Inspector Reynolds v Ocean Parade Pty Ltd and Others [2006] NSWIRComm 400 | Case summary

Inspector Reynolds v Ocean Parade Pty Ltd and Others [2006] NSWIRComm 400 | Case summary | Zoe

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Further Particulars of the Offence 1. The defendant had an undertaking to construct a fourteen (14) storey apartment block at the site ('the building'). 2. The defendant employed Marlaine Nourry. 3. On 28 February 2004 the building had reached 14 levels. Access to the building was provided by a combination of a builders elevator, stairs and external scaffolding. 4. Prior to 28 February 2004 a two (2) metre high metal fencing had been erected on the northern and western boundaries of the site. These boundaries were street frontages. There were gates fitted to the fencing which could be locked with chains and padlocks. 5. On the southern boundary of the site was a block of residential units known as the Atlantis Apartments. 6. On 28 February 2004 the boundary between the site and the Altantis Apartments consisted primarily of a timber pailing fence, a section of which had fallen over or had been pushed over, thereby providing easy pedestrian access between the two premises. 7. On level 14 of the building there was a balcony which had a circular open penetration in the floor of approximately 2 metres in diameter ('open penetration'). Below this level was a tiled floor on level 13 which was approximately 2.5 metres below level 14. 8. Prior to 28 February 2004 the open penetration had been covered with a sheet of wire mesh which was secured to the floor however, on 28 February 2004 the wire mesh had been removed to allow other work to be performed and had not been replaced. 9. On 28 February 2004 there were two employees of a sub-contractor, Goldar Projects, installing Gyprock on level 6 of the building. 10. On 28 February 2004 at approximately 4.00pm the injured person, Shane Patman, Shane Labbett and Daniel Rendall gained access to the site via the boundary with the site and the Atlantis Apartments. They then made their way to the 14th floor of the building via the builders elevator and stairs. There was no representative or employee of the defendant on site at the time. 11. At approximately 4.30pm the injured person was walking backwards towards the open penetration when he fell a distance of approximately 2.5 metres through the open penetration landing on the tiled floor of the level below. 12. As a result of the incident the injured person sustained serious injuries including a fracture to his left shoulder and right arm, fracture to his nose, fracture and tendon damage to a finger and the loss of four teeth 13. Neither the injured person, Shane Patman, Shane Labbett nor Daniel Rendall were authorised to be at the site on 28 February 2004. 14. A general risk of injury to non-employees arose from the lack of a secure perimeter at the site and lack of a secured cover over the open penetration. 15. A specific and manifested risk of injury to the injured person arose on 28 February 2004 when the injured person gained access to the site and fell through the open penetration. 16. As a result of the failures of the defendant the injured person, Shane Patman, Shane Labbett and Daniel Rendall were exposed to risks of serious injuries. Matter Number IRC 6334 of 2005 The defendant, being a director and person concerned in the management of Ocean Parade Pty Ltd [ACN 054 749 245] (company), a corporation which was duly incorporated with its registered office at 300A Marsden Road, Carlingford, in the State of New South Wales, which company contravened section 8(2) of the Occupational Health & Safety Act 2000 (Act), in that on 28 February 2004, at 9 Ozone Street, The Entrance in the State of New South Wales (site), the company, being an employer, who had an undertaking to construct a fourteen storey apartment block known as the 'Mariner Apartments' at the site which was its place of work (undertaking), failed to ensure that people (other than the employees of the employer), including Kyle Ralphs ('injured person'), Shane Patman, Shane Labbett and Daniel Rendall, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work by reason that: 1. the company failed to ensure that the site was adequately secured against entry to the site by non-authorised persons; and 2. there was a risk of persons falling approximately 2.5 metres through an open penetration on level 14 of the building under construction at the site as the open penetration was not securely covered or protected so as to prevent persons falling through. AND The defendant is deemed to have contravened the same provision by operation of section 26(1) of the Occupational Health and Safety Act, 2000. Further Particulars of the Offence 1. The company had an undertaking to construct a fourteen (14) storey apartment block at the site (building). 2. The company employed Marlaine Nourry. 3. The defendant was a director of the company and was concerned in the management of the company and in a position to influence the conduct of the company in relation to its contravention of the Act. 4. On 28 February 2004 the building had reached 14 levels. Access to the building was provided by a combination of a builders elevator, stairs and external scaffolding. 5. Prior to 28 February 2004 a two (2) metre high metal fencing had been erected on the northern and western boundaries of the site. These boundaries were street frontages. There were gates fitted to the fencing which could be locked with chains and padlocks. 6. On the southern boundary of the site was a block of residential units known as the Atlantis Apartments. 7. On 28 February 2004 the boundary between the site and the Altantis Apartments consisted primarily of a timber pailing fence, a section of which had fallen over or had been pushed over, thereby providing easy pedestrian access between the two premises. 8. On level 14 of the building there was a balcony which had a circular open penetration in the floor of approximately 2 metres in diameter ('open penetration'). Below this level was a tiled floor on level 13 which was approximately 2.5 metres below level 14. 9. Prior to 28 February 2004 the open penetration had been covered with a sheet of wire mesh which was secured to the floor however, on 28 February 2004 the wire mesh had been removed to allow other work to be performed and had not been replaced. 10. On 28 February 2004 there were two employees of a sub-contractor, Goldar Projects, installing Gyprock on level 6 of the building. 11. On 28 February 2004 at approximately 4.00pm the injured person, Shane Patman, Shane Labbett and Daniel Randle gained access to the site via the boundary with the site and the Atlantis Apartments. They then made their way to the 14th floor of the building via the builders elevator and stairs. There was no representative or employee of the company on site at the time. 12. At approximately 4.30pm the injured person was walking backwards towards the open penetration when he fell a distance of approximately 2.5 metres through the open penetration landing on the tiled floor of the level below. 13. As a result of the incident the injured person sustained serious injuries including a fracture to his left shoulder and right arm, fracture to his nose, fracture and tendon damage to a finger and the loss of four teeth 14. Neither the injured person, Shane Patman, Shane Labbett nor Daniel Rendall were authorised to be at the site on 28 February 2004. 15. A general risk of injury to non-employees arose from the lack of a secure perimeter at the site and lack of a secured cover over the open penetration. 16. A specific and manifested risk of injury to the injured person arose on 28 February 2004 when the injured person gained access to the site and fell through the open penetration. 17. As a result of the failures of the company the injured person, Shane Patman, Shane Labbett and Daniel Rendall were exposed to risks of serious injuries. Matter Number IRC 6335 of 2005 The defendant, being a director and person concerned in the management of Ocean Parade Pty Ltd [ACN 054 749 245] (company), a corporation which was duly incorporated with its registered office at 300A Marsden Road, Carlingford, in the State of New South Wales, which company contravened section 8(2) of the Occupational Health & Safety Act 2000 (Act), in that on 28 February 2004, at 9 Ozone Street, The Entrance in the State of New South Wales (site), the company, being an employer, who had an undertaking to construct a fourteen storey apartment block known as the 'Mariner Apartments' at the site which was its place of work (undertaking), failed to ensure that people (other than the employees of the employer), including Kyle Ralphs ('injured person'), Shane Patman, Shane Labbett and Daniel Rendall, were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they were at the employer's place of work by reason that: 1. the company failed to ensure that the site was adequately secured against entry to the site by non-authorised persons; and 2. there was a risk of persons falling approximately 2.5 metres through an open penetration on level 14 of the building under construction at the site as the open penetration was not securely covered or protected so as to prevent persons falling through. AND

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The defendant is deemed to have contravened the same provision by operation of section 26(1) of the Occupational Health and Safety Act, 2000. Further Particulars of the Offence 1. The company had an undertaking to construct a fourteen (14) storey apartment block at the site (building). 2. The company employed Marlaine Nourry. 3. The defendant was a director of the company and was concerned in the management of the company and in a position to influence the conduct of the company in relation to its contravention of the Act. 4. On 28 February 2004 the building had reached 14 levels. Access to the building was provided by a combination of a builders elevator, stairs and external scaffolding. 5. Prior to 28 February 2004 a two (2) metre high metal fencing had been erected on the northern and western boundaries of the site. These boundaries were street frontages. There were gates fitted to the fencing which could be locked with chains and padlocks. 6. On the southern boundary of the site was a block of residential units known as the Atlantis Apartments. 7. On 28 February 2004 the boundary between the site and the Altantis Apartments consisted primarily of a timber pailing fence, a section of which had fallen over or had been pushed over, thereby providing easy pedestrian access between the two premises. 8. On level 14 of the building there was a balcony which had a circular open penetration in the floor of approximately 2 metres in diameter ('open penetration'). Below this level was a tiled floor on level 13 which was approximately 2.5 metres below level 14. 9. Prior to 28 February 2004 the open penetration had been covered with a sheet of wire mesh which was secured to the floor however, on 28 February 2004 the wire mesh had been removed to allow other work to be performed and had not been replaced. 10. On 28 February 2004 there were two employees of a sub-contractor, Goldar Projects, installing Gyprock on level 6 of the building. 11. On 28 February 2004 at approximately 4.00pm the injured person, Shane Patman, Shane Labbett and Daniel Rendall gained access to the site via the boundary with the site and the Atlantis Apartments. They then made their way to the 14th floor of the building via the builders elevator and stairs. There was no representative or employee of the company on site at the time. 12. At approximately 4.30pm the injured person was walking backwards towards the open penetration when he fell a distance of approximately 2.5 metres through the open penetration landing on the tiled floor of the level below. 13. As a result of the incident the injured person sustained serious injuries including a fracture to his left shoulder and right arm, fracture to his nose, fracture and tendon damage to a finger and the loss of four teeth. 14. Neither the injured person, Shane Patman, Shane Labbett nor Daniel Rendall were authorised to be at the site on 28 February 2004. 15. A general risk of injury to non-employees arose from the lack of a secure perimeter at the site and lack of a secured cover over the open penetration. 16. A specific and manifested risk of injury to the injured person arose on 28 February 2004 when the injured person gained access to the site and fell through the open penetration. 17. As a result of the failures of the company the injured person, Shane Patman, Shane Labbett and Daniel Rendall were exposed to risks of serious injuries. 3 In the prosecution case, evidence was called from Senior Constable Timothy Adams; Inspector David Vern Chamings; Inspector Wayne Reynolds; Shane Labbett; Kyle Ralphs; Daniel Rendall and Gregory Johnson, solicitor. Mr Ron Sayhoun also gave evidence and the parties tendered a number of documents. 4 The evidence was that on Saturday, 28 February 2004, four boys entered the building site. They went into an unlocked 14 storey building, where some workmen were present, who spoke to the boys, but who did not direct them to leave. Neither of the individual defendants were present on site at the time. The boys looked around the building, eventually travelling to the rooftop level in an elevator, where there was a circular, 2 metre hole in the floor, above a balcony on the 13th floor below. Kyle Ralphs fell some 2.5 metres through the hole, to the floor below, sustaining serious injuries. 5 The building was surrounded by a fence constructed of various materials. The building was not at lock up stage and had an operational lift. There were issues between the parties as to how and when the fence through which the boys entered the site was knocked over; what the boys were doing before Kyle fell; how he came to fall; whether or not the hole through which he fell was covered, or whether the boys had removed the covering. The evidence also went to matters such as whether access to the site was available other than through the point at which the boys entered; where the boys entered the building and gained access to the lift and whether access to the lift at ground floor had been precluded. Application under Section 67 of the Evidence Act 1995

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65 Exception: criminal proceedings if maker not available (1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact. (2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation was: (a) made under a duty to make that representation or to make representations of that kind, or (b) made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or (c) made in circumstances that make it highly probable that the representation is reliable, or (d) against the interests of the person who made it at the time it was made. Note . Section 67 imposes notice requirements relating to this subsection. (3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the defendant in the proceeding to which this section is being applied: (a) cross-examined the person who made the representation about it, or (b) had a reasonable opportunity to cross-examine the person who made the representation about it. Note . Section 67 imposes notice requirements relating to this subsection. (4) If there is more than one defendant in the criminal proceeding, evidence of a previous representation that: (a) is given in an Australian or overseas proceeding, and (b) is admitted into evidence in the criminal proceeding because of subsection (3), cannot be used against a defendant who did not cross-examine, and did not have a reasonable opportunity to cross-examine, the person about the representation. (5) For the purposes of subsections (3) and (4), a defendant is taken to have had a reasonable opportunity to cross-examine a person if the defendant was not present at a time when the cross-examination of a person might have been conducted but: (a) could reasonably have been present at that time, and (b) if present could have cross-examined the person. (6) Evidence of the making of a representation to which subsection (3) applies may be adduced by producing a transcript, or a recording, of the representation that is authenticated by: (a) the person to whom, or the court or other body to which, the representation was made, or (b) if applicable, the registrar or other proper officer of the court or other body to which the representation was made, or (c) the person or body responsible for producing the transcript or recording. (7) Without limiting subsection (2) (d), a representation is taken for the purposes of that subsection to be against the interests of the person who made it if it tends: (a) to damage the person's reputation, or (b) to show that the person has committed an offence for which the person has not been convicted, or (c) to show that the person is liable in an action for damages. (8) The hearsay rule does not apply to: (a) evidence of a previous representation adduced by a defendant if the evidence is given by a person who saw, heard or otherwise perceived the representation being made, or (b) a document tendered as evidence by a defendant so far as it contains a previous representation, or another representation to which it is reasonably necessary to refer in order to understand the representation. Note . Section 67 imposes notice requirements relating to this subsection. (9) If evidence of a previous representation about a matter has been adduced by a defendant and has been admitted, the hearsay rule does not apply to evidence of another representation about the matter that: (a) is adduced by another party, and (b) is given by a person who saw, heard or otherwise perceived the other representation being made. 67 Notice to be given (1) Sections 63 (2), 64 (2) and 65 (2), (3) and (8) do not apply to evidence adduced by a party unless that party has given reasonable notice in writing to each other party of the party's intention to adduce the evidence. (2) Notices given under subsection (1) are to be given in accordance with any regulations or rules of court made for the purposes of this section. (3) The notice must state: (a) the particular provisions of this Division on which the party intends to rely in arguing that the hearsay rule does not apply to the evidence, and (b) if section 64 (2) is such a provision - the grounds, specified in that provision, on which the party intends to rely. (4) Despite subsection (1), if notice has not been given, the court may, on the application of a party, direct that one or more of those subsections is to apply despite the party's failure to give notice. (5) The direction: (a) is subject to such conditions (if any) as the court thinks fit, and (b) in particular, may provide that, in relation to specified evidence, the subsection or subsections concerned apply with such modifications as the court specifies. 192 Leave, permission or direction may be given on terms (1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit. (2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account: (a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing, and (b) the extent to which to do so would be unfair to a party or to a witness, and (c) the importance of the evidence in relation to which the leave, permission or direction is sought, and (d) the nature of the proceeding, and (e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence. 8 The evidence was that the incident here in question occurred on 28 February 2004. Shane Patman made his statement to the police in March 2004. The statement came into the prosecutor's possession in November 2005. The proceedings were commenced in December 2005. The hearing was fixed in May 2006 to commence on 13 November. In August 2006, process servers were instructed to serve a summons to give evidence on Shane Patman. No evidence was called from the process servers as to the enquiries which they made. In a letter dated 10 November, those enquiries were described by Mr Greg Johnson of Phillips Fox, the prosecutor's solicitors, as having involved 'a variety of searches including searches of the white pages database, and attempts to telephone Shane Patman on his last known telephone number'. On 14 August, the process servers reported that Mr Patman could not be located. 9 On Mr Johnson's evidence, on 31 October 2006, enquiries were made of the mothers of two of the other boys, as to whether they had contact details for Shane Patman and his family. They did not, but the prosecutor was told that Shane Patman had moved to Sydney with his family. Despite this, it was not until 6 November, that the statement was served on the defendants and not until 10 November, that the defendants were served with the s 67 notice. The trial was due to commence on 13 November. That date was vacated at the parties' request. The trial commenced on 14 November. 10 In those circumstances the prosecutor properly conceded that reasonable notice of the application under s 67 had not been given to the defendants. No explanation could be advanced for that failure, or the failure to serve the statement on which the prosecutor wished to rely until 6 November 2006, given that the prosecution had the statement in its possession from November 2005. Why the s 67 notice was not given within the time prescribed by the Regulations, or even on 6 November when the statement was served, was also not explained. 11 It was in those circumstances that I came to conclude that justice could not permit the direction sought under s 67 to be given. The application was made in defended criminal proceedings. Amongst the matters in issue was how the boys came to have access to this site and what they did while on the site. Shane Patman was one of the four boys who could throw light on those matters. As was conceded for the prosecutor, it was apparent that the reliability of the evidence of the other boys was in issue and that in those circumstances, careful consideration needed to be given to the application, given that the statement sought to be tendered had been made by the fourth boy who entered the site. 12 In those circumstances, to not only deprive the defendants of the opportunity to cross examine Shane Patman, but also of the opportunity themselves to make enquiries as to his whereabouts, so that he could be called to give evidence in the proceedings, was not a course which could be taken lightly. In Tsang Chi Ming v Uvanna Pty Ltd (t/a North west Immigration Services (1996) 140 ALR 273 at 282, Hill J described the scheme of the Evidence Act in this way:

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The scheme of the Evidence Act is to require notice to be given if the maker of the representation is not to give direct evidence. That notice, under s 67, has to be " reasonable ". The theory presumably is to ensure that if one party does not propose to call the maker of the representation the other party at least may have the chance to do so. However, the Court is given power to direct that either or both of subss 63(2) and 64(2) apply, despite the failure to give notice. No criteria are laid down by the Evidence Act upon which the Court is to proceed. However, and without attempting to in any way define appropriate criteria exclusively, matters relevant to the Court in exercising the discretion, which would need to be exercised judicially, would include the prejudice to the parties by dispensing with the requirement to give notice; as well as, for example, in a case involving s 64, matters of expense and delay which might point in favour of permitting the evidence to be adduced. 13 The proceedings there before the Federal Court were civil proceedings, but the analysis applies with equal force to criminal proceedings dealt with in s 65 of the Evidence Act. The function of the discretion given by s 67, is to ensure a fair trial, given the competing considerations which arise. The discretion has to be exercised, having in mind the requirements of s 192 of the Act. 14 What was here at issue was on the one hand, depriving the prosecutor of the opportunity to rely on a statement made by Shane Patman to the police, not long after the incident and, on the other, depriving the defendants of the opportunity to cross examine him on that statement. 15 The prosecution had been in possession of the statement since before the proceedings were commenced in 2005, but had failed to serve it, until shortly before the trial in 2006. 16 When the statement was served on 6 November, it was then known that Shane Patman could not be called to give evidence and still, the defendants were not advised of the difficulty, or served with the s 67 notice. That notice was not served until the business day before the trial was due to commence. The result was that there was a total failure, either to serve the notice in a timely way, or to notify the defendants of the difficulties the prosecutor had encountered in August and later in October, in locating Shane Patman, so that the defendants themselves could take steps to locate him. Nor was an application for an adjournment of the hearing, to permit the defendants to make such enquiries made. 17 Given the evidence led by the prosecutor, it appears that relatively little was done by the process server, to locate Shane Patman. A later enquiry of the mothers of two of the other boys, elicited the information that Shane Patman and his family had moved to Sydney. That information apparently prompted neither further enquiries, nor any timely service of the notice, so that the defendants could make their own enquiries. From that evidence, it followed that there could be no certainty that had the defendant been given an opportunity to locate Shane Patman, that he would not have been found. 18 Shane Patman's evidence was not crucial to the prosecution case, given the evidence already called from the other three boys. It was however, plainly important to the defendant's case, as counsel for the prosecutor properly conceded, given that the defendants put in issue the reliability of their evidence. 19 In the circumstances, given the issues here calling for determination in the proceedings and the complete failure to give notice of the proposed reliance on Shane Patman's statement in any timely way, had the result that justice could not permit the discretion given by s 67 to be exercised in the prosecution's favour. 20 It was in those circumstances that I concluded that justice could not be served in this case, by the granting of the prosecutor's application. It was for those reasons that the application was refused. Tender of a business record 21 In their case, the defendants later sought to tender as a business record, an extract from the police computerised COPS system relating to this incident. The record was first created by Senior Constable Adams. It contained various entries of steps taken by the police, from the time when the Senior Constable was first approached by the boys on 28 February, to seek his assistance. The purpose of the tender was to put in evidence statements made to the police by Shane Patman. 22 The defendants relied on s 69 of the Evidence Act, which provides:

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23 The defendants' argument was that the COPS record contained representations made by police officers, which fell within ss 69(2)(a) and representations made by Shane Patman, which fell into ss 69(2)(b). The exception provided by ss 69(3)(b) was submitted not to arise, because the representations in question had not been made at a time when there was any investigation on foot. All that the police had done to that point, was to attend an accident site. In further submissions the tender of the record was confined to a point in time during the course of 28 February, when the WorkCover Authority had been notified of the accident. 24 The prosecutor's objection to the tender rested firstly on an argument that not all of the COPS record was a business record and secondly, that if it was, it was caught by the exception in ss 69(3)(b). 25 I refused to receive the document, taking the view that it was a business record, but that it fell within the exception in ss 69(3)(b). These are the reasons for that conclusion. 26 Senior Constable Adams gave evidence that he began making the COPS record on 28 February. He attended the site that afternoon, after being approached on the street by the boys. The police station was next door to the building site and the Senior Constable had just arrived there in his car. He accompanied the boys on the site and remained on site while the ambulance officers who arrived attended to Kyle. He also arranged for an emergency rescue team to respond, to help get Kyle off the site. Senior Constable Adams took photographs of the site which were tendered. It was the police who notified the Work Cover Authority of the accident. 27 There was no question that the COPS system contained Police Service records of what Senior Constable Adams and other police officers did and observed in relation to this incident. It also contained information provided to them by others, including Shane Patman. 28 In considering whether or not the COPS document sought to be tendered was a business record, attention had to be paid to the definition of 'business' in the Dictionary to the Act, which includes: 1 References to businesses (1) A reference in this Act to a business includes a reference to the following: (a) a profession, calling, occupation, trade or undertaking, (b) an activity engaged in or carried on by the Crown in any of its capacities, (c) an activity engaged in or carried on by the government of a foreign country, (d) an activity engaged in or carried on by a person or body holding office or exercising power under or because of the Commonwealth Constitution, an Australian law or a law of a foreign country, being an activity engaged in or carried on in the performance of the functions of the office or in the exercise of the power (otherwise than in a private capacity), (e) the proceedings of an Australian Parliament, a House of an Australian Parliament, a committee of such a House or a committee of an Australian Parliament, (f) the proceedings of a legislature of a foreign country, including a House or committee (however described) of such a legislature. (2) A reference in this Act to a business also includes a reference to: (a) a business that is not engaged in or carried on for profit, or (b) a business engaged in or carried on outside Australia. 29 It follows from paragraphs (b) and (d) of this provision that the Police Service carries on a business for the purposes of the Evidence Act. On the evidence, the document sought to be tendered formed a part of the Police Service's computerised COPS system, which contained 'records belonging to or kept by' the Police Service (s 69(1)(a)(i)). The document also contained representations 'made or recorded in the document in the course of, or for the purposes of, the business' of the Police Service (s 69(1)(b)). I was accordingly satisfied that the document was a business record. 30 There was no question that the document contained representations made by Senior Constable Adams, about asserted facts of which he 'had or might reasonably be supposed to have had personal knowledge' (s 69(2)(a)). It also contained representations made by Senior Constable Adams 'on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact'. In one case such information was provided by Shane Patman, that being the part of the document which the defendants sought to tender. 31 The submission advanced for the prosecutor was that such parts of the record could not be accepted as being business records because:

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34 I was satisfied that the submission could not be accepted. 35 It would be most surprising if the Police Service did not keep records of what police officers learned in the course of their duties, as well as records of what others told them, about the matters they attended to, or were called upon to investigate. This lies, after all, at the heart of the work which the Police Service undertakes. The scheme of the Evidence Act is to ensure that such records comprise the business records of the Police Service. They are directly caught by the words of s 69(1). If the records satisfy the provisions of s 69(2), the hearsay rule does not apply to the document. 36 If the approach urged by the prosecutor were correct, it would appear to make the provisions of ss 69(3)(b) largely otiose. The purpose of s 69(2) is to provide for an exception to the hearsay rule, in relation to business records of the kind dealt with in s 69(1). That exception is not available, in the circumstances dealt with in ss 69(3), which includes the situation where a representation recorded in a business record was made 'in connection with an investigation relating or leading to a criminal proceeding' (ss 69(3)(b)). It would plainly very often be the case that representations recorded by the Police Service in its business records, are recorded in such a situation. If such records were not business records at all, they would not fall within the s 69(3) exception and thus s 69(3)(b) would have but little work to do, in the context of the Police Service. That would be a most curious result. 37 The effect of s 69(3)(b) is that the hearsay rule applies to the representations contained in the business record, when it is sought to be tendered in any proceedings. That is not a surprising provision, given the scheme of the Act and the provisions otherwise made in the Act in relation to out of court statements. In this case, for example, s 65, was available to the defendants, had they given the necessary notices in relation to the statements made by Shane Patman, as recorded in the COPS System. That section, of course, arose for consideration in this case, in respect of a separate statement made to the police by Shane Patman, not that recorded in the COPS system. Had he been called by the prosecutor, the defendants could have put what was contained in the COPS system to him. The defendants could also themselves have called Shane Patman, but given notice that he could not be found was not given by the prosecutor within a timeframe which permitted that course, this no doubt, gave rise to the attempt to introduce the COPS statement as a business record. 38 On the evidence in this case, I was satisfied that the COPS record sought to be tendered contained representations made 'in connection with an investigation relating or leading to a criminal proceeding.' On his evidence, even while waiting for the arrival of the rescue team required to remove Kyle from the building site, Senior Constable Adams commenced taking photographs. He was plainly conscious from the outset, not only that he was responding to the boys request for assistance, but that given the circumstances, an investigation was required. So far as the Police Service was concerned, that investigation involved various matters being recorded on the COPS system, including matters which Senior Constable had himself observed on 28 February, as well as information provided to him by others, including Shane Patman. Statements were later taken from various people, including Shane Patman. Eventually, Senior Constable Adams was called to give evidence in these proceedings. The photographs which he had taken on 28 February, even before Kyle had been removed from the site, were then tendered. 39 That Senior Constable Adams responded as he did to what he was confronted with on 28 February, is hardly surprising. Workplace accidents are notorious for leading to all sorts of later proceedings - in some cases coronial proceedings, in others prosecutions such as this and in some cases, other kinds of criminal proceedings. It is commonplace for the Police Service to be involved in the investigations of such accidents, together with WorkCover Authority Inspectors. Police officers are frequently called to give evidence in proceedings such as this. In this case, it was the Police Service which first became aware that a serious accident had occurred on the building site, when Senior Constable Adams was approached by the boys. It was the Police Service which notified the WorkCover Authority of the accident. Plainly the boys ought not to have been on the site. How the accident had occurred most obviously required investigation and on his evidence, that is what Senior Constable Adams commenced doing on 28 February, even while waiting for the rescue services to arrive. 40 In my view it would be artificial in the extreme to conclude on the evidence that any investigation by the Police Service had commenced only after the WorkCover Authority was notified. Such a conclusion would be directly contrary to Senior Constable Adams' evidence, that he began taking photographs while waiting at the building site for the rescue service to attend to Kyle. Senior Constable Adams was not cross examined as to the point at which he viewed the Police Service's investigations to have commenced. The proper inference from the evidence was that it began as soon as the boys approached Senior Constable Adams, who responded to their approach, by going onto the site to establish what had occurred. Plainly, he also acted to ensure Kyle's safety and that of the other boys. That he was also then investigating what had occurred, cannot be doubted. Nor could it be doubted that what he later recorded in the COPS system were representations made in the course of that investigation. These proceedings were later commenced and material gathered by the Police Service in its investigations, was tendered at the hearing. 41 It followed that the conclusion that the COPS record in question contained representations which were not made 'in connection with an investigation relating or leading to a criminal proceeding', was simply not available and so the tender of the business record had to be refused, given the provisions of s 69(3).

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45 Through the enactment of this safety legislation and its predecessors, which has persisted now since 1983, society has decided that those who engage in work of this kind must protect even trespassers who seek to enter their workplaces from injury. That, undoubtedly, explains the charge laid; how it was pursued and the way in which it was resisted in the evidentiary case - by a heavy concentration on the way in which the perimeter fence of this building site was secured. 46 The failures alleged against the defendants included that they had failed to adequately secure the site against entry by non-authorised persons and that the hole on the 14th floor was not securely covered, allowing someone to fall to the floor below. 47 It was the prosecution case that the evidence showed how the boys had gained access to the site and that Mr Ron Sayhoun had told the Inspector that the section of fence in question had been known to be down that day, and at other times in earlier weeks. The Inspector had not been challenged on that evidence, although Mr Ron Sayhoun had denied having had such a conversation. The reliability of Mr Ron Sayhoun's evidence was challenged in a number of respects, it being submitted that it would not be accepted as having been truthful and that it would generally be rejected as unreliable. It was also submitted that the evidence of the three boys would be accepted, as to having found the hole on the 14th floor of the building uncovered. 48 The defendants submitted that while it was accepted that the offences created by the Act were absolute ones, still the charges had to be considered in the particular circumstances revealed on the evidence, in order to determine whether the offences charged were proven. In this case, that required consideration to be given to the fact that whether or not the hole was uncovered on 28 February, access to it was precluded by a secure perimeter fence and that there was no work expected to be undertaken in the vicinity of the hole on the 14th floor of the building that day. It was submitted that Mr Ron Sayhoun's evidence would be accepted and that the charges had not been proven on the evidence, to the requisite standard. 49 Given the way in which the parties advanced their respective cases, it is necessary to closely analyse the evidence, to determine what in fact was established to the requisite standard and whether or not the evidence, so considered, permitted the conclusion that the offences charged had been proven by the prosecution.

[47]

It is of course notorious that evidence of young children should be treated with a degree caution. In this case, in my submission, the evidence of the three boys who gave evidence should be treated with a high degree of caution. It provides an uncertain and unsatisfactory foundation upon which to erect the case the prosecution has sought to make. 52 The submission was developed in relation to particular aspects of the evidence, but it is convenient immediately to observe that I am unable to accept, in any general way, that the boys' evidence was unreliable. I am well satisfied that given the approach which they each adopted to their evidence, the evidence which they gave and other evidence to which I will refer, that this would not be a proper approach to adopt to a consideration of their evidence. In order to consider which evidence should be accepted and which rejected in this case, what is required is a careful examination of all of the evidence, both that given by the boys and that of other witnesses, as well as what appears in documents. Particular attention must be given to the evidence of Mr Ron Sayhoun, whose evidence was also submitted to be generally unreliable, albeit that was a submission advanced by the prosecution, for different reasons. 53 The defendants accepted that the boys had entered the property through the collapsed section of the fence at the rear of the site, which was not visible from the street. It follows that it must be accepted that this aspect of their evidence was truthfully given. It was not challenged. On the evidence, there was another possible point of entry, the open gate on Dennison Street, through which the police officer who responded to the boys' request for assistance, Senior Constable Adams, entered the site. Mr Ron Sayhoun's evidence was that he had locked the gates earlier that day before leaving the site. Unless that evidence was given untruthfully, this meant that someone else had opened that gate after Mr Ron Sayhoun left. Only he had a key to the padlock. I mention the state of the gates at this point, to indicate that there was another possible point of entry, but neither the defendants nor the prosecutor suggested that this was how the boys had entered the site. 54 The fallen section of fence was towards the rear of the site, where the fence separated the site from another apartment building, the Atlantis Apartments. The building site was located on Denning and Ozone Streets, in a block skirted by those streets, as well as Short Street, Bayview Avenue and Ocean Parade. The boys gained access to the fence from Short Street, along the side of the adjoining Atlantis Apartments, where a line of palm trees was planted in a passageway, with red gravel on the ground. The fallen fence could not be seen from the street. On the boys' evidence, they had been walking around the area during the day and were aware of the building site. They were plainly curious to see the site. They often walked around there and they were bored. They agreed in cross examination that they regarded it to be an adventure, to venture onto the site. They were also conscious that they should not have been there. There were warning signs on the fence. 55 The evidence of Senior Constable Adams, was that he gained access to the site through an open gateway in the fence on Denning Street, after being approached by the boys. The site was fenced off with temporary cyclone fencing at that frontage. There were two gates in the fence on that street. The Senior Constable was not certain through which gate he entered with the two boys who approached him on the street, to tell him that Kyle had been hurt. 56 The evidence of Mr Ron Sayhoun was that when he left the site earlier that day, there were two workers present, doing gyprocking work. He locked them in the site, locking the front gate with a padlock, to which only he had a key. This was necessary because, on the evidence, the building was not at lockup stage; there was various material and equipment stored on the site and while a door on the ground level giving access to the lift had been locked, the lift had to be left operating, so that it could be used by the workmen remaining on site after Mr Ron Sayhoun left. After he left the site, it was unsupervised. 57 Mr Ron Sayhoun said he arranged for the workers to call him when they wished to leave and that if he did not return in time, they proposed to leave the site by using a ladder, to scale a two metre high fence. When he returned to the site after the incident, Mr Ron Sayhoun found that the gate he had locked was open. By then Kyle had already been removed from the site. Later that day, when together with Inspector Chamings, they found a padlock lying broken on the ground. Inspector Chamings corroborated this evidence. 58 It follows from the evidence that one of the gates to the site on Denning Street was open on the afternoon of 28 February, permitting Senior Constable Adams to enter the site when the boys approached him. While Mr Ron Sayhoun's evidence was that he had locked the gate when he left, Senior Constable Adams' evidence was that he entered through an open gate. That evidence was not called into question. 59 There are at least three explanations for how the gate came to be open. Mr Ron Sayhoun could plainly either have been mistaken; he could have been untruthful in his evidence, or someone could have opened the gate after Mr Ron Sayhoun left and before Senior Constable Adams entered. Mr Ron Sayhoun's evidence was that only he had a key; he left the site to visit a friend at another building site in Gosford, some 40 minutes away. Once notified of the accident, it took about 40 minutes before he could leave Gosford, because some workmen had borrowed his car to go and get food and another 40 minutes then to drive back to The Entrance. 60 In that context, Mr Ron Sayhoun's explanation that he had left the workers locked within the site, to call him when they wished to leave, when he would come back 'immediately', seems improbable, as does his evidence that it was their suggestion, that if he did not return in time to let them out, that they would use a ladder to scale a two metre fence, in order to leave the site. That this could have been done safely by workers carrying whatever they needed to take with them from the site, also seems unlikely, but is not what the charge is concerned with. If, as Mr Ron Sayhoun's evidence suggested, the padlock to the Denning Street gate had been cut, there was obviously a possibility that it was cut by the workmen, who needed to leave the site at some point. They were still on the site, when the incident happened. The defendants also suggested that ambulance officers, who had responded to the emergency call made by the boys, might have cut the lock before the boys approached Senior Constable Adams. 61 Whatever be the explanation for how the gate came to be unlocked, on the evidence there was no doubt that the gate was unlocked, permitting Senior Constable Adams to gain access to the site, after the boys approached him in Denning Street. It follows that on 28 February 2004, the site was not secure after Mr Ron Sayhoun departed. The boys were able to gain entry where the fence had fallen at the back of the site and Senior Constable Adams was able to gain entry through the open gate on Denning Street. 62 I make these observations, given the defendants' submission that 'the critical subject of inquiry in this case is the fence. The hole on the 14th floor and what guarded it give rise to questions of a secondary significance. A hole may be guarded by a secure fence as by a guard that covers the hole.' 63 On 28 February, the fence was not secure. The particulars of the charge were, however, concerned with the section of the fence which had fallen and through which the boys had gained entry. How the section of fence at the rear of the site came to have fallen was in issue. It was the prosecution case that Mr Ron Sayhoun had admitted to knowing that the fence was down that day. It was the defendants' case that to his knowledge, the fence had been standing earlier that day. 64 Mr Ron Sayhoun's evidence was that he had erected the fence himself before work commenced on the site; the section which had fallen was a part of an old paling fence, which had stood without difficulty since before work commenced at the site; he did a perimeter inspection of the fence every 2 - 3 weeks; that the last inspection before 28 February had been undertaken some three weeks previously; that the fence had been standing on that occasion; that there had been other problems with fencing on the site from time to time, when high winds knocked down the cyclone fencing on Denning and Ozone Streets, but never with this section of fence. 65 Mr Ron Sayhoun also gave evidence that he could see the section of fence in question from the balcony of his apartment, where he lived nearby; that he went into the vicinity of the fence daily, to visit the ablution block and that on other occasions he also went there, because building material and other equipment was stored in the vicinity of the fence. On the morning of 28 February, he had conducted a material audit on site, which had also involved going to the vicinity of the fence. While he had not specifically inspected the condition of the fence that day, he had not noticed that it was down. On his evidence, it was likely that he would have noticed the fence that day, if it had fallen over. 66 On Mr Ron Sayhoun's evidence, he first noticed the state of the fence when he was on the roof with Inspector Chamings, after 7pm on 28 February, when he approached the edge of the roof after the Inspector had taken a photo. When Mr Ron Sayhoun had returned to the site earlier in the day, after being notified of the incident, he first spoke to an ambulance officer and then went to the police station, before looking around the site, where he found the gate unlocked and the hole uncovered. After covering the hole he had to leave the site again to buy two padlocks, one for the front gate and one for a door to a wooden frame built around the door of the lift on the ground floor, in order to be able to secure the site and the lift. His evidence was that both the padlock with which he had earlier locked the door to the lift frame and that which he had locked the gate with, were missing. He returned before the Inspector arrived, but did not conduct a perimeter inspection of the fence at any time before the Inspector arrived and had not noticed the fallen section of fence, before he went to the roof with the Inspector. They then went to the fence together, where the Inspector took more photographs. 67 Inspector Chamings was at the site to make an inspection, to take photographs and to attend to any immediate safety issues. His evidence was that it was when he went to the roof with Mr Ron Sayhoun that he first saw that a section of the fence was down. He took photos of the fence from both the roof of the building and later at ground level, about a metre from the fence. Inspector Chamings also gave evidence that while they were on the roof together, he had a conversation with Mr Ron Sayhoun about the fence he had observed and that Mr Ron Sayhoun told him that:

[50]

A: When I went there I saw part of the fence not there and falling off, we put it back into position and got extra mesh that they put on the scaffolding and put it on the fence and bolt it. 71 The defendants criticised the Inspector's inspection of the fence, submitting that he had done nothing to determine how it came to have been pushed over. That approach was, of course, entirely consistent with the Inspector having an understanding from Mr Ron Sayhoun, that the fence had been known to have been down that day and on earlier days. Given the dilapidated state of the fence and the evidence as to how it had been secured, that information would have hardly been surprising. 72 Mr Ron Sayhoun denied having any conversation at all with the Inspector about the fence. That there was no discussion at all between the Inspector and Mr Ron Sayhoun, about whether the fence had fallen over, or whether it had been necessary to put any fencing back up, or even the state of the section of the fence which had fallen over, as was Mr Ron Sayhoun's evidence, seems rather odd, given the Inspector's purpose in attending the site to ensure safety after what had occurred to one of the boys who had been trespassing earlier that day; the fallen fence having first been seen by both the Inspector and Mr Ron Sayhoun while they were on the roof together; their then leaving the roof and going together to the fence; its obvious condition and the direction which the Inspector then gave, that it be repaired. 73 Mr Ron Sayhoun's denial of any conversation at all about the fence also needs to be considered in the context of the statement which he later made to Inspector Reynolds. Consistently with having earlier made an admission to Inspector Chamings that he knew that the fence was down and with there having been two points at which the boys could have gained entry to the site that day, Inspector Reynolds did not ask Mr Ron Sayhoun about how the boys had gained entry to the site. He did ask about site security:

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80 This theory was not one which Mr Ron Sayhoun advanced. That Mr Ron Sayhoun would not have taken the opportunity to tell Inspector Reynolds that the fence was in place on the day of the accident before he left the site, or that he had a suspicion that it was the boys who had knocked down the fence, would have been strange omissions, given that such information would plainly have been relevant to the investigation being conducted and to the question of whether or not the defendants had committed any offences under the Act, with which they would be charged. Mr Ron Sayhoun was given the opportunity of adding anything he wished to his statement, but he said nothing further. Again, this approach was consistent with him having already conceded to Inspector Chamings, that he knew the fence was down that day. 81 Undoubtedly Mr Ron Sayhoun had no obligation to volunteer information to the Inspector, but only to answer questions. Given that he elected to give evidence in these proceedings, which has been challenged as untruthful, it is necessary to consider the evidence which was given, by way of comparison to what he had said at an earlier point in time, in assessing whether his evidence ought to be accepted. That consideration arises in a context where it seems to me the evidence given by Mr Ron Sayhoun itself needs to be approached with some care. It became apparent at the hearing that Mr Ron Sayhoun was prepared to alter his evidence, when it occurred to him that there was a difficulty with an answer which he had earlier given. 82 This can readily be illustrated by one example - his explanation for how work came to be done near the hole, after the grid which had earlier covered the hole, had been unbolted. A risk assessment had been conducted; it required the grid to be bolted. In his evidence in chief, Mr Ron Sayhoun said that the waterproofing above and below the hole on the 14th floor was done at the same time, the grid over the hole and the scaffolding under it having been removed. He confirmed this in cross examination, but then denied that while working on the roof, the workers must have been working near the unguarded hole. As he conceded, in order to make good that denial, Mr Ron Sayhoun then changed his evidence, as to how the waterproofing work had been done. He then said that the waterproofing was first done on the 14th floor, after the mesh covering the hole had been removed. It was only then that the floor below was waterproofed, after the scaffolding was removed. 83 All of this evidence is relevant to be considered, in assessing the truthfulness of Mr Ron Sayhoun's evidence as to whether or not the fence was standing on 28 February and whether or not he had the disputed conversation with Inspector Chamings. 84 The other evidence as to the state of the fence on 28 February, came from the three boys. They were each conscious that they should not have gone onto the site; that it was dangerous and that it was fenced off, in order to keep them out. They were plainly bored, curious boys, of around 13 years of age. They had been walking around a lot on the day and had noticed the site. Despite understanding they should not have gone onto the site, on their evidence, they did, when the opportunity arose. They had no reason to go through the garden along the side of the Atlantis Apartments. They could not see the fence from the street. When they came to the fence, however, they found it to have fallen over and took the opportunity to enter the site and eventually to make their way to the roof of the building. Each of the boys denied having knocked down the fence, in order to gain that entry. 85 As was submitted for the defendants, these boys obviously felt guilty for what had happened to Kyle. When Kyle was injured, they acted responsibly in getting help and medical attention, although they were obviously conscious that they could have been in trouble, for being on the site. They appeared to me to be trying to give truthful evidence at the hearing, each saying so when they could not remember something and properly accepting some things put to them. Daniel agreed that his memory of what had occurred was better at a time closer to the accident and that the statement which he had made at the time, was more likely to be correct, than the evidence he gave at the trial. 86 The boys had no obvious reason to lie when giving their evidence, although like any witness, their memories of what occurred had been affected by the lapse of time between the events and the hearing. As one might expect, if their evidence was being truthfully given, there were differences in their evidence. There were similarities as well. Again, that is to be expected, if a true account was being sought to be given. 87 It is correct that Shane Labbett remembered that all four boys stayed together, as did Kyle and Daniel. Daniel had made an earlier statement to the police. He readily accepted that if his earlier statement was different to the evidence he had given, it was more likely to have been correct. He also accepted what he had said in that statement, that they had split up at one point, was more likely to have been correct. Shane Labbett and Kyle had not been asked to make such a statement at the time. Their recollections were that they had stayed together. 88 On the evidence of Shane Labbett and Daniel, they had each been reassured by the police after the accident, that they would not be in trouble. Shane Labbett explained that he did not care about getting into trouble at the time, he cared about Kyle. All three boys denied knocking the fence over, insisting that was how they found it. Having considered all of the evidence, I am satisfied that the boys' evidence that they did not knock down the fence should be accepted. That evidence was consistent with the dilapidated, poorly supported fence shown in the photographs. It is unnecessary to detail Mr Ron Sayhoun's evidence as to how the fence had been secured. That evidence departed in, at least, one respect from what could be seen in the photographs - namely, the past which allegedly supported the palings at one end. The boys' evidence was also consistent with what Inspector Chamings said he was later told by Mr Ron Sayhoun - namely, that the fence was down that day. 89 If it was not the boys who knocked down the fence, there were at least three other possibilities. The first, that it was knocked down earlier, at some time since the inspection Mr Ron Sayhoun had conducted three weeks earlier and that he had simply not noticed that a section had fallen over on 28 February. That was not consistent with either Mr Ron Sayhoun's evidence, or that of Inspector Chamings as to what Mr Ron Sayhoun told him and can be excluded. The second possible explanation was that the fence was up on the morning of 28 February and that someone other than the boys had pulled, or pushed it over before the boys arrived. This was not consistent with Inspector Chamings' evidence or that of the boys. The third, that Mr Ron Sayhoun was not truthful in his evidence and he knew that the fence was down that day. 90 Mr Ron Sayhoun told Inspector Reynolds nothing in November 2004, about the fence having been standing, to his knowledge, on the morning of 28 February. That was, undoubtedly, important information to have provided, given the investigation being pursued. Given what Mr John Sayhoun told the Inspector about the incident, it would appear that it had been the subject of discussion between Mr Ron Sayhoun and Mr John Sayhoun. That was entirely to be expected, given their respective positions as directors of the company, their obligations to deal with safety on the site and that Mr Ron Sayhoun was the supervisor of the site. Mr Ron Sayhoun does not appear to have told Mr John Sayhoun that he saw the fence up on 28 February. Had he done so, Mr John Sayhoun would no doubt have said so, when he made his statement to the Inspector, because that information would have supported his theory that it was the boys who had knocked over the fence. 91 Mr Ron Sayhoun had no real explanation for not having provided Inspector Reynolds with information about his knowledge of the state of the fence on 28 February, other than that he sought only to answer the questions asked of him. One good explanation for that omission, of course, was that he knew that he had already told Inspector Chamings on 28 February, that he was aware the fence was down that day and that it had been down previously. Given the evidence as to the state of this old paling fence, that was entirely plausible. It would also explain why Mr Sayhoun locked two workers into the site when he left that day. They would not have had to scale a two metre fence with a ladder, in order to leave the site. If Inspector Chamings' evidence was correct, they could easily have left the site by walking over the fallen fence, as the boys had done earlier that day. On the Inspector's evidence Mr Ron Sayhoun told him that the fence had fallen down several times in previous weeks. Mr Ron Sayhoun denied, however, that there had been any practise of accessing the site through that section of the fence. 92 Inspector Chamings had no reason to lie and I am inclined to accept his evidence. It was submitted, however, for the defendants, that even if there had been such a conversation, which Mr Ron Sayhoun denied, it could not have amounted to an admission, because the conversation could be understood as Mr Ron Sayhoun referring to other parts of the fence which had fallen and which had been repaired, not the section of the fence here in question, because, in its terms, the question was not confined to the fallen part of the fence. I am unable to accept that submission. 93 As the prosecutor submitted, on Mr Ron Sayhoun's evidence other sections of the cyclone fence on the street frontages had been blown over in October, November and December, and had been repaired. This incident occurred on 28 February. There was no suggestion that it was the cyclone fencing which had been knocked over on 28 February, or in the weeks beforehand. Inspector Chamings' recollection of their conversation about the fallen fence which he observed from the roof was: I said to Mr Sayhoun how long had the fence - or asked Mr Sayhoun how long the fence had been down and he said that it had been up and down a few times over the last couple of weeks and that it was down on the day, on that day. 94 I found Inspector Chamings' evidence entirely credible. By way of contrast, I found a number of aspects of Mr Ron Sayhoun's evidence improbable and unconvincing. Given that this issue has to be resolved on the basis of credit, I have concluded that Inspector Chamings' evidence has to be preferred. I do not accept that on 28 February, while they were together on the roof, where the Inspector discussed the fallen section of fence which he observed with Mr Ron Sayhoun, that he did not tell Inspector Chamings that the fence was down that day, as it had been at other times in recent weeks. Given the state of this section of the fence, that would have hardly been surprising. Nor do I accept the construction of the conversation that Mr Ron Sayhoun was referring to other parts of the fence, when making those comments. That was not properly open on all of the evidence. 95 I accept that what Mr Ron Sayhoun told the Inspector was an admission which precludes acceptance of his evidence that the fence was standing earlier that day. 96 It follows that the theory that someone other than the boys knocked the fence down on 28 February, after Mr Ron Sayhoun left the site that day and before the boys gained entry, also cannot be accepted. While it was submitted for the defendants that this was a possibility which could not be excluded on the evidence, I am satisfied that it is a theory not consistent with what Mr Sayhoun himself told the Inspector that day. 97 Given all of these conclusions, it follows that it must be accepted that the prosecution established this aspect of the charge, to the criminal standard.

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The hole on the 14th Floor 98 I turn then to the hole through which Kyle fell. On Mr Ron Sayhoun's evidence, a safety assessment had been conducted. As a result, the hole was covered by a wire mesh grid approximately three metres square, secured by four bolts. The grid had been lifted onto the roof by a crane. There was also a scaffold under the hole. On Mr Ron Sayhoun's first version, the grid and the scaffold were removed while the 13th and 14th floors were waterproofed at the same time. On his second version, the grid was removed when the 14th level floor was waterproofed. Afterwards, scaffolding under the hole was removed, in order to permit the floor of the 13th floor balcony to be waterproofed and then tiled. At that stage, the hole was covered by the grid, held down by four Bessemer blocks, because it was a windy site and they would prevent the grid from flapping. Mr Ron Sayhoun saw the hole so covered on the morning of 28 February, when he went to the roof to inspect the waterproofing for UV deterioration. 99 Mr Ron Sayhoun conceded in cross examination that on 28 February the grid could have been secured by bolts in the side of the hole in the roof. Had that been done, the grid could not have been moved, without the bolts being removed, which would have required the use of a tool. 100 The evidence of all three boys was that when they went to the roof, the hole was uncovered. It was the defendants' case that the boys, or some of them, had uncovered the hole. The boys all denied this, although on the evidence of Daniel Rendall, the boys separated at some point while at the site. On that evidence, it was clear that there was an opportunity for one or two of the boys to have moved the Bessemer blocks and the grid, without the others seeing what they had done. Daniel's evidence was that he and Kyle had stayed together at all times. 101 On Mr Ron Sayhoun's evidence, when he returned to the site on 28 February, he found the grid standing, resting vertically against a wall and he put it back over the hole. Inspector Chamings' photographs showed that the grid was not held down by Bessemer blocks, when he came to the site after the accident. Mr Ron Sayhoun could not explain why he had not put the Bessemer blocks back in place to hold the grid. Given the evidence, it was evident that this was not a safe way to leave the hole. Nor was it consistent with the defendants' risk assessment. 102 Whatever the state of the grid on 28 February when the boys arrived, it was plainly not secured, in a way which would have prevented it being moved by the boys. In so observing, I make it clear that I am not satisfied on the evidence that they moved it. Indeed, it seems to me quite unlikely that a metal grid of this size would have been moved by these young boys into the position Mr Ron Sayhoun says he found it - resting vertically against a wall. Nor was that proposition put to any of the boys. 103 The defendants also relied on a statement made by Daniel Rendall on 19 March 2004, to support a submission that the hole was covered when the boys went to the roof together. Daniel readily agreed in cross examination that his memory of what had occurred was better when he made that statement, than when he gave his evidence. He insisted, nevertheless, that the hole was uncovered when the boys went to the roof. So did the other two boys. They all denied that Daniel stood on the grid covering the hole. 104 In his statement, Daniel had said 'We started walking around and I saw a big hole in the ground that I was standing on'. The cross examination was to this effect:

[96]

I was looking over the edge, I saw a car, police car I think; I walked backwards and my friend Shane, he yelled out as I fell, and I turned around and that's all I remember, everything went white. 112 The defendants also pointed to a hose, going from 14th floor through the hole to the 13th floor below. The defendants' case was that that the boys had been playing on the roof and that Kyle fell through the hole, while he was trying to climb a hose, which was dangling in the hole from the roof to the floor below. The boys each denied this. On their evidence, Kyle fell backwards through the hole, when he began backing away from the edge of the roof, after having seen a police car. He was worried that he had been seen. In cross examination, Kyle denied that he had been climbing and explained that he was worried when he saw the police car because 'I didn't want to get in trouble because I had a plaster on'. 113 The evidence showed that Kyle had his left arm in a cast to the elbow on the day of the incident, having injured it at some earlier time. That he could have been climbing up a hose, to a hole some 2.5m metres above in the roof of the 13th floor, or that he would have attempted to climb down such a hose from the 14th floor, given that injury, seems unlikely, but of course not impossible. Given that the boys were not always together, that one of them other than Kyle had been climbing around the hole or up or down the hose, was also possible. I accept that the note suggests that it was Kyle who was climbing. Each boy including Kyle denied this. 114 On their evidence, both Kyle and Shane Labbett had been looking at the view towards the ocean, from the railing on the roof. Daniel was looking in another direction, towards an oval below, where cricket was being played. On each of the boy's evidence, Kyle noticed a police car driving down Denning Street and became concerned that he had been seen. That was quite plausible, the police station was next door to the building site and there was parking for police cars on the roadside. 115 Kyle backed away from the railing, saying that they should go, Shane Labbett shouted to warn him to be careful of the hole and on Kyle's evidence, he turned as he began falling backwards, trying to grab Shane Labbett, in response to that warning. That description of what occurred fits with the evidence given by both Shane Labbett and Daniel. It also fits with the injuries which Kyle sustained, which included significant injuries to his face. 116 Daniel said in his evidence that he had his back to Kyle, when he heard Kyle say that he had seen a police car and that he did not turn to look at him then, but continued watching the cricket. He also said that he saw Kyle backing towards the hole. He said that he heard Shane Labbett call out to warn Kyle and that he had seen him fall. When cross examined, Daniel insisted that he knew that Kyle had been backing towards the hole. He agreed that he and Kyle had discussed what had happened after the accident. It was suggested that he had not seen Kyle, which he denied. On the evidence, it is quite possible that Daniel's impression that Kyle had been backing towards the hole was formed from the direction he saw Kyle fall, when he turned, having heard Shane Labbett's shout. Kyle's own evidence was that he fell forward. I was entirely satisfied that Daniel was a truthful witness and that he did his best to give truthful evidence as to what he remembered seeing. There was no reason to doubt his evidence. 117 Like various difficulties with Mr Ron Sayhoun's evidence, whether or not the boys were climbing, does not finally need to be resolved. That the way in which the hole was covered permitted them to have done so, was apparent, even on the case advanced by the defendants. 118 What was of relevance to a resolution of the safety of the hole, were the answers which Mr Ron Sayhoun provided to Inspector Reynolds, when interviewed on 4 November 2004. He then told the Inspector that:

[109]

A. I looked down the side and the scaffolding I made a comment to Mr Sayhoun and later on issued a notice in relation to the scaffolding and I noticed there was nothing holding the reinforcing down and I asked Mr Sayhoun about that and he said there were bolts in place but they had been removed - the water proofing area - but I saw no note of bolts and made a note of that at the time. 124 Mr Chamings was cross examined as to whether he had seen any Bessemer blocks. He could not recollect them. Again, given what Inspector Chamings was there to ensure, it seems unlikely that if he had been told about the Bessemer blocks or had noticed them, that he would not have made some note of them, or would not have required them to have been replaced. Indeed, on Mr Ron Sayhoun's evidence, he told the Inspector that it was he who had covered the hole, after he had returned to the site after the accident, but he did not tell the Inspector that the grid and the blocks been covering the hole that morning and that they had been removed from the hole, after he had left the site earlier that day. Nor did he later tell Inspector Reynolds that was what had occurred. 125 It followed from all of the evidence, that I was also unable to accept Mr Ron Sayhoun's evidence about how the hole was covered before the incident. The unavoidable inference from the evidence was that on 28 February the grid was not secured in the way Mr Ron Sayhoun described in his evidence. Consistently with the photographs taken by Inspector Chamings after the incident, at best, the hole was covered by mesh unsecured by any Bessemer blocks. On the boys' evidence, they found that the hole had been left entirely uncovered. Mr Ron Sayhoun later found the three metre square grid stored resting vertically along a wall. Such an approach would have been entirely consistent with the case advanced by the defendants, that the safety of the hole was adequately assured by a secure perimeter fence, given that no work was scheduled to be undertaken in the vicinity of the hole. Consistently with such a view, safety could have permitted the hole to have been entirely uncovered by the grid mesh. 126 Nobody who was on the roof that day could recollect seeing any Bessemer blocks on the roof. Nor did Mr Ron Sayhoun use such blocks to secure the grid with which he covered the hole after the incident and before Mr Chamings came to the site. He had no explanation for his failure to use the blocks at that point, when he was taking steps to ensure safety, after the boys had fallen through the hole. On his evidence, the blocks could not have secured the grid, but were there to stop it being blown away. 127 Even if such blocks had been used, they plainly could not have ensured the safety of the hole. On Mr Ron Sayhoun's evidence, the assessment which had been conducted before the accident had indicated that this required the grid to be bolted down. On 28 February, it was not. On his evidence that could have been done by securing the grid to the side of the hole, after the waterproofing had been put into place. 128 On all of the evidence, I accept the evidence of the boys that the hole was uncovered when they reached the roof. I am unable to accept Mr Ron Sayhoun's evidence that he saw the grid held down by Bessemer blocks earlier that day. Even if it was in that state and it was some of the boys who moved the grid, this aspect of the offence would have been proven. As the charge alleged, thereby 'the open penetration was not securely covered or protected so as to prevent persons falling through.' The defendants had undertaken a risk assessment to deal with that risk and had determined that the grid needed to be secured by bolts. It was not. 129 On all of the evidence I am satisfied that this aspect of the charge was also made out to the requisite standard.

Inspector Reynolds v Ocean Parade Pty Ltd and Others

At a glance

Court

Decision date

Before

Source

Judgment (115 paragraphs)

134 For the reasons given I find that the offences charged have been proven. The matters will now be programmed for sentencing.

Parties

Cases Cited (4)

Cited By (1)