Inspector Ruth Buggy v Lyco Industries Pty Limited

FILE NUMBER(S): IRC 5078 and IRC 5079 of 2004

Occupational Health and Safety - prosecution under section 18(1)(a) and section 18(1)(b) of the Occupational Health and Safety Act 1983 - not guilty plea - fatal injury - defendant the manufacturer of hydraulically powered post driving machine - defendant supplier of plant - whether supply occurred in New South Wales or Victoria - proper construction of the word 'supplies' - supply occurred in New South Wales - both offences made out CATCHWORDS:

Crimes Act 1900 Interpretation Act 1987 Occupational Health and Safety Act 1983 LEGISLATION CITED: Sale of Goods Act 1923 (NSW) Victorian Goods Act 1958

Euphoric Pty Ltd v Ryledar Pty Ltd (2002) 117 IR 1 Forster v Osprey Manufacturing Pty Ltd (Unreported, 29 May 2003) Network Ten Pty Ltd v Channel Nine Pty Ltd and Ors (2004) 205 ALR 1 CASES CITED: R v Delgado (1984) 1 WLR 87 WorkCover Authority of New South Wales Inspector Hopkins v Profab Industries Pty Ltd (1999) 90 IR 119

HEARING DATES: 08/08/2005; 08/09/2005; 08/10/2005

PROSECUTOR: Mr R Reitano of counsel SOLICITORS: WorkCover Authority of New South Wales Legal Group LEGAL REPRESENTATIVES:

DEFENDANT Mr J Phillips SC SOLICITORS: McCulloch & Buggy

• 19 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under s.18(1)(a) of the Occupational Health and Safety Act 1983

Prosecution under s.18(1)(b) of the Occupational Health and Safety Act 1983

1 The defendant, Lyco Industries Pty Limited ('Lyco') was the manufacturer of a hydraulically powered post driving machine. A Mr William Munton purchased one of its machines from a supplier of agricultural equipment, Kentan Pty Limited ('Kentan'). In May 2001, a Mr Caine Hayward, one of Mr Munton's employees, was killed while operating the machine. The defendant pleaded not guilty to two charges brought under s 18 of the Occupational Health and Safety Act 1983 ('the Act').

LYCO INDUSTRIES PTY LIMITED whose registered office is located at 15 Wiltshire Lane, Ballarat in the State of Victoria, from 24 February 1999 to 8 March 1999 at 338 Pacific Highway, Hexham, in the State of New South Wales, did supply to Kentan Pty Limited for use by persons at work plant being a hydraulically powered post driving machine which it failed to ensure was safe and without risks to health when properly used contrary to Section 18(1)(a) of the Occupational Health and Safety Act 1983.The particulars of the charge are:

1. The defendant, at all material times, was a supplier of plant;

2. The defendant, at all material times, supplied a hydraulically powered post driving machine ('the machine") to Kentan Pty Limited for use by persons at work;

3. The machine was not safe and without risks to health when properly used.

4. The machine could be operated whilst a person's limbs or head were below the hammer so that the hammer could come into contact with that person's limbs or head causing fatal injuries. Matter Number IRC 5079 of 2004 LYCO INDUSTRIES PTY LIMITED whose registered office is located at 15 Wiltshire Lane, Ballarat in the State of Victoria, from 24 February 1999 to 8 March 1999 at 338 Pacific Highway, Hexham, in the State of New South Wales, did supply to Kentan Pty Limited for use by persons at work plant being a hydraulically powered post driving machine and fail to provide, or arrange for the provision of, adequate information about the plant to the person to whom it was supplied to ensure its safe use contrary to Section 18(1)(b) of the Occupational Health and Safety Act 1983.The particulars of the charge are:

1. The defendant, at all material times, was a supplier of plant;

2. The defendant, at all material times, supplied a hydraulically powered post driving machine ('the machine") to Kentan Pty Limited for use by persons at work;

3. The defendant, at all material times, failed to provide, or arrange for the provision, to Kentan Pty Limited of adequate information regarding the operation of the machine to ensure the machine's safe use.

4. The machine could be operated whilst a person's limbs or head were below the hammer so that the hammer could come into contact with that person's limbs or head causing fatal injuries. 3 Section 18 of the Act provided:

Designers, manufacturers and suppliers to ensure health and safety as regards plant and substances for use at work (1) A person who designs, manufactures or supplies any plant or substance for use by persons at work must: (a) ensure that the plant or substance is safe and without risks to health when properly used, and (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use. (2) The obligations under this section: (a) apply only if the plant or substance is designed, manufactured or supplied in the course of a trade, business or other undertaking (whether for profit or not), and (b) apply whether or not the plant or substance is exclusively designed, manufactured or supplied for use by persons at work, and (c) extend to the design, manufacture or supply of components for, or accessories to, any plant for use by persons at work, and (d) extend to the supply of the plant or substance by way of sale, transfer, lease or hire and whether as principal or agent, and (e) extend to the supply of the plant or substance to a person for the purpose of supply to others, and (f) do not apply to a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person. (3) In this section, manufacture plant includes assemble, install or erect plant. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

The Evidence 4 In the prosecution case evidence was called from Inspector Ruth Buggy, WorkCover Authority of New South Wales; Detective Senior Constable Glenn Ward, Newcastle Police Station; Detective Senior Constable Peter Rhodes, Raymond Terrace Police Station; Dr Timothy Lyons, Department of Forensic Medicine, Royal Newcastle Hospital; Mr William Munton, Farmer/Salesman; Mr Brian Graham, fitter and previously a director of Kentan Pty Limited; Mr Anthony Martin, TestSafe Australia; Associate Professor John Hilton, consultant in forensic medicine. The defendant called evidence from Mr Gary Lyons, joint managing director of Lyco Industries Pty Limited. Numerous documents were tendered, including photographs and videos. 5 The evidence showed that the defendant manufactured the machine at its premises in Victoria. When it sold the machine to Kentan in 1999, it was delivered by three different carriers to Kentan's premises at Hexham, in New South Wales. The contract contained a term that ownership in the machine did not pass until payment was received from Kentan. 6 Mr Hayward was fatally injured on 23 May 1999, at Mr Munton's property, where he was employed to operate the machine, which was attached to a tractor, in a fence building operation. Mr Hayward was working with Mr Owen Suters, who was driving the tractor. They were both employed as casuals. They were both inexperienced in the work, having first been trained by Mr Munton on a non-paid training day on 15 May and having first performed the work for several hours on 22 May. 7 On 23 May, Mr Munton supervised the work until he left Mr Hayward and Mr Suters for some 15 minutes, to gather various supplies. It was while the two employees were working unsupervised that Mr Hayward was injured. Mr Suters was so affected by what had occurred that he was hospitalised and was unable to provide an account of what had happened that day, until some time later. 8 The account given was that he and Mr Hayward had completed driving in a post, and Mr Hayward had given the OK for Mr Suters to drive to the next post. Mr Suters commenced climbing into the tractor and on looking over his shoulder, saw Mr Hayward on the ground and went to his aid. 9 The opinion of those investigating the accident was that Mr Hayward must have operated the hammer in order to attempt to straighten a post. While doing so, he put his head on the post, reached around the machine's guard and accidentally engaged the lever which released the hammer, resulting in a fatal injury, when the 600lb hammer came into contact with his head. 10 In a report to the coroner, Inspector Buggy raised a number of possible scenarios in which the accident may have occurred. They included that Mr Hayward rested his head on the post and reached around the guard, mistakenly engaging the lever which caused the hammer to fall on his head. In cross examination, she agreed that there were other possible scenarios, including that Mr Hayward was struck by the guard, when Mr Suters had mistakenly engaged a lever in the tractor, which caused the entire three point hammer unit attached to the back of the tractor to fall, striking Mr Hayward on the head and causing his head to hit the post, as he fell to the ground. 11 Dr Lyons prepared an autopsy report. He also favoured the theory that death had been caused by the hammer striking Mr Hayward's head, when he reached around the guard and engaged the control lever. In cross examination he also agreed, however, that another possibility, which could not be excluded, was that Mr Hayward was struck by the falling three point unit, although Dr Lyons preferred his theory, for reasons which he explained. Dr Lyons had given similar evidence in the coronial proceedings which had followed Mr Hayward's death. Dr Hilton took the view that Mr Hayward's injuries were more consistent with having been struck by the falling three point unit, than having been struck by the hammer. He could not, however, exclude the other possibility, which Dr Lyons favoured. 12 There were no eyewitnesses to the accident. Mr Suters was not called to give evidence, the prosecutor having been unable to locate him. It is not possible on the evidence to determine how Mr Hayward's death was caused. There is more than one possibility. As the authorities have made clear, however, it is unnecessary to come to any final conclusion about the cause of an accident when considering a charge such as this. It is the risk to safety in question which must be considered (See WorkCover Authority of New South Wales Inspector Hopkins v Profab Industries Pty Ltd (1999) 90 IR 119). The section 18(1)(a) charge

13 On the evidence, there can be no doubt that the machine was unsafe and the offence charged was made out to the necessary standard. There was an issue as to how the machine supplied to Mr Munton, which was designed to be operated while the guard was in an extended position, came to have the guard wedged, so that it could not be opened. The guard appears to have been bent, to permit it to become wedged. Mr Munton's evidence was that it was in this state when he received it. On the evidence, this was plainly possible. 14 Mr Lyons described the system adopted by the defendant to ensure that the machine left its factory with all necessary parts operational, including the guard. The hinged guard was shipped so as to ensure that it would not be damaged in transit. The instruction manual showed users how the guard was to be extended for operation. Mr Munton's evidence was that he never read the instruction manual. The machine could be operated with the guard wedged. Mr Munton found this safe because, as he explained, it provided two layers of mesh to protect the operator from splinters flying from a post being hammered. 15 The machine was delivered from the defendant's premises in Victoria to Kentan in New South Wales as arranged by the defendant. Mr Graham described Kentan's system of inspection of equipment which it sold. On his evidence, this involved machines being checked by experienced fitters against the instruction manuals supplied by the manufacturer, to ensure they were operational. Ordinarily, when delivered to the customer, the machine's use would have been explained, in the case of this machine, when it was attached to the tractor. This did not occur in this case. Mr Munton was an experienced operator of the machine and the new machine was delivered to him, wrapped in plastic and left for him to attach to his own tractor. On Mr Graham's evidence, the inspection was likely to have identified the wedged guard, but even so, it could have been left to be extended to the operating position, on delivery. This did not occur, because the normal delivery practice was not followed. It is also possible that the guard had become wedged during transportation to Mr Munton's property. This did not come to Kentan's notice, given the departure from its normal delivery practice. The correct operating position did not come to Mr Munton's attention, because he did not read the instruction manual. 16 On the evidence, it is unnecessary to determine how or when the guard came to be wedged. The evidence showed that even as extended in the proper operating position, the machine was unsafe. While in that position, it would protect the machine operator from placing any part of the body under the hammer - deliberately or accidentally. It would not, however, prevent anyone else from doing so. 17 The fencing operation being conducted on Mr Munton's property involved Mr Hayward operating the machine and Mr Suters operating the tractor. The video taken by Inspector Buggy, in which Mr Munton demonstrated the operation of the machine, graphically demonstrated how it was possible for someone other than the operator, to come in contact with the falling hammer. The design of the machine did nothing to preclude this possibility. Photographs and video material tendered in the defendant's case also confirmed this possibility. 18 On the evidence of both Dr Lyons and Dr Hilton, contact with the 600 lb hammer when operated would have catastrophic consequences for any individual. The s18(1)(b) charge

19 On the evidence, there can be no doubt that this offence was also proven to the requisite degree. The instruction manual provided by the defendant contained various information and warnings. So far as the guard was concerned, the information was confusing. At one point, under a prominent "Warning" heading, it warned amongst other things that: s Do NOT operate this machine before reading the INSTRUCTION MANUAL. s This machine is designed for digging post holes and driving fence posts ONLY. (Please contact Lyco Parts and Service if in doubt regarding your application) s NO part of the human body should be placed inside the safety cage, near the auger or under the 'hammer' during operation. s Do NOT wear loose fitting clothes or untied long hair while operating the machine. s Do NOT operate machine unless all safety systems and guards are operational. s If ANY part of the machine is not fully operational please contact Lyco Parts and Service for advice BEFORE operating the machine.

... FAILURE TO COMPLY WITH THESE INSTRUCTIONS MAY RESULT IN DEATH OR SERIOUS INJURY.

20 Under the heading 'Safety Rules, it provided, amongst other things:

DO NOT OPERATE POST DRIVER WITHOUT GUARDS FITTED AND CLOSED.

21 The instructions given for the Guard Attachment provided:

1. Rotate the guard to the 'open' position, as shown in Figure 3 on Page 10.

2. Fit the ¼ " bolt through the hole in the bottom of the guard, as shown in Figure 3 on Page 10.

NOTE: The guard must be positioned correctly before the post driver is operated.

22 A diagram with the guard in the extended position with the words 'open out' followed. The instructions provided clearly directed that the guard be both 'closed' and in the 'open' position as illustrated, when being operated. Given that the guard was hinged, what method of safe operation was being directed was not clear. 23 I am unable to accept Mr Lyons' view that the safety manual, read as a whole, provided adequate information about the machine to the persons to whom it was supplied to ensure its safe use. Undoubtedly, the manual had to be written so that it could be easily understood by users. The instructions and warning given in the manual clearly failed in this respect. 24 In addition, there were no warnings on the machine itself, alerting users to the safety risks posed by the falling hammer. 25 To this must be added the further difficulty that the manual, like the machine, was written with operator safety in mind and did not ensure the safety of others, who might come within proximity of the falling hammer. This obvious possibility was not addressed at all in the manual. Was there an offence committed in New South Wales? 26 It was the defendant's case, however, that there was no jurisdiction in the Court to deal with the offences charged, because there had been no supply of the machine in New South Wales, a crucial element of both offences. 27 Reliance was placed on the provisions of the Victorian Goods Act 1958, which deals in s 39 with the question of delivery. It provides:

(1) Where in pursuance of a contract of sale the seller is authorized or required to send the goods to the buyer, delivery of the goods to a carrier, whether named by the buyer or not, for the purpose of transmission to the buyer is prima facie deemed to be a delivery of the goods to the buyer.

(2) Unless otherwise authorized by the buyer, the seller must make such a contract with the carrier on behalf of the buyer as may be reasonable, having regard to the nature of the goods and the other circumstances of the case. If the seller omit so to do, and the goods are lost or damaged in course of transit, the buyer may decline to treat the delivery to the carrier as a delivery to himself or may hold the seller responsible in damages.

(3) Unless otherwise agreed, where goods are sent by the seller to the buyer by a route involving sea transit under circumstances in which it is usual to insure, the seller must give such notice to the buyer as may enable him to insure them during their sea transit, and if the seller fails to do so the goods shall be deemed to be at his risk during such sea transit.

28 The New South Wales' Sale of Goods Act 1923 makes similar provision in s 35. 'Delivery' is defined in s 3 of the Victorian Act as 'voluntary transfer of possession from one person to another'. 29 It was submitted that while it was alleged that the supply had occurred in Hexham, given the statutory provision made as to the place of delivery, it followed that the machine had been supplied to Kentan in Victoria and that no supply had occurred in this State. It followed that no offence had been committed in New South Wales. The defendant had at no relevant time been in the State. It was Kentan which had supplied the machine to Mr Munton in New South Wales. 30 Reference was made also to the Oxford Dictionary definition of the word 'supply'. Given the purpose of the Act, it was submitted that the word meant the passing of physical control of plant from a supplier to an end user or the supplier before the end user. Transfer of ownership was irrelevant, what was relevant was where control of the goods was transferred. (See R v Delgado (1984) 1 WLR 87). 31 Reference was also made to the provisions of s 10C of the Crimes Act 1900 (NSW), which had the effect extending an offence in certain circumstances. It did not become operative until 31 July 2000. Its predecessor, s 3A, was in different terms, requiring a territorial nexus between one element of the offence and the State. Here, there was no such nexus. 32 The prosecutor's submission was that the evidence showed the supply had taken place at Hexham. It was argued that the word 'supplies' must be understood in its ordinary meaning. Supply does not occur "until such time as the first person has completed the act of providing it to the second person", which occurred, in this case, when the machine either physically came into Kentan's hands, or perhaps later, when it was paid for, given the contractual terms. The observations of Wright J in Forster v Osprey Manufacturing Pty Ltd (Unreported, 29 May 2003) at [28] - [30] were relied upon:

28 It is instructive to examine the provisions of s 18(2) and in particular subsections (c) to (f), which provide that the obligation extends to "the design, manufacture or supply of components for, or accessories to, any plant", the supply "by way of sale, transfer, lease or hire and whether as principal or agent", the "supply ... for the purpose of supply to others" and is expressed not to be applicable to "a person merely because the person supplies the plant or substance in the course of a business of financing the acquisition of the plant or substance by a customer from another person". Each of these items is more consistent with construing the term "supply:" as an individual transaction, rather than as creating some continuing and ongoing relationship between the supplier and the client. This is also consistent with the ordinary English usage of the term "supply" which is defined, for example, in The Macquarie Dictionary (Third Edition, 1997) at p 2127 in the following ways: ... to furnish or provide (something wanting or requisite) ... to make up (a deficiency); ... to satisfy (a need, demand etc) ... to fill (a place, vacancy, etc); ...

See also The Shorter Oxford English Dictionary (Third Edition, 1984 Revision) p 2196. 29 There is nothing in the terms of the section, or in the context in which it appears, which would warrant a different or alternative construction of the word "supply". The section imposes an obligation at the time the relevant "supply" occurs, and consequently, the obligation is complete or completed when the supply occurs. While the reference to supply "by way of sale, transfer, lease or hire" may require a determination, as a matter of fact, as to when the relevant transaction occurs and when, in relation to the transaction, the act or fact of supply or "supplying" occurs (and is complete) those issues do not appear to have any present significance. 30 In the present case, where the circumstances involve the outright sale of the loader (the relevant piece of plant) the "supply" would appear to be concluded, or completed at the time the particular designer, manufacturer or supplier actually supplied the relevant plant. This would usually be at the time of the actual, in the sense of physical, delivery of the plant but could conceivably occur when the title passed, if that occurred subsequent to physical delivery. As was conceded by the prosecutor, it is unnecessary to determine exactly at what point the title in the loader passed to Namoi Cotton as, on any view, where the prosecutor to fail on his construction argument, and leaving aside at this point the warranty issue, the proceedings would be out of time.

33 It should be noted that the defendant argued that the latter view could not be correct, given that it was possible for legal title to pass, without goods ever, in fact, leaving the possession of the seller and coming into the possession of the buyer. 34 The argument advanced by the defendant has certain attractions, but I am satisfied is one which must be rejected. The evidence showed that Kentan, a supplier of agricultural equipment in New South Wales, purchased the machine from the defendant, its Victorian manufacturer. As observed in Euphoric Pty Ltd v Ryledar Pty Ltd (2002) 117 IR 1 at [41] 'An obligation to deliver goods attaches to every such contract, whether expressly dealt with or not.' Delivery is dealt with in the Victorian Goods Act 1958 and its New South Wales counterpart. 35 The proper construction of the word 'supplies', used in s 18(1) must be approached from a consideration of the ordinary meaning of the word, as used in its statutory context, having regard to the purpose of the provision in question. As the High Court recently observed in Network Ten Pty Ltd v Channel Nine Pty Ltd and Ors (2004) 205 ALR 1 at 4:

In Newcastle City Council v GIO General Ltd [(1997) 191 CLR 85 at 112. McHugh J observed: "[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context."

His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said at 408: "It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." [footnotes omitted] 36 Section 33 of the Interpretation Act provides: 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object. 37 In construing s 18(1) the provision made in s 18(2) may not be overlooked. The offence is not only concerned with supply in the context of a sale, but also in the case of transfer, lease and hire. In that context, the difficulty of confining the meaning of 'supplies', as used in the section, by reference to the provision made as to the time of delivery, in statutes concerned with the regulation of contracts for the sale of goods, is immediately apparent. 38 The legislature could have made such provision directly in the Act, but has not done so. To the contrary, it has not even used words such as 'delivers' or 'delivery', but a different word, 'supplies'. In the absence of a deeming provision, which has the effect of making the time of supply the time at which goods are delivered to a carrier, in the case of delivery by carrier, I am satisfied that the ordinary meaning of 'supplies' connotes physical delivery, or the giving of physical possession of the goods to a purchaser, in the case of a sale, or a lessee, in the case of a leasing arrangement, a transferee in the case of a transfer and a hirer, in the case of a hiring arrangement. There is no supply until the goods or substance in question are in the hands of the purchaser, the lessee, the transferee or hirer. 39 If it were otherwise, surprising consequences would follow. Designers, manufacturers and suppliers of plant and substances intended to be used by persons at work in New South Wales, would have no obligations under the section, so long as they ensured that they did not themselves deliver the plant or substance into New South Wales. Engaging a carrier would remove any liability under the Act. This appears to be entirely inconsistent with the statutory intent. 40 On this approach, there can be no doubt that supply here occurred in New South Wales, not Victoria. 41 In any event, it appears to me that even were the view I have reached incorrect, s 3A of the Crimes Act 1900 must be given effect. The section provided:

Territorial application of the criminal law of the State (1) An offence against the law of the State is committed if: (a) all elements necessary to constitute the offence (disregarding territorial considerations) exist, and (b) a territorial nexus exists between the State and at least one element of the offence. (2) A territorial nexus exists between the State and an element of an offence if: (a) the element is or includes an event occurring in the State, or (b) the element is or includes an event that occurs outside the State but while the person alleged to have committed the offence is in the State. (3) The existence of the territorial nexus required by subsection (1) (b) ( the necessary territorial nexus ) is to be presumed and the presumption is conclusive unless rebutted under subsection (4). (4) If a person charged with an offence disputes the existence of the necessary territorial nexus, the court is to proceed with the trial of the offence in the usual way and if at the conclusion of the trial the court, or, in the case of a jury trial, the jury, is satisfied on the balance of probabilities that the necessary territorial nexus does not exist, it must, subject to subsection (5), make or return a finding to that effect and the charge is to be dismissed. (5) If the court, or, in the case of a jury trial, the jury, would, disregarding territorial considerations, find the person not guilty of the offence (but not on the ground of mental illness) the court or jury must make or return a finding of not guilty. (6) The issue of whether the necessary territorial nexus exists must, if raised before the trial, be reserved for consideration at the trial. (7) A power or authority exercisable on reasonable suspicion that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds that the elements necessary to constitute the offence exist (whether or not that person suspects or has any ground to suspect that the necessary territorial nexus with the State exists). (8) This section applies to offences committed before or after the commencement of this section but does not apply to an offence if: (a) the law under which the offence is created makes the place of commission (explicitly or by necessary implication) an element of the offence, or (b) the law under which the offence is created is a law of extraterritorial operation and explicitly or by necessary implication excludes the requirement for a territorial nexus between the State and an element of the offence, or (c) proceedings are pending at the commencement of this section in relation to the offence. (9) This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. (10) In this section: event means any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge or any other state of mind). the State includes: (a) the territorial sea adjacent to the State, and (b) the sea on the landward side of the territorial sea that is not within the limits of the State. (11) If a person charged with a particular offence could be found guilty on that charge of some other offence or offences, that person is, for the purposes of this section, taken to be charged with each offence. (12) To avoid doubt, a reference in this section to a trial (whether or not a jury trial) includes a reference to a special hearing within the meaning of the Mental Health (Criminal Procedure) Act 1990. 42 One element of the offences here charged is that the plant be supplied for a particular purpose, namely for use by persons at work. It was not the defendant's case that the machine was not supplied to be used by persons at work in New South Wales. The argument turned on whether supply had occurred in New South Wales or Victoria. It follows that even if supply had occurred in Victoria, s 3A of the Crimes Act applies in this case, the provisions of s 3A(1) being satisfied. Defence

43 The defendant argued that if the offence were found proven, a defence under s 53(a) of the Act had been made out. The section provides:

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence. 44 The defendant relied upon the evidence that showed that the machine was a new model, which introduced a new system of guarding. The previous system involved the machine's hydraulic hammer being completely encaged, thereby ensuring that neither the operator, or anyone else, could place a body part under the hammer while it was being operated. The defendant had conducted a survey which showed that the vast majority of those who purchased the machine removed the guard, finding it inconvenient. 45 The view taken was that the guard should be altered, so that users would refrain from its removal, thereby improving the safety of its operation. The process leading to the development of the new guard was described. While there must undoubtedly be sympathy for what motivated the defendant to alter the design of the guard, particularly given that other such machines on the market appear to be entirely unguarded, the fact remains that the new design failed to ensure safety. 46 Given the earlier design of the guard, it cannot be concluded that it was not 'reasonably practicable' for the defendant to have complied with the requirements of s 18. That the WorkCover Authority has not taken steps to issue improvement or prohibition notices in relation to the machine, cannot take away from this conclusion. 47 For these reasons, it must be concluded that the defence was not made out. It should also be noted that the arguments advanced were, in reality, directed to a defence of the s 18(1)(a) charge. There is no basis upon which the defence could be established in relation to the charge brought under s 18(1)(b), especially when attention is paid to changes made in the machine instruction manual, after the accident. Conclusion

48 For the reasons given, it must be concluded that both offences have been made out on the evidence. The matters will now be listed for sentencing.

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