram which propelled the stillages in the upper level stillage bay, had already operated and activated the C-ram so that the C-ram carriages were not in a position to accept the stillage to lower it under power.

9 The defendant revealed the defence to each charge is: the named defendant, Fletcher International Exports Pty Limited, was not the employer at the site, on the day of the accident, as pleaded.

10 The prosecutor to prove "employer", an essential element of any offence under s15 of the Act, called the WorkCover Inspector and relied on further witness statements and documentation. Some witnesses were required for cross examination. The prosecutor first tendered an accident report signed on behalf of the defendant acknowledging the work site where the accident occurred was Yarrandale Road. The report was signed by Mr Jason Blake "OH&S Co-ordinator" and was dated 12 May 1998, four days after the accident. The report was a report to the WorkCover Authority in accordance with s27(1) of the Act. The Co-ordinator on behalf of the company declared "Yes" in answer to question 14 on the report form, "Was the injured person your employee?"

11 There are obligations under the Act for an employer or an occupier of a worksite to report an accident. An Occupational Health and Safety officer at this site met its obligations on behalf of a named company to report. Relevantly, under the Act: Notification of Accidents and Other Matters : 27(1) Where - (a) an accident occurs at a place of work, whether or not it causes the death of, or bodily injury to any person; or (b) any other matter occurs at or in relation to a place of work which affects the health or safety of any person, being an accident or other matter which is required by the regulations to be notified under this section - (c) except as provided by paragraph (d), the occupier of the place of work; or (d) such other person as is prescribed, shall give notice of the accident or other matter in accordance with subsection (2).

(2) A notice of an accident or other matter referred to in subsection (1) shall be given to such persons, within such time and in such manner as are prescribed. 12 The prescription of procedure to be followed has been outlined through regulations under the Act, namely, the Occupational Health and Safety Act (Notification of Accidents) Regulation 1990: Notification of accidents causing death or serious personal injury - employees 5(1) An accident which occurs at a place of work is required to be notified under section 27 of the Act if it causes the death of, or a serious personal injury to, an employee employed at that place of work.

(2) Notice of any such an accident is required to be given by the employer of the employee concerned as soon as practicable (but not later than seven days) after it occurs. (emphasis added) Notification of accidents causing death or serious personal injury - non-employees 6(1) An accident which occurs at a place of work is required to be notified under section 27 of the Act if it causes the death of, or a serious personal injury to, a person (not being an employee employed at that place of work).

6(2) Notice of such an accident is required to be given by the person in control of the place of work concerned as soon as practicable (but not later than 7 days) after it occurs. (emphasis added)

13 The prosecution was not laid until 8 May 2000, that is, on the final day within the two year statutory time limit set under s49 of the Act for the laying of any charge under the Occupational Health and Safety Act, 1983. The Inspector of the WorkCover Authority, Mr Daniel Beavon called to give evidence, was not the named prosecutor. Eighteen months after the accident he was required to investigate the incident when the Notice of Accident form was given to him. He tendered his factual investigation of the incident dated 21 December 1999. During his investigation he conducted a number of interviews with workers on the site. In accordance with WorkCover procedures the witnesses were asked a number of questions and both the questions and answers were recorded. These statements were then signed and were tendered in the prosecutor's case.

14 The Inspector spoke, on 2 March 2000, to Mr Leigh Mitchell, the injured worker. He was asked (question 6): Q. Who employed you on 08-05-98? A. R J Fletcher & Co. He was also asked (questions 7 & 8): Q. What is your position with R J Fletcher & Co? A. Level 2 permanent senior labourer. Q. On what date did you commence employment with R J Fletcher & Co? A. Around April or May 1995. The injured worker had identified another employer than the named defendant as his employer at the date of the accident. Mr Andrew Van-Roosmalen was also interviewed on 2 March 2000. He identified himself as a maintenance fitter. He was asked (question 6): Q. Who employed you on 08-05-98? A. R J Fletcher & Co.

15 Therefore, after the first two interviews, the investigator had been told the employer was R.J. Fletcher & Co, not the named defendant.

16 Five days later on 13 March 2000, Mr Neale Thompson was interviewed. He identified himself as a leading hand of the lidding section of the plant at the time of the accident. He was asked (question 6): Q. Who employed you on 08-05-98? A. Fletcher International Exports Pty Limited.

Mr Mark Miller was also interviewed on 13 March 2000 and identified himself as a supervisor in the lidding and load out section at the time of the accident. He was asked (question 6): Q. Who employed you on 08-05-98? A. Fletcher International Exports Pty Limited. Mr Paul Munro too was interviewed on 13 March 2000. He identified himself as a boner. He was asked (question 6): Q. Who employed you on 08-05-98? A. R J Fletcher & Co 17 Therefore by 13 March 2000, the investigator had interviewed five workers, three of whom had identified R J Fletcher & Co as their employer and the other two identified the named defendant as the employer.

18 Mr David McKay was then interviewed on 28 March 2000. Mr McKay identified himself as a manager of Fletcher International Exports Pty Limited. He gave the investigator a letter of authority to speak on behalf of the named defendant dated 20 March 2000. He was asked (question 6): Q. Who employed you on 8-05-98? A. R J Fletcher & Company. Since that time the company has consolidated to become Fletcher International Exports Pty Limited. He was then asked (questions 12 and 13): Q. I am now going to ask you some additional questions about the accident to Leigh Mitchell at Fletcher International Exports Pty Limited on 08-05-98. Do you understand? A. Yes. Q. Are Fletcher International Exports Pty Limited in control of the blast freezer and all activities that are undertaken in this area? A. Yes, correct.

Relevantly, three months into the investigation, Mr McKay had given to the WorkCover Authority investigator in his answer to question 6, the information there had been a company change and the name of the company which employed him on the day of the accident was R J Fletcher & Co.

19 Four of the six persons interviewed identified another corporate identity as the employer, namely R J Fletcher & Co, rather than the named defendant. Three of these witnesses were required for cross examination. When cross examined, Mr Mitchell the injured worker, identified a document as looking like his Group Certificate for the year July 1997 to June 1998. He identified the named employer on the Group Certificate as R J Fletcher and Co. He identified the signature at the bottom of the document as that of Mr Matt Bow who, he conceded, was the financial officer of R J Fletcher & Co at the time of the accident. The Group Certificate on its face identifies the name of the employer as R J Fletcher and Co. Mr Mitchell confirmed his statement in the interview that R J Fletcher and Co was his employer at the date of his accident.

20 Mr Thompson was called and cross examined. He had stated he had been employed by the named defendant. He identified his Group Certificate. When shown that certificate he conceded he must have been "mistaken" as to the identity of his employer on the date of the accident as contained in his statement.

21 Mr Miller was also called and shown his Group Certificate. He conceded he must have been mistaken as to the identity of his employer in his statement to the WorkCover Authority investigation.

22 Mr Munro and Mr Van-Roosmalen were not called but it is noted they identified in their statements the name of their employer at the time of the accident was R J Fletcher & Co, not the named defendant.

23 The prosecutor tendered into evidence some business name searches. The business name searches reveal on 4 May 2000 R J Fletcher & Co carried on business at Lot 1 Yarrandale Road, Dubbo NSW 2830 as a sheep and lamb abattoir processor. Another document revealed it continued to operate the same business on 16 June 2000.

24 Another document revealed Fletcher International Exports Pty Limited, the defendant, from June 1994 also operated from Lot 1 Yarrandale Road, Dubbo NSW 2830. The nature of the named defendant's business is not revealed.

25 The prosecutor also tendered a bundle of documents which related to an Occupational Health and Safety Committee's activity. One of the documents, which appears to be a record of a meeting of the Committee, was typed on to the letterhead of the named defendant. However, two of the workers named at the meeting, Mr McKay and Mr Munro, conceded their employer at the time of the accident was not the defendant. Although their names appear under a letterhead of Fletcher International Exports Pty Limited, evidence reveals at the date of the accident they were employed by R J Fletcher & Co. The Occupational Health and Safety Committee meeting occurred on 13 May 1998 five days after the accident on and the accident was referred to as the "Incident on Friday . . .". They also discussed appropriate "policy and procedure", the continuance of training and it was noted Mr Blake was to be the responsible person.

26 Having tendered all documentation and after hearing the cross examination of its witnesses, the prosecutor then made an application for an adjournment of the case. The purpose of that adjournment, as stated by the prosecutor, was to further research the issue of "employer". The prosecutor argued that he was entitled to the adjournment as he had been taken by surprise in relation to the ground for the not guilty plea, namely, the issue of "employer". The application was opposed by the defendant.

27 The prosecutor relied on an authority of Catherine Anne Wasow v R (18 ACrim 348) arguing the adjournment application should be granted as the case before this court stands on an entirely different footing from the usual law to be applied when a Prosecutor seeks to re-open a case. The prosecutor submitted it was taken by surprise by the defence raised by the defendant and it was an "oversight" not to have obtained the requisite evidence. The prosecutor submitted it had not closed its case and was only seeking an adjournment at large. In Wasow, Street CJ says (at 350.4): . . . the prosecution could ordinarily expect to be granted leave to reopen to supplement a deficiency that may have arisen through oversight. The bringing of criminal charges involves the prosecution on behalf of the public and in the protection of the public interest of breaches of the public law. There can be little said in principle by way of justification for permitting accused persons to evade due and proper processes of criminal law by some rule which would preclude the Crown reopening to remedy an oversight after the formal words "The Crown Case is closed" have been pronounced. If the Crown had sought to tender this evidence before formally closing its case and before the legal argument advanced by an appellant, it would, as of right, have been entitled to do so. The circumstance that the defect was disclosed in the course of legal submissions on behalf of the appellant falls far short of establishing that it was on its face unfair to the point of being unjust for the learned trial judge to grant leave to reopen to recall this supplementary evidence. (emphasis added)

28 The court cannot be persuaded the prosecutor could be taken by surprise by the submission that it had to prove an essential element of the offence, namely, employer. The defendant had entered a "not guilty" plea some months before. The issue was alive in the prosecutor's own evidence given the content of the statements it tendered in evidence.

29 The application for an adjournment at large was rejected. The court finds the prosecutor has an obligation to prove each essential element of the offence and cannot claim a lack of such proof could be categorised as a mere "oversight" by it.

30 The defendant then, for the purpose of a submission as to no prime facie case and without objection, procedurally tendered the documents which had been put to the witnesses in cross examination which had been "marked for identification" namely the Group Certificates identified by some of the witnesses. The documents appeared as photocopies and the tender was not completed. The court then adjourned for the day.

31 On the next morning of the hearing, the above tender was completed. The prosecutor then made an application to re-open his case to tender three documents. Two of the documents were identified as WorkCover documents and one document was identified as obtained overnight from an insurance company. Two of the documents purported to relate to the named defendant and the other to the related company. In support of the application the prosecution again pleaded they had been "surprised" by the defence case and therefore needed to rely on further evidence to prove the element of the offence related to employer. This application was opposed by the defendant. The defendant asserted the prosecutor had closed its case and it had entered into its submission.

32 Much of the legal authority guiding the court's consideration as to this application to re-open after the close of the prosecution's case is directed to cases where the defendant has entered into evidence and then the Crown seeks to re-open. The circumstances here before the court were the Prosecutor had closed its case and the defendant had moved to establish the grounds for its application by the tender of documents for the consideration of its No Case to Answer submission.

33 Some general legal principles apply to such a consideration. The court holds a discretionary power to allow such an application but, as was said in Shaw v The Queen (1952) 85 CLR 365 by Dixon, McTiernan, Webb and Kitto JJ (at 380): . . . the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence. and further (also at 380): . . . generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen. Again, it may be pointed out even an unexpected occasion may be of such a nature that it would have been covered, had the Crown case been fully and strictly proved.

34 In the matter of Lawrence v The Queen 38 ALR 1, Gibbs CJ, Mason, Aickin, Wilson and Brennan JJ heard an appeal re an application of the Prosecutor to re-open. In that matter it was acknowledged the principles relating to the re-opening of a Prosecutor's case were well established in Shaw. Gibbs CJ noted the principle in Shaw applied whether the Prosecutor sought to introduce evidence during the course of the defendant's case or after its close. Brennan J reasoned (at 23) the Crown should reasonably have foreseen the importance of the evidence and: . . . with due diligence could have been obtained and tendered during the presentation of the Crown case. The rule against splitting the Crown case "is not merely a technical rule, but an important "rule of fairness" (per Gibbs CJ, Murphy and Aiken JJ in Killick v R (1981) 37 ALR 407).

35 The court also keeps in mind in its consideration the obiter comment of Fullagar J (at 383) in Shaw: . . . the aim of legal proceedings, including criminal proceedings, is supposed to be to elicit the truth so far as human imperfection permits.

36 In the circumstances before the court, the prosecutor had clear evidence by March 2000 from the statements of its own witnesses that the issue of employer was open. It held four statements gathered by the Inspector that indicated the employer was another identity at the time of the accident. This was before the charges were laid in May 2000. Further the prosecutor held a statement by a manager of the named defendant which should have warned the investigator there had been an identity change in the employer. The date of the change was never ascertained by the Inspector.

37 The court finds the Prosecutor should reasonably have foreseen the defence raised. The Prosecutor had prior opportunity to obtain the evidence it sought to tender on its application to re-open before trial. Importantly, as to the evidence it sought to tender, two of the documents were always available to it and held in the custody of the WorkCover Authority, the prosecutor in the case.

38 The court does not find the circumstances before it can be categorised as "exceptional". This is not a case where the type of evidence it wished to tender only came within the knowledge of the prosecutor after the closing of its case. With due diligence the evidence could have been obtained and tendered during the presentation of the Crown case. The prosecution relies on an authority of Wasow which refers to evidence that can be categorised as a prosecutor's "oversight". I find the evidence does not fall into that category.

39 Further when the defence counsel, at the start of the hearing, raised its defence the court asked the prosecutor if he wished an adjournment in the circumstances. That proposition was rejected by the Prosecutor. It was only after the Prosecutor's witnesses were cross examined and a copy of their Group Certificates were shown to the witnesses and the witnesses confirmed the identity of their employer at the date of the accident that the first application was brought by the prosecutor. The prosecutor chose to delay any application until he assessed the evidence of the defendant.

40 The court rejects the application of the prosecutor to re-open its case. The No Case to Answer Submission 41 The defendant, at the close of the prosecutor's case, submitted there was no case to answer as the prosecutor had not established, to the requisite onus, a prima facie case against the named defendant. It is fundamental to a charge under s 15(1) of the Act that the defendant be an "employer" as pleaded. This was conceded by the prosecutor.

42 The prosecutor submits there is sufficient evidence to prove the defendant was an employer at the time of the accident. The prosecutor relies on the fact the defendant submitted an accident report identifying itself as the injured workers' employer. The prosecutor relies on the employees' statements, notwithstanding that evidence has been cut down in cross examination. The prosecutor further relies upon the documentation of the activities of an Occupational Health and Safety Committee at the site of the accident some five days after the accident under the auspices of the named defendant to prove employer. He submits such documentation proves the named defendant was an employer on the site and the mention of this accident, contained within this Committee's report, is sufficient to prove employer. He relies on inferences that can be cast from this evidence.

43 There are obligations on an employer to report an accident to the WorkCover Authority. There are also obligations on an occupier of a site to so report. However, the obligation extends beyond reporting to the WorkCover Authority. The Authority then has an obligation to investigate, collect evidence and make the prosecutorial decision as to whether there is sufficient evidence to prosecute. It is at this stage that this case has failed.

44 The general principles to be applied to the court's consideration as to whether the prosecutor has presented a prima facie case have been enunciated in WorkCover Authority of New South Wales v P Ward Civil Engineering Pty Limited (IRC3884-3586 of 1997, unreported decision of Marks J, 30 April 1998) and WorkCover Authority (Insp Mauger) v SWR Constructors Pty Ltd [2000] NSWIRComm115.

45 In Ward Civil Engineering, Marks J summarised the law at (5); see also May v O'Sullivan (1955) 92 CLR 564, Chamberlain v The Queen (No. 2) (1983-1984) 153 CLR 521 and Wentworth v Rogers (1984) 2 NSWLR 422. In effect: (1) The Court must take the prosecution case as its highest and in doing so disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution.

(2) The Court does not take into account the probative value of the evidence, the weight to be afforded to that evidence or the credibility of the witnesses who gave it.

(3) The Court may take into account the effect of the evidence and the inferences to be drawn from the evidence.

(4) The Court may take into account the fact that the evidence and the inferences to be drawn from it must be capable of establishing a prima facie proof of each ingredient of the offence.

Later his Honour said (at 26): In order to succeed even on a prima facie basis it is necessary that the evidence or inferences to be drawn from the evidence must be capable of establishing a prima facie case beyond reasonable doubt. Where a judge sitting alone is faced with evidence which is of a tenuous character because it is inconsistent with other evidence then the judge is entitled to find that the prosecution has not made out a prima facie case. ( R & R (1989) 18 NSWLR 74). 46 In SWR Constructors Pty Ltd a further analysis of the law guiding the "No Case to Answer" consideration was made [at 62]: There has been much legal reasoning on the question. It was held in May v Sullivan (1955) 92 CLR 654 Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ (at 658): . . . the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted.

In Zanetti v Hill (1962) 108 CLR 433 Kitto J said (at 442): . . . whether . . . there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, . . .

And in R v R (1989) 18 NSWLR 74 the court said (at 77): It is clear that a trial judge has the power and the duty to direct an acquittal if at the end of the Crown case there is simply no evidence from which it could be concluded that the accused has committed the crime with which he is charged.

The court in R v R also warned (at 85): It is one thing to recognise in Courts of Criminal Appeal a power to review a jury's determination of fact. It is another thing altogether to permit a trial judge to pre-empt such a determination. 47 This summons was filed on 17 July 2000. It was mentioned on 9 October 2000 before the Registrar and a plea of "not guilty" was entered. The defendant company did not give any notice to the WorkCover Authority as to the basis of its plea, namely, Fletcher International Exports Pty Ltd was not the employer under the Act. It has no obligation to so do.

48 As to the principles to be applied to determine if there is an employer/employee relationship (and the nature of that relationship) there has been much legal reasoning. In Knowles v The Anglican Church Property Trust Diocese of Bathurst (1999) 89 IR 47 Wright J, President recently gave consideration and analysis to the many authorities in both Australia and England directing themselves to the issue of employer/employee relationships. In Building Workers Industrial Union of Australia v Odco Pty Ltd (1991) 29 FCR 104 the Full Court of the Federal Court conducted the same exercise, as did the High Court in Stevens v Brodribb Sawmilling Company Pty Ltd (1986) 160 CLR 16. A court must carefully assess the evidence and there are various indicia to be considered and tests to apply including "the control test" to determine if there is employment. In essence there must be an intention between the parties to create a legal relationship, the terms of which are enforceable, an offer by one party and an acceptance by the other; and valuable consideration for work (see also Swift Placements Pty Ltd v WorkCover Authority of New South Wales (Insp May) [2000] NSWIRComm9 (published 3 March 2000); Dalgety Farmers Limited t/as Grazcos v Bruce (1995) 12 NSW CCR 36 at 47-48); Denham v Midland Employers Mutual Assurance Limited [1955] 2 QB 437 at 447). 49 The prosecutor led no evidence as to the hiring of any worker or as to the consideration paid to those individuals by the defendant or any other individuals for work. The prosecutor led no evidence which could provide any indicia of a contract for service between the defendant as an employer and an employee. The defendant produced and relied upon Group Certificates as indicia of another employer. The prosecutor led no evidence of any control exerted over the alleged employees save it chooses to rely on inferences from one document where a person was nominated to speak on behalf of the defendant or from another document which indicated that five days later there was activity by an Occupational Health and Safety Committee which activity was later recorded under the defendant's letterhead. The prosecutor actually led evidence from the injured employee that he was employed by another identity.

50 The court finds mention of the accident and the report of a Committee's activities under letterhead of the defendant are not persuasive evidence as to the issue of employer. The court cannot be persuaded the Occupational Health and Safety documents prove any employment by the defendant. They purport to say on 13 May 1998, Mr McKay and Mr Munro, amongst others, were members of an Occupational Health and Safety Committee whose activities are recorded in documents, by hand or typewritten, only one of which is under the letterhead of the named defendant. There is evidence these two workers named at the meeting were at the time of the accident employed by another identity, namely, R J Fletcher & Co. The memorandum as to the meeting was clearly typed up after the meeting. It is written in the past tense. It does not persuade the court the named defendant is an employer. The prosecutor also relies on Mr McKay's answers on 13 May 2000 that the defendant had control of the premises. These answers were in the present tense and must be read in the context of the admission of Mr McKay as to a change of ownership. 51 In the circumstances I do not believe that Mr Blake, the OH&S Co-ordinator of Fletcher International Exports Pty Limited, was in a position to correctly inform the WorkCover Authority as to who was the employer at the date of the accident. Clearly from Mr McKay's words there had been "a company consolidation". The date of this consolidation has not been revealed. However, with the four answers given by Messrs McKay, Mitchell, Munro and Van Roosmalen to the question as to the identity of their employer the prosecution should have immediately been on notice of an issue as to the identity of the employer as alleged in the OHS Report of Injury.

52 I find the defendant has no case to answer to the charges brought under s15(1).

53 The question to be considered by the court at the close of the prosecution's case is whether, on the evidence, the named defendant could lawfully be found to be an employer either of the named person or persons generally on 8 May 1998 at the site Lot 1 Yarrandale Road, Dubbo. The question is whether "employer", on the evidence, could be established or could be inferred. The prosecutor must establish its case prima facie. The prosecution carries the onus.

54 The court has considered the evidence and the inferences to be cast from the witnesses' statements as well as their oral evidence, the documents tendered and the whole of the relationship as has been revealed but it is not satisfied such evidence could be capable of establishing prima facie that this defendant was an employer as required under s 15(1) of the Act on 8 May 1998 as particularised.

55 The prosecutor in addresses put an alternative proposition, namely, if the court found no prima facie case had been established under s 15(1) as to employer in relation to the five charges before it then the prosecutor relies on s15(4) of the Act and invites an alternative finding by the court of a guilty verdict from the evidence as it stands against the defendant under s16(1) of the Act.

56 Relevantly, the sections of the Act on which the prosecution relies for this unusual submission are as follows: 15(4) If in proceedings against a person for an offence against this section the Court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section.

And: 16(1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 57 In its terms the provision s15(4) requires three considerations by the court: (i) the court must be satisfied that there was no contravention of s15(1);

(ii) the court must be satisfied that the act or omission concerned constituted a contravention of s16(1);

(iii) the court then may determine to convict the person of any offence against that section.

58 The essential elements of the offence created under s16(1) which it is necessary for the prosecution to establish beyond reasonable doubt are relevantly (see Inspector Page v Woolworths Limited & Anor (unreported decision of Peterson J, No CT1044 and 1047 of 1993, 9 September 1994 at 9): 1. the defendant is an employer; 2. there were persons not employees exposed to risk to their health or safety; 3. the risk arose from the conduct of the defendant's undertaking; and 4. the exposure to risk was at the defendant's place of work .

59 The risk referred to must be the risk on the date of 8 May 1998 as particularised in the summons under s15 of the Act. Because of the admissions of the defendant as to the particulars of the accident provided in the summons it would be open to the court to find that persons not employees were exposed to risk to their health or safety on that date. One element of the offence could be found proven.

60 However, the prosecutor also has to prove the defendant, Fletcher International Exports Pty Limited, was an employer on that site on 8 May 1998 and the risk arose from the conduct of its undertaking at its place of work.

61 As to employer it may be inferred from the evidence that sometime after the accident the defendant did take over control of this work site and the site became the defendant's place of work. Mr McKay says so. The fact is at some time the activities of an Occupational Health and Safety Committee is acknowledged under the company's letterhead. The evidence revealed some of the employees were aware that another employer became involved in their employment. What is absolutely unclear is when the change took place. The Group Certificates suggest it was after the end of the 1997/1998 financial year. From this evidence, it may be inferred that at some stage the named defendant became an employer.

62 Even if one accepts by inference this defendant is an employer at large, there is not sufficient evidence that at the date of the "risk" as particularised, namely, 8 May 1998, this was a "place of work" for the defendant company or that the risk arose from the conduct of the defendant's "undertaking" on that date. The evidence is clearly to the contrary, namely, that at the date of the risk, 8 May 1998, Lot 1 Yarrandale Road, Dubbo was the place of work of R J Fletcher & Co and it was R J Fletcher & Co who was still operating the abattoir processor as its undertaking.

63 On any reading of the evidence, taking the case presented by the prosecutor at its highest and accepting any inference which could be cast from the evidence to favour the prosecutor's case, there is still not sufficient evidence to satisfy the essential elements of an offence under s16(1).

64 A similar submission as to the application of s15(4) was put by the prosecution in the matter of WorkCover Authority of New South Wales (Inspector Lacey) v Donato Tummillo [1998] NSWIRComm50 (unreported 13 February 1998) where Cahill V-P considered a summons issued against the wrong defendant. In that matter, as in the one before the court, the prosecutor in the matter was out of time to issue any further summons or orders. His Honour advanced other reasoning for the dismissal of the charge and held as follows (at 4.8): I find the prosecution's proposal in these matters entirely unmeritorious. If adopted, it would result in a miscarriage of justice. It would mean that the prosecution would be advantaged by reason of its own grave error in bringing the proceedings against the wrong defendant. It would make a mockery of the requirements of s49 of the Act that proceedings for an alleged offence are to be instituted within a period of two years. It is clear that the flaw in the prosecutions . . . was because they specified the wrong defendant as having committed breaches of s15(1), not because the intended defendant was specified but the wrong charges (under s15(1) instead of under s16(1)) were inadvertently alleged.

That follows because it is obvious that the prosecution, after considering all of the material available to it as a result of the WorkCover investigations over a period of almost two years since the accident occurred, made a conscious decision to proceed under s15(1) against the employer . . . In doing so, the wrong company was mistakenly specified. But there were no proceedings then instituted for breaches of s16(1) of the Act against either company. . . . The conclusion is inescapable that the prosecution had reached a conscious decision not to proceed against either company alleging a breach of that section.

Section 15(4) cannot operate to save these proceedings. It is patently clear that the circumstances of the present case . . . are such as to make its application inappropriate or impermissible.

65 While the court has found a lack of evidence to prove essential elements of an offence under s16(1) the court further adopts the reasoning of Cahill V-P in Tummillo as to both the advantages sought by the prosecutor under s 16(1) of the Act in this application to avoid the limitation period and the inappropriateness of the application. Given the state of the evidence and the stage of the proceedings when this application has been brought, namely, where the prosecutor has closed his case and where the defendant has made a preliminary submission as to no case to answer but has not been given a chance to call evidence in its defence and was given no notice of a possible application under s15(4), the court does not accept that s15(4) can operate to save these proceedings. Such an application I find is either inappropriate or even impermissible.

66 The prosecutor made a further submission as to the effect of s15(4) which it submits is an enabling provision and does not grant a discretion to not proceed to convict, over and above the statutory discretion in s10 of the Crimes (Sentencing Procedure) Act 1999, if the evidence is such that the onus under s16(1) prosecution is met. Before the statutory reform, the prosecution submits, there was no equivalent power at common law to find an offence proved but to not then proceed to a conviction (see Kenny on Crime 14d, 1934, at 451).

67 The prosecution in effect submits if the court found the offence proven under s16(1) it must convict as there is no discretion provided to the court through the words of the Act under s15(4) that the court "may" convict the person. The prosecutor relied upon the decision of Wright J, President in WorkCover Authority of NSW (Insp Dubois) v Concrete Constructions (1999) 98 IR 362 not the decision of Bauer J in WorkCover Authority of NSW v CSR Limited t/as CSR Wood Panels (unreported, No CT1176 of 1994, 10 August 1995 at 24-25).

68 However, neither of the judgments relied upon by the prosecutor cast any light upon the issue at hand. Both decisions merely contain references to the existence of s15(4) of the Act without any reference to its operation or evident purpose. As to whether there is a discretion to convict, the defendant submits in the circumstances the court cannot be mandated to convict as it submits the application is an unfair or inappropriate use of the section as invoked. A putative defendant could on the prosecutor's argument, the defendant submits, at this stage of the proceedings, namely, the close of the prosecutor's case, make out a defence to a prosecution under s15 of the Act but the court, without notice and without affording the defendant a right to be heard as to its defence would be statutorily mandated to convict under s16 of the Act. Such a proposition the defendant submits needs only to be stated to be rejected.

69 In the matter before the court there is no need to determine whether the use of the word "may" in s15(4) empowers the court with a discretion as to entering a conviction to the charge under s16(1). The court has found the evidence not sufficient to establish guilt, prime facie, under the charges laid within s15(1) of the Act. As to the submission under s15(4) of the Act the court finds the evidence does not reveal a contravention of s16(1) of the Act and rejects the application of the prosecutor to enter a verdict against the defendant.

70 The five charges brought in matter Nos IRC 2012, 2013, 2014, 2015, 2016 of 2000 shall be dismissed.

71 The proceedings will stand adjourned to be re-listed upon application by either party as to the matter of costs.

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