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.