JBS Australia Pty Ltd v SafeWork NSW

HEADNOTE [This headnote is not to be read as part of the judgment] JBS Australia Pty Ltd (the appellant) operates a number of meat processing facilities and feedlots. On 19 February 2020, an employee (Ms Belinda Fletcher) was carrying out moisture testing on two hay bales, in the vicinity of a partly constructed stack, when two bales, each weighing around 700 kg, fell onto her from the stack, causing serious injuries. On 11 February 2022 SafeWork NSW (the respondent) commenced a prosecution of the appellant under s 32 of the Work Health and Safety Act 2011 (NSW) for breach of its health and safety duty. The charge was heard by Scotting DCJ (the trial judge) exercising the summary jurisdiction of the District Court. The appellant argued that it had identified the relevant risk of falling hay bales and adopted general practices to minimise the risk. It further contended that Ms Fletcher had been specifically trained as to, and understood, that risk. On 19 September 2023 the appellant was found guilty. On 8 November 2023 the trial judge convicted the appellant and imposed a $300,000 fine, 50% of which was to be paid to the respondent as a moiety. On 2 July 2024 the appellant filed a notice of appeal challenging the conviction and the order for payment of the moiety to the respondent (but not the penalty itself). The challenge addressed: (i) the scope of the appeal; (ii) findings regarding Ms Fletcher's training; (iii) the finding as to breach of duty; (iv) the finding as to causation; and (v) the order for payment of a moiety. The Court (Basten AJA, Ward P and N Adams J agreeing) held: As to issue (i) (the scope of the appeal) 1 An appeal under s 5AA of the Criminal Appeal Act 1912 (NSW) was not to be dealt with de novo, nor as an appeal by way of rehearing. However, like an appeal by way of rehearing, the appellant was required to identify error on the part of the trial judge. The scope of inquiry in an appeal in the "strict sense" must be more limited than an appeal by way of rehearing. In relation to the appellant's challenges to fact-finding, the Court should not make its own findings unless satisfied that the trial judge's findings were attended by error: [13], [23], [24], [32]. Ah Yick v Lehmert (1905) 2 CLR 593 at 601; [1905] HCA 22; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573; [2011] HCA 10; Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 applied; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 explained; Chamberlain v The Queen (No 2) (1984) 153 CLR 521; [1984] HCA 7; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 considered. As to issue (ii) (the trial judge's fact-finding) 2 Ms Fletcher, whose evidence was accepted by the trial judge, denied having been trained about the relevant risks. Given the findings as to her credit and reliability as a witness, it was not possible to identify a relevant error by the trial judge in his acceptance of her evidence. Further, the trial judge did not err in finding that her training was deficient, noting that she was not trained in how to deal with unusual or novel situations or the relevant safety measures to be taken: [67], [75]-[77], [79]-[82]. As to issue (iii) (breach of duty) 3 There was no error in the trial judge's conclusion that the appellant had not undertaken a risk assessment for moisture testing hay bales, and no suggestion that it was not a reasonably practical step that the appellant could have taken prior to the incident: [101]. The appellant's submission that the trial judge ignored evidence given by other employees contrary to that given by Ms Fletcher's did not address the finding that they had been given instructions not given to her: [108]. 4 The trial judge's findings that the appellant failed to develop safe work practices for moisture testing and hay stacking were not attended by error. It was open to him on the evidence to find that general practices based on oral instruction and absent a formal risk assessment were inadequate to guard against the known risks. The development of such procedures in a reasonably short time after the incident, provided a sufficient factual basis for finding that such steps would have been reasonably practicable: [113]-[126], [127]. Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304; [2001] HCA 6 applied. 5 The appellant did not identify any error with the trial judge's finding that Ms Fletcher's on the job training was inadequate and that proper training could have been provided at minimal cost and inconvenience: [131]. As to issue (iv) (causation) 6 The appellant did not identify any separate error in the trial judge's conclusion on causation, but rather relied on alleged errors in the findings as to the inadequacy of the training. The appellant's challenges were not independent, but rather sought to explain the bases of that training. The appellant's duty was to take reasonably practicable steps to address the pleaded risk, and speculation as to whether an individual worker would have followed instructions which were not provided was irrelevant: [135], [137], [139]. As to issue (v) (the moiety) 7 The appellant failed to demonstrate error in the order to pay a moiety. The suggested anomaly in the absence of power to pay a moiety to a police officer, but not to other public officers, was inherent in the legislative scheme; as was the capacity to order payment to a statutory law enforcement agency where the fine itself will be paid to the State which is responsible for law enforcement: [146]. In any event, these were not mandatory considerations which the trial judge ignored. Finally, the contentions were not raised in these terms before the trial judge: [146]-[150]. Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240; Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 applied.

JUDGMENT

1. WARD P: I agree with Basten AJA.
2. BASTEN AJA: The appellant, JBS Australia Pty Ltd, operates a number of meat processing facilities and five feedlots, including a feedlot at Caroona in northern New South Wales. On 19 February 2020, an employee testing moisture levels in hay bales was seriously injured when two bales weighing approximately 700 kgs each fell on her.
3. On 11 February 2022, the respondent, SafeWork NSW, commenced proceedings against the appellant for a breach of s 32 of the Work Health and Safety Act 2011 (NSW) (Work Safety Act).
4. On 19 September 2023, the trial judge, Scotting DCJ, found the appellant guilty. [1] On 8 November 2023 the judge made further orders, convicting the appellant and imposing a fine of $300,000. [2] Pursuant to s 122(2) of the Fines Act 1996 (NSW) the judge ordered that 50% of the fine be paid to the prosecutor (order 4).
5. Pursuant to a notice of appeal filed on 2 July 2024, the appellant appealed against its conviction. In relation to the sentencing, the only challenge was to order 4 requiring payment of half the fine (a moiety) to the prosecutor.

Scope of appeal

1. The appellant's grounds of appeal numbered 6, but ground 1 identified eight factual errors and grounds 2-5 identified factual errors explained in some detail, including by statements as to erroneous "premises". Before identifying the errors, however, it is convenient to address a dispute as to the scope of the appeal. Although it was supposedly common ground that the appeal was an appeal "in the strict sense" and not an appeal "by way of rehearing" there remained differences of approach in giving meaning to these labels.

Statutory scheme

1. The duty the subject of the breach was that identified in s 19 of the Work Safety Act in the following terms: 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of - (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.
2. The breach of the duty is classified in Pt 2, Div 5 into three categories. The offending in the present case fell into Category 2, the offence being created pursuant to s 32 in the following terms: 32 Failure to comply with health and safety duty - Category 2 A person commits a Category 2 offence if - (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. …
3. The procedure for the prosecution of the offence was identified in Pt 13 of the Work Safety Act. Section 229B(1) provided that "proceedings for an offence against this Act … must be dealt with summarily … before the District Court in its summary jurisdiction". Prosecutions may only be brought by "the regulator", an inspector with the written authorisation of the regulator, or the secretary of a union, members of which are concerned in the matter to which the proceedings relate: s 230(1). The "regulator" is identified as the Secretary of the Department of Customer Service, to be known as SafeWork NSW. [3]
4. The proceedings in the District Court were governed by Ch 4, Pt 5 of the Criminal Procedure Act 1986 (NSW). [4] Those provisions do not deal with appeals. An appeal is provided as of right pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW), which deals with appeals from the Supreme Court in its summary jurisdiction, but also applies to appeals from the District Court in its summary jurisdiction, pursuant to subs (7): 5AA Appeal in criminal cases dealt with by courts in their summary jurisdictions (1) A person - (a) convicted of an offence, or (b) against whom an order to pay any costs is made, or whose application for an order for costs is dismissed, or (c) in whose favour an order for costs is made, by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. … (3), (3A) (Repealed) (4) The Court of Criminal Appeal in proceedings before it on an appeal under this section may - (a) confirm the determination made by the Supreme Court in its summary jurisdiction, or (b) order that the determination made by the Supreme Court in its summary jurisdiction be vacated and - (i) make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal, or (ii) order a new trial in such manner as the Court of Criminal Appeal thinks fit. (5) Section 7(4) applies to an appellant on an appeal under subsection (1) in the same way as it applies to an appellant on an appeal under section 5(1). … (7) This section applies to and in respect of the District Court in its summary jurisdiction in the same way as it applies to and in respect of the Supreme Court in its summary jurisdiction.
5. Significantly, s 5AA(1) does not identify the grounds on which an appeal may be brought. The "common form" appeal grounds adopted from the Criminal Appeal Act 1907 (UK) and found in s 6(1) of this Act, do not apply to appeals under s 5AA. Those grounds only apply to a person convicted on indictment, granted a right of appeal under s 5(1). There is, for example, no requirement for leave where the appeal is on a ground other than a question of law alone. Nor are appeals against conviction subject to the proviso in s 6(1) in the case of there being "no substantial miscarriage of justice". Appeals against sentence imposed on a summary conviction are not subject to the provisions in s 6(3).
6. No doubt these omissions were deliberate: s 7(4), picking up circumstances where the appellant was "mentally ill, so as not to be responsible," are specifically picked up in s 5AA(5) "as it applies to an appellant on an appeal under s 5(1)". [5] That the omissions are deliberate is supported by the fact that s 5AA(1) applies not only to persons who have been convicted, but also to those against whom an order for costs has been made, or not made.
7. It was common ground that the appeal under s 5AA was not an appeal by way of rehearing. Prior to their repeal, effective from 25 September 2000, s 5AA had included the following provisions: [6] (3) Any such appeal is to be by way of rehearing on the evidence ("the original evidence"), if any, given in the proceedings before the Supreme Court in its summary jurisdiction. (3A) The Court of Criminal Appeal may however give leave to adduce fresh, additional or substituted evidence but only if the Court is satisfied that there are special grounds for doing so. If the Court does give leave, the appeal is to be by way of rehearing on the original evidence and on any fresh, additional or substituted evidence so adduced.
8. The removal of those provisions followed criticism by this Court, and particularly by Spigelman CJ in Histollo Pty Ltd v Director-General of National Parks and Wildlife Service. [7] In one respect, however, an anomalous situation identified in Histollo has not been ameliorated. As the Chief Justice stated: [8] "Since 1979 the sensitivity with respect to criminal trials proceeding without a trial by jury has somewhat attenuated. Indeed in 1990, provision for a trial without a jury in all criminal proceedings was introduced as Pt 9 of the Criminal Procedure Act 1986. This has created the anomalous situation in which appeals for significant indictable offences, tried by a judge alone, are restricted to appeals in the strict sense under s 5 of the Criminal Appeal Act, whereas persons who are convicted in the exercise of the summary jurisdiction of the Supreme Court, or of the Land and Environment Court, are entitled to a wider appeal by way of re-hearing under s 5AA and s 5AB."
9. Trials by judge alone on indictment are now provided for in s 133 of the Criminal Procedure Act. Appeals against conviction on indictment by a judge without a jury are not merely appeals "in the strict sense", but remain susceptible to challenge on the grounds identified in s 6(1), although, unlike trials with a jury, such an appeal will focus on the reasons given by the trial judge, as it does with a judgment in the summary jurisdiction.
10. The assumption that an appeal under s 5AA is now an appeal "in the strict sense" invites attention to the differences between such an appeal and an appeal by way of rehearing. It also draws attention to the fact that these labels tend to be applied generically without careful consideration of the statutory context in which they operate. However, having noted that the "incidents" of appeals can vary from statute to statute, Gageler J in Minister for Immigration and Border Protection v SZVFW [9] stated: "30 Like an appeal in the strict sense, of which an appeal to the High Court under s 73 of the Constitution is the prime example, an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to 'give the judgment which in its opinion ought to have been given in the first instance'. And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. '[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.' 31 For practical purposes, the difference between correction of error on an appeal in the strict sense and correction of error on an appeal by way of rehearing lies in the temporal perspective that the appellate court is required to adopt in examining the correctness of the judgment under appeal. An appellate court determining an appeal in the strict sense is required to determine the correctness of the judgment under appeal at the time that judgment was given: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial and on the law as it then stood. An appellate court determining an appeal by way of rehearing, in contrast, is required to determine the correctness of the judgment under appeal in retrospect: in an appeal from a final judgment of a judge sitting without a jury, the correctness of the judgment is to be determined on the evidence adduced at the trial supplemented by any further evidence that the appellate court may allow to be adduced on the appeal, and on the law as it stands when the appellate court gives judgment on the appeal." [Footnotes omitted.]
11. The following observations should be made in relation to this statement of principle. First, as Gageler J noted, because appeals are creatures of statute, it is important to have regard to the terms of the relevant statute. In SZVFW the Court was concerned with an appeal in the civil jurisdiction under the Federal Court of Australia Act 1976 (Cth). [10] Fox v Percy, [11] to which Gageler J referred and which was relied upon by the appellant in the present proceeding, was concerned with a civil appeal governed by s 75A of the Supreme Court Act 1970 (NSW). These provisions set out both the manner in which the appeal is to be exercised, including by way of hearing further evidence, and the powers of the court determining an appeal. Section 75A expressly identifies the appeal as one "by way of rehearing".
12. Secondly, the observations in SZVFW were expressly directed to an appeal "from a final judgment of a judge sitting without a jury" [12] and, at least by implication, were directed only to civil proceedings. Clearly an appeal from a judgment giving effect to a jury verdict will entail a different analysis. As stated in Fox v Percy, "[a] jury gives no reasons and this necessitates assumptions that are not appropriate to, and need modification for, appellate review of a judge's detailed reasons". [13]
13. A question as to the grounds upon which a criminal conviction might be reviewed, in the absence of a statutory provision in the common form contained in s 6(1) of the Criminal Appeal Act, may be seen in Chamberlain v The Queen (No 2). [14] The Full Court of the Federal Court (from which the appeal was brought) had held in an earlier decision, Duff v The Queen [15] that a criminal appeal was limited to the grounds upon which, at common law, new trials might have been granted after judgments entered on jury verdicts. In Chamberlain (No 2), Gibbs CJ and Mason J (Murphy J agreeing) rejected that conclusion. Rather, they held: [16] "The grant of a general appeal by s 24(1)(b) of the Federal Court of Australia Act was intended to enable the Full Court of the Federal Court to 'entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous': cf Ah Yick v Lehmert. [17] Since it cannot be supposed that that the Parliament intended to make available to the citizens of the Territories an inferior sort of justice, or to require that the Federal Court should affirm a criminal conviction notwithstanding that it had reached the conclusion that a miscarriage of justice had occurred, it must be concluded that the power of the Federal Court, unfettered in terms as it is, was intended to extend at least as widely as those of the State Courts of Criminal Appeal, and thus to enable the Federal Court to set aside a verdict whenever it is of opinion that there has been a miscarriage of justice."
14. Deane J came to a similar conclusion: [18] "The jurisdiction of the Federal Court to hear appeals from the Supreme Court of a Territory was created and conferred in general terms by s 24(1) of the Federal Court of Australia Act 1976 (Cth) ('the Act') without express mention of the grounds or principles upon which such appeals are to be determined. Under that subsection, the Federal Court's appellate jurisdiction is identified as being 'to hear and determine - (a) appeals from judgments of the [Federal] Court constituted by a single Judge; (b) appeals from judgments of the Supreme Court of a Territory …'. That grant of jurisdiction must be read in the context of those provisions of the Act which confer express appellate powers upon the Federal Court and, at least in the case of appeals from a Supreme Court of a Territory, in the context of the relevant appellate structure both before and after the enactment of the Act."
15. The reasoning in Chamberlain cannot be transposed without qualification to the construction of s 5AA of the Criminal Appeal Act. That is primarily because principles applicable to an appeal from a conviction on an indictment are to be distinguished from appeals from a judge-alone trial in the exercise of summary jurisdiction. The statutory scheme deals with appeals from conviction on indictment in ss 5 and 6, provisions not picked up by s 5AA in circumstances where they clearly could have been had that been intended.
16. It must also be accepted that the deletion of subs (3) and (3A) removed the appeals from the category of appeals by way of rehearing. Although subs (4) retains a reference to "the evidence heard on appeal", it should not be inferred that the Court of Criminal Appeal will hear evidence, rather than deal with the matter on the basis of the evidence adduced at trial.
17. Nevertheless, like an appeal by way of rehearing, the matter is not to be dealt with de novo, without establishing at the threshold that there has been an error on the part of the trial judge. As explained by Griffith CJ in Ah Yick v Lehmert: [19] "When there is a general appeal from an inferior Court to another Court, the Court of Appeal can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous. The error may consist in a wrong determination of a matter properly before the Court for its decision, or it may consist in an assertion by that Court of a jurisdiction which it does not possess, or it may consist in a refusal of that Court to exercise a jurisdiction which it possesses. In all these cases the Court of Appeal can exercise its appellate jurisdiction in order to set the error right."
18. A finding of "error" is a conclusory statement which does not identify the scope of the review to be undertaken to determine whether there is error. If there is to be a distinction between an appeal by way of rehearing and an appeal in the strict sense, the scope of the inquiry to determine error must be more limited in the latter case than in the former. Further, it is not an easy matter for the appeal court to conclude that, while it may have formed a different view as to the facts, it was not satisfied that there was "error" in the finding made by the trial judge. The statements in Fox v Percy (and in SZVFW) as to the need for the appeal court "to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons" and to undertake the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions" [20] were made in the context of an appeal by way of rehearing: they do not assist in identifying the steps in an appeal which is not by way of rehearing. What is clear, however, is that the Court in the present case is constrained by the need to identify error, whether of fact or law.
19. The appellant submitted that the conclusion reached in the following statement in Bulga Underground Operations Pty Ltd v Nash [21] should not be followed: "96 It is now well established that following the amendments made to the section consequent upon the decision of this Court in Hilstollo Pty Ltd v Director General of National Parks and Wildlife Service (1998) 45 NSWLR 661, an appeal under this section is an appeal in the strict sense and it is necessary to show error: Thorneloe v Phillip Filipowski [2001] NSWCCA 213; 52 NSWLR 60 at [3]; Gilmour v Environment Protection Authority [2002] NSWCCA 399; (2002) 55 NSWLR 593 (Gilmour) (in which it was stated at [19] that error must be demonstrated as a threshold point); Cabonne Shire Council v Environment Protection Authority [2001] NSWCCA 280 at [3]-[5]; Walker Corporation Pty Ltd v Director General Department of Environment and Climate Change and Water [2012] NSWCCA 210; 82 NSWLR 12 at [43]; Rummery v Chief Executive Office of Environment and Heritage [2014] NSWCCA 106 at [5]. This principle was not disputed. It follows that an appeal can only succeed if the trial judge committed an error of law or applied the wrong principles in his or her fact finding exercise."
20. In HD Projects Pty Ltd v SafeWork NSW, [22] Macfarlan JA noted that there was "a question" as to whether the last sentence in the passage from Bulga set out above "accurately describes the breadth of an appeal that can be brought in respect of an error of fact", noting that it was not necessary to answer the question as neither party had put the ambit of s 5AA in issue: at [5]. Nevertheless, Macfarlan JA continued: "6 In relation to this question, I refer in particular to the fact that s 5AA does not confine appeals to particular types of errors, such as of law, and unlike s 5 of the same Act does not require leave to appeal on a question of fact alone. Appeals under it are accordingly unrestricted save for those limitations that necessarily arise from the nature of the decisions under challenge, for example discretionary decisions or ones based on credit findings. At least arguably, and subject to those limitations, the principles stated in Warren v Coombes (1979) 142 CLR 531 at 552; [1979] HCA 9 (also see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [87]) are applicable to appeals under s 5AA, notwithstanding that the section provides for appeals from criminal convictions and does not state (as it did prior to 2000) that appeals under it are to be by way of 'rehearing' (see Histollo Pty Ltd v Director-General of National Parks & Wildlife Service (1998) 45 NSWLR 661; (1998) 103 LGERA 355 at 663-666 and 672-678). 7 Whilst there are important differences between appeals in the strict sense (that is, not described in the relevant legislation as other than an 'appeal') and appeals by way of rehearing, those differences do not appear to include a restriction in the former, but not in the latter, to particular types of factual challenges (see Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 625-631; [1976] HCA 62; Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 at [57].)"
21. In Lacey v Attorney-General for the State of Queensland [23] the High Court considered whether a provision in the Criminal Code (Qld) permitting the Attorney to appeal against a sentence and conferring power on the court "in its unfettered discretion" to vary the sentence, required identification of error on the part of the sentencing judge before the power to vary the sentence was engaged. The joint reasons held that "[t]he word 'appeal' must be given content". [24] A failure to do so resulted in jurisdiction being collapsed into power. The joint reasons rejected a submission that the conferral of an unfettered discretion to resentence removed the need to demonstrate error on the part of the sentencing judge: "50 … It is a construction which gives no jurisdictional content to the term 'appeal'. It confers upon the Court a power unconstrained by any principle beyond those which constrained the sentencing judge."
22. The result, the joint reasons explained, would be to obliterate the distinction between original and appellate jurisdiction; [25] and "the only limiting criterion for the exercise of the jurisdiction was the indeterminate standard of substantial disagreement with the primary judge, a standard conclusional in character and attainable by a multiplicity of pathways, including both the principled and the visceral". [26] The joint reasons then stated that jurisdiction was engaged only "where error has been demonstrated". [27]
23. Reconciling these propositions is not entirely straightforward. However, it seems reasonable to conclude that the High Court was drawing a distinction between a substantial but visceral disagreement, and the demonstration of error by a principled disagreement. If that is the correct reading, that may explain the reference in Bulga to the application of "wrong principles" in fact-finding. That approach should be accepted.
24. Two further points should be made with respect to the reasoning in Lacey. First, it involved a challenge to the exercise of the discretionary power involved in sentencing which is understood to be subject to the constraints imposed in House v The King. [28] On the other hand, House refers to the possibility that the sentencing judge "mistakes the facts".
25. Secondly, the use of the term "appeal" was held in Lacey to invoke the distinction between original and appellate jurisdiction, a line which may be drawn between the exercise of power de novo and an appeal by way of rehearing.
26. Quite apart from the usual constraints on an appeal court addressing challenges to a fact-finding exercise by a trial judge, it should be accepted that the appellant must demonstrate error. Usually that should be a specific identifiable error, ascertainable from the judge's reasons. On the other hand, there may be cases of the kind identified in House where "upon the facts" (perhaps referring to the evidence) the result embodied in the order is "unreasonable or plainly unjust". In such a case an exercise of discretion is reviewed on the ground that "a substantial wrong has in fact occurred". This, in terminology relevant in the present context, might be identified as a miscarriage of justice, of a kind which is shown to be material, in that it could have affected the outcome, and is in that sense significant.
27. On that basis, consistently with the respondent's position, it is not necessary to depart from the reasoning in Bulga; nor is it appropriate to adopt principles established by reference to an appeal by way of rehearing.
28. The respondent submitted in relation to numerous challenges raised by the appellant that the findings of the trial judge were "open". This language is usually eschewed when dealing with an appeal by way of rehearing, but its precise implications are not usually explained. In the present case, it may be intended to mean that no relevant error has been identified in relation to such findings. That understanding may be accepted. It follows, in relation to the appellant's challenges to fact-finding, that the Court should not make its own findings unless satisfied that the finding of the trial judge was attended by error. For that purpose, at least in principle, the exercise should commence by examining the findings which were material to the judge's conclusions that he was satisfied beyond reasonable doubt as to each element of the offence.

The incident

1. The undisputed background to this case commenced with the arrival on the morning of 19 February 2020 of a truck load of hay at the premises of the appellant at Caroona. Four steps were required to be taken, namely to (i) identify the location at which the truck would be unloaded; (ii) unload the truck; (iii) moisture test the bales once they had been unloaded and (iv) place the bales in a stack on an allocated hard pad.
2. On the morning of 19 February 2020, the mill supervisor, Nicole Radcliffe, was unavailable and the receipt of the hay load was undertaken by the livestock supervisor, Margaret Wippell. Ms Wippell directed the driver to take the truck to a location adjacent to a pad. Ms Wippell then returned to the office and spoke to Belinda Fletcher, who was a commodities clerk and weighbridge attendant. Ms Fletcher's responsibilities included moisture testing the bales. Ms Wippell drove Ms Fletcher to the pad where the hay was to be stacked. At that stage the truck had not been half unloaded.
3. There were two frontend loaders [29] moving the bales. One of the drivers, Bradley Keeys was unloading the truck. At the time Ms Fletcher arrived, he had commenced to place a stack on the pad with a height of six bales. A second frontend loader driver, Allan McKenna, arrived to take over from Mr Keeys who was needed elsewhere. One of the drivers placed two bales which had not been moisture tested next to the partly constructed stack. Ms Fletcher then approached the two bales to carry out moisture testing. As she did so, two bales at the top of the partly constructed stack fell on top of her. She was severely injured.

The charge

1. The respondent investigated the incident and laid the charge the subject of the present proceeding. Annexure A to the summons commencing the proceeding in the District Court identified particulars of the offence in 14 paragraphs. The first nine paragraphs were uncontroversial. Paragraph 10 alleged a duty imposed on the appellant by s 19(1) of the Work Safety Act, "to ensure, as far as reasonably practicable, the health and safety of workers, in particular Ms Fletcher, while they were at work in the business or undertaking". Paragraph 11 identified the risk in the following terms: "The risk was the risk of a hay bale (or hay bales) falling and striking, crushing and or trapping a worker whilst undertaking the task of moisture testing." Neither of pars 10 and 11 was controversial.
2. The focus of the fact-finding exercise turned on par 12, which identified six measures, "each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practical to eliminate, the risk". The measures, several of which had various sub-particulars within them may be summarised as follows: 1. undertaking an adequate risk assessment of the tasks of unloading hay bales, moisture testing hay bales and stacking hay bales; 2. developing safe work procedures for moisture testing; 3. developing safe work procedures for stacking hay bales; 4. providing information training and instruction to workers on safe work procedures for moisture testing and stacking hay bales; 5. providing adequate supervision for workers undertaking those tasks; 6. appointing a spotter who had communication with the frontend loader operator to prevent persons from entering the area in which the loader was operating.
3. The trial judge was not satisfied as to measures (e) and (f) which, accordingly, may be disregarded.
4. The trial judge identified the four elements of the offence under s 32 of the Work Safety Act in the following terms: [30] (1) The defendant was conducting a business or undertaking. (2) The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; (i) workers engaged by it …; (ii) while the workers were at work in the business or undertaking. (3) The defendant failed to comply with its health and safety duty. (4) The failure exposed an individual to a risk of death or serious injury. Elements (1) and (2) were admitted; the dispute arose in relation to elements (3) and (4). [31]

Trial judge's reasons

1. The trial judge set out the relevant legal principles, as to which no ground of appeal was directed. [32] The next section of the judgment addressed element (3), namely whether he was satisfied beyond reasonable doubt that the defendant had failed to comply with its health and safety duty by failing to take some or all of the steps set out in the particulars of breach and that the steps were reasonably practicable. [33]
2. The judge noted that the risk posed by falling hay bales was well known to the defendant and in the industry. The judge referred to a "Toolbox talk (TBT)" which had been undertaken on 12 August 2019 following the death of a worker in Queensland caused by a hay bale falling when being unloaded from a truck. [34] One of the directions given was that "if a worker does not know where a driver is, work is to stop immediately until the driver is located". [35] The judge also noted that the risk was identified in the defendant's "hay stacking task description". [36] The final entry in the hay stacking task description was: "NEVER WORK WITHIN 1.5 METERS [sic] OF THE EDGE OF STACKS."
3. The judge noted that no mention was made of moisture testing in the hay stacking task description. [37] The judge concluded: "234 The defendant knew, through the knowledge of its workers, that partially constructed stacks were unstable and bales could and did fall."
4. Further, the judge expressed satisfaction to the criminal standard of proof, in terms which will be set out in addressing the grounds of appeal, that (i) the informal system of training without relevant, documented fair work procedures was deficient and involved a breach of the appellant's health and safety duty; (ii) the deficiencies were a significant or substantial cause of the exposure of Ms Fletcher to the risk of serious harm or death; (iii) the steps identified at pars 12(a)-(d) in the summons should have been taken prior to the incident; (iv) such steps, which were taken shortly after the incident, were reasonably practicable, and (v) such steps would have removed Ms Fletcher from the pleaded risk and the risk of being hit by a frontend loader. [38]

General approach

1. Senior counsel for the appellant explained in opening the appeal, that the "fulcrum" of the appeal [39] turned on two propositions. The first proposition was that, prior to the accident involving Ms Fletcher, the appellant had identified the relevant risk, namely of hay bales falling on a worker, and had adopted general practices which avoided the risk materialising. The second proposition was that Ms Fletcher herself had been "specifically trained" that "to conduct a moisture test at the face of or in close proximity to a stack was dangerous". [40]
2. Two inferences followed from these propositions. The first was that there had been no breach because there was no reasonably practicable step which the appellant should have taken but had not taken prior to the accident. The second inference was that if further steps of the kind relied on by the prosecutor had been taken, the outcome would have been no different because Ms Fletcher already understood the risk and further training would not have resulted in her not doing the moisture testing at the time and in the place that she did it and suffered injury. [41]

Ground 1 - errors in fact-finding

1. Ground 1 was headed "factual findings" and alleged error on the part of the trial judge in making eight specific findings. Two related to the general practices and conduct of the appellant; six related to the knowledge and training of Ms Fletcher. The impugned findings relating to the appellant's practices and conduct were as follows: "(a) the appellant had not adequately identified the hazard (being stacked hay bales), appreciated the risk that they posed during the task of moisture testing and trained workers to conduct the work of moisture testing in a safe manner (J[98], [170], [171], [167], [173], ]242], [258(b)], [287] and [307]-[310]; … (h) the training provided on the general practice was deficient in that it did not: (i) prevent Mr McKenna putting the stack of two bales that had to be moisture tested in close proximity to a partially constructed stack that was unstable; and (ii) prevent a worker from being placed in danger through being put in proximity to a partially constructed stack (J[258(c)-(d)])."
2. It is convenient to address these matters before considering the findings with respect to Ms Fletcher, although whether Ms Fletcher was adequately trained was encompassed within ground 1(h)(ii). Indeed, most of the specific paragraphs referred to in challenged findings relating to Ms Fletcher were covered by the long list of paragraphs of the liability judgment set out in ground 1(a). The result is that the findings adverse to the appellant's case regarding Ms Fletcher's position, not addressed by the general practice grounds, are quite limited in scope. This was the first of many cases of overlapping and repetitive pleading of grounds of appeal.

Grounds (1)(a) and (h) - general practices

1. The terms of grounds (1)(a) and (h) were entirely covered by other later grounds. Like most of the grounds, they ran together more than one element. The result was a lack of clarity and potential confusion.
2. Ground 1(a) contained three elements, namely findings of failure on the part of the appellant in not adequately (i) identifying the hazard, (ii) appreciating the risk, and (iii) training its workers to undertake moisture testing in a safe manner. As to the first two elements, much work must be done by the word "adequately". The judge did not find that the appellant had not identified the hazard and appreciated the risk, because at the core of the prosecution case was acceptance that the appellant was aware of the hazard and the risk. Nor were those facts denied by the appellant. The prosecution case turned on the inadequacy of the steps taken to identify the pleaded risk by way of a formal risk assessment and formulate a response by way of properly documented safe work practices which could then be the subject of training workers who would otherwise be exposed to the risk.
3. The first two elements were the subject of findings challenged by grounds 2-4. (The overlapping of the grounds is confirmed by grounds 2(f) and 3(i) picking up "some or all of the erroneous findings set out in appeal ground 1".) The third element may be put to one side as it substantially overlaps with par (h).
4. Ground 1(a) identified eleven passages in the liability judgment recording the findings under challenge. Of those, the first four [42] related to Ms Fletcher's state of knowledge and three further passages [43] related to the inadequacy of her training and were covered by grounds 1(b)-(g). A further two paragraphs concerned the failure to undertake a risk assessment, addressed in ground 2. [44] There remained a passage in the liability judgment which concerned element 4 of the charge, [45] namely whether the appellant's breach exposed Ms Fletcher to a risk of death or serious injury: that passage, concerning causation, was the subject of ground 5.
5. In short, each of three elements of ground 1(a) involved challenges more directly addressed by subsequent grounds which gave meaning to the otherwise indefinite epithet, "adequately". They do not require separate attention here.
6. As to ground 1(h) which addresses "training", it follows that the question of whether the judge was right to find that the general practices adopted by the appellant were inadequate is also addressed below. However, it is convenient to set out [258]-[261] from the liability judgment in full, as they identify the deficiencies in the "general practice" of the appellant prior to the accident involving Ms Fletcher which formed the essence of the prosecution case. "258 The training provided on the general practice was deficient in that it did not: (a) include an instruction to Ms Fletcher not to test bales at the face of a stack or that it was dangerous to do so; (b) include training Ms Fletcher on the safety measures to be taken by the FEL operators such as those in the Hay Stacking TD; (c) prevent Mr McKenna putting the stack of 2 bales that had to be moisture tested in close proximity to a partially constructed stack that was unstable; and (d) prevent a worker from being placed in danger through being put in proximity to a partially constructed stack. 259 As was demonstrated by what occurred on occasions before the incident, it was reasonably practicable to separate the tasks of unloading hay bales from the truck, moisture testing and putting the bales into a stack. Truck drivers could not be released from the site until the moisture testing had been completed so that wet and/or soft bales could be returned to the supplier on the truck. The separation of the tasks extended the time it would have taken to moisture test the bales because no testing could take place until the truck was entirely unloaded. I infer that this delay was not thought to be unreasonable or impractical because: (a) the same delay was incurred if the FEL operator conducted the moisture testing; (b) there were occasions before the incident when the process was conducted in this way; and (c) this was the process adopted in the post-incident procedures. 260 By separating the tasks, the risk of a worker coming into contact with a falling bale was minimised. There may have been some remaining risk of a stack of 3 bales falling onto a worker while moisture testing was taking place, but it was very small. The risk of a worker conducting the moisture testing being struck by a FEL was eliminated. In other words, by separating the tasks, the process was made safer. 261 In circumstances where the defendant ought to have known that the general practice was inadequate to ensure the safety of workers such as Ms Fletcher, I am satisfied that it was appropriate to introduce new procedures through written safe work procedures such as the post-incident procedures, to convey that the on-the-job training relating to the general practice was being replaced by the new procedures."

Grounds 1(b)-(g) - Ms Fletcher's knowledge and training

1. Grounds 1(b)-(g) alleged error on the part of the trial judge in making the following six findings: "(b) Ms Fletcher did not act contrary to her training and/or a known safe work procedure by testing the two bales placed next to the partially constructed stack (J[98], [169], [171] and [174]); (c) Ms Fletcher's training was deficient insofar as she had not been instructed that it was dangerous to moisture test bales at the face of the stack and that she should not do so (J[98], [170], [171], [258(a)], [287], [310]); (d) Ms Fletcher did not appreciate the risk that the top bales might fall on her [167], [315]); (e) Ms Fletcher's training was deficient insofar as she had not been trained on the safety measures to be taken by the FEL operators such as those in the Hay Stacking Task Description (J[258(b)], [287]); (f) Ms Fletcher's training was deficient insofar as she had not been trained how to deal with an unusual/novel situation (J[287], [290], [310], [315]); (g) There was no independent assessment of Ms Fletcher's ability to undertake moisture testing (J[289])."
2. As to grounds 1(b) and (c), the appellant took the Court to six witnesses in support of the proposition that because of "the preponderance of contrary evidence about what moisture testers were taught at the feedlot, the primary judge erred in positively concluding that the effect of Ms Fletcher's evidence was that she was not properly taught that it was dangerous to moisture test at the face of a six high stack". [46] However, a close reading of that evidence does not reveal Ms Fletcher being instructed as to the risks involved in moisture testing near a partly constructed stack of bales. Rather, it reveals the understanding of the various witnesses as to the practices they adopted in their differing roles.
3. First, the appellant relied upon the evidence of Ms Wippell, the livestock supervisor, that workers "were not to do moisture testing of hay bales at the face of a stack that was being constructed …. This was evidence, to the effect that, workers had been so instructed". [47]
4. As with other witnesses, Ms Wippell's evidence was limited in respect of the areas of her knowledge. When asked about toolbox meetings for employees "from the feed mill", she said, "I can't speak on the mill side, but on the livestock side …". [48] In respect of a toolbox meeting held in August 2019 (after a driver at a Queensland site had been killed by a falling bale) called to discuss the risks associated with falling hay bales, she had no knowledge. The cross-examiner continued: [49] "Q. Were you told by anyone that workers needed to keep a safe distance away from stacked bales because if they fall the can roll away from the immediate area? A. I wasn't aware they were told. To me that's sensible."
5. As the respondent noted, this was not evidence of a safety instruction given to workers, but rather the contrary. Further, it did not relate to Ms Fletcher's position, she not being a mill worker or a livestock worker.
6. Ms Radcliffe gave evidence as to what she had been taught, apparently by word of mouth by a Richard Nicholls. She also stated that she had trained Ms Fletcher "on how to use the moisture tester" and "the process of moisture testing". [50] Having given a description as to how she herself was taught in relation to safety matters, she was asked, somewhat obliquely: [51] "Q. Just in relation to Ms Fletcher, you say that you taught her how to do moisture testing. Can we assume that you taught her in the manner in which you had been trained by Mr Nicholls. Correct? A. Yes."
7. The appellant's written submissions noted the trial judge's assessment of Ms Radcliffe, which was in the following terms: "159 … I do not accept Ms Radcliffe's evidence because, on a number of issues, it was contrary to contemporaneous evidence or against the weight of the evidence, and because of her poor demeanour as a witness. I have not accepted her evidence unless stated otherwise." The appellant submitted that the judge rejected her evidence because she had a grudge against the appellant and therefore her evidence, in so far as it favoured the appellant, should have been accepted. [52]
8. The judge did not expressly refer to her evidence that she trained Ms Fletcher, but did refer to that of Ms Fletcher, whose evidence he did accept, that she had been trained in moisture testing by Kevin Griffith, a mill supervisor, and that the training involved following him around for a day while he undertook moisture testing.
9. All the other evidence concerned the training of the frontend loader drivers and other mill workers. There was no challenge to, and no basis for any challenge to, the judge's finding that Ms Fletcher had not been trained on the Hay Stacking Task Description, [53] nor given the general training which other mill workers had been given in relation to safety in loading, unloading and stacking bales. Mr Keeys gave evidence that he had been taught not to perform moisture testing of hay bales "proximate to a six-high stack": [54] he gave no evidence as to what Ms Fletcher had been trained to do or not do.
10. In making findings on the evidence relating to the events of 19 February 2020, the judge concluded: "171 The defendant submitted that Ms Fletcher had been trained not to moisture test hay bales at the face of a stack. I reject that submission. I find that Ms Fletcher had been trained to moisture test bales in accordance with the general practice, which did not involve testing bales at the face of a stack. However, that was not the same as instructing her not to test bales at the face because it was dangerous to do so. 172 I accept Ms Fletcher's evidence that she had not been trained on the Hay Stacking TD or the 'Take 5' Procedure and did not attend TBTs in the mill department. I find that Ms Fletcher was unaware of the safety measures that the FEL operators were required to take when they were unloading bales from trucks and hay stacking, and it was reasonable for her to believe that that they were complying with those measures. 173 There was no documentary evidence that she had been trained how to undertake the task of moisture testing safely or that she had been warned of the risks associated with that task. She had been given Task Training on other parts of her role and assessed as understanding the safety risks and how to control them for those tasks. She did not receive similar Task Training for the task of moisture testing because the defendant had failed to identify it as a separate task prior to the incident. 174 I accept Ms Fletcher's evidence that she had not previously been presented with a similar situation when she had previously moisture tested bales at the feedlot. I accept her evidence that whilst she had been trained on the general practice, she had not been trained that it would be unsafe to moisture test the stack of 2 bales placed by Mr McKenna next to the partially constructed stack."
11. As to [172], which was the subject of ground 1(e), error was alleged for two reasons. [55] First, the direction given to the operators not to work within 1.5 metres from the edge of a stack was, it was submitted, "covered by the specific moisture tester training provided to Ms Fletcher to not moisture test at the face of a stack". There was no finding that she received such training and the challenge to the finding that she did not has been rejected. The second objection was that as she was not a frontend loader operator, the hay stacking directions were not intended to be read by her, let alone enforced by her as a moisture tester. That, however, missed the point that as a person working in the vicinity of the hay stacking operations, there was a need for her to understand the safety parameters of the work undertaken by the vehicle operators. The lack of coordination was illustrated by the evidence of Mr Keeys. He gave evidence that he had placed bales "where they would be tested by Belinda Fletcher". [56] In cross-examination he gave evidence that if he had seen someone conducting moisture testing at the face of a stack he would have "warned them". He said he never saw anyone do that on 19 February 2020. However, he agreed that he would want to make eye contact or verbal contact with a person performing moisture testing and did so with Ms Fletcher. [57] It was evident from his evidence that he had lost sight of Ms Fletcher by the time of the accident. The challenge to the finding at [172] must be rejected.
12. Once the highly favourable assessment of Ms Fletcher as a witness was made, and her evidence in relevant respects expressly accepted, the attempt to demonstrate error in the finding as to her lack of training was doomed to fail and must be rejected. Subject to consideration of the overlapping issue raised by ground 1(d), grounds 1(b), (c) and (e) must be rejected.
13. The gravamen of the challenge in Ground 1(d) was identified in the appellant's written submissions by the heading "Ms Fletcher appreciated the risk". The challenged findings were expressed as follows: "167 I accept Ms Fletcher's evidence that she went to moisture test the stack of 2 bales placed by Mr McKenna because they had not been moisture tested and that was why she was there. I am satisfied that, at the time that she approached the bales, she did not appreciate the risk that the top bales might fall on her. I find that her evidence that she knew that it was dangerous to test those bales 'at the face of a stack' was informed by hindsight. … 315 I have rejected the central factual premise on which they are based. For the reasons given, I have rejected the proposition that Ms Fletcher made a deliberate decision to test the bales in a manner that she knew to be unsafe or that was contrary to her training. I have found that when presented with a novel situation, that she had not been properly trained. Ms Fletcher proceeded with the task she had been given without comprehending the danger that she was in."
14. The appellant submitted that the judge erred in concluding that Ms Fletcher's own admission that her conduct on the day was "a mistake" was made in hindsight, as was her evidence that it was dangerous to test bales at the face of a stack.
15. The submission should not be accepted. Ms Fletcher's evidence was consistently that she had not been taught about these risks, commencing with the following passage: [58] "Q. You were taught that the task of moisture testing was not to be performed once hay bales had been stacked from a pad, correct? A. Well, it had never ever come up. Q. But listen to my question. You were taught that the task of moisture testing was not to be performed once hay bales had been stacked on the pad, correct? A. No. I'd only ever been shown that it was to be done, but it wasn't specified that you must never do that. … Q. And you agree that it was also important and you were taught not to perform moisture testing of hay bales that were placed in, or were approximate to a six high stack? Do you agree? A. No. Q. You accept, don't you, and you knew prior to 19 February 2020, that it was important not to perform moisture testing of hay bales at the face of a stack that was being constructed at a pad. You knew that. A. That had never come up, because we just don't do that. Q. No, you don't. And the reason you don't do that is because it would be dangerous to do that, correct? A. It would, yes. Q. And you knew that before 19 February, correct mam? A. Yes."
16. The questioning returned to this topic: [59] "Q. … Prior to 19 February, you had never tested hay bales that were in a stack; correct? A. That's correct, yes. Q. That was contrary to your training, correct, of course, to test bales that were in a stack; correct? A. Yes. Q. It's correct, isn't it - I don't mean to be disrespectful - but you can't explain why you undertook the moisture testing at the face of the stack on 19 February, can you? You can't explain why you did it on that day? A. Because I was taken down there to do the job and that is how the job came together. So, to be taken down and - yeah - I was taken down to the job, so, I just did the job. Q. You were taken down to do the job as you had always done the job; correct? A. But the - the - did the whole handling of the hay was different. So, it changed the dynamics completely…."
17. At the end of a long passage of cross-examination in relation to what she had done on the day in question, she gave the following evidence, which was the basis of the judge's finding: [60] "Q. You accept, don't you, that on 19 February, you made a mistake in testing the bales in the stack; correct? You accept that? A. In hindsight, yes."
18. Senior counsel for the appellant sought to establish that the matter which was said to arise "in hindsight" was only the appreciation that she had made a mistake and did not affect the earlier answer, that her conduct was "contrary to" her training.
19. The judge set out these passages of evidence [61] and concluded: "100 I accept Ms Fletcher's evidence that the realisation that she made a mistake on the day of the incident was one made in hindsight, by reference to the bales falling on her. I am satisfied that Ms Fletcher's acceptance of the fact that it was dangerous to test bales at the face of a stack was also informed by hindsight. 101 I accept Ms Fletcher's evidence that she tested the 2 bales next to the partially constructed stack because they had not been tested and that was the job that she was there to do. I am satisfied that she did so without realising the danger posed by the partially constructed stack. I am satisfied that Ms Fletcher did not act in contravention of a known safe work procedure."
20. Ms Fletcher consistently denied having been trained in the risks of moisture testing hay bales near a partly constructed stack. Her evidence was also consistent with her appreciation of the dangers in hindsight, having been seriously injured when the risk materialised.
21. It is not possible to construct from this material a relevant error on the part of the trial judge in his understanding of Ms Fletcher's evidence. Indeed, a reading of the transcript affirmatively supports the findings made by the trial judge, although that exercise is not the one required on this appeal.
22. For these reasons, the findings of the trial judge with respect to the absence of a risk assessment and the likely benefits to have followed from carrying out a risk assessment with respect to moisture testing have not been faulted. Grounds 1(b)-(e) must be rejected.
23. Ground 1(f) challenged the finding that Ms Fletcher's training was deficient because she had not been trained in "how to deal with an unusual/novel situation". Two passages in the judgment are material in this respect: "290 As an administrative worker, Ms Fletcher was not included in TBTs conducted by the mill department that provided safety information relevant to the moisture testing task, such as the TBT delivered on 12 August 2019. Further, she was not trained in the 'Take 5' Procedure that may have equipped her to deal better with the unique situation that she was presented with. … 310 Fourth, the defendant failed to provide adequate training to Ms Fletcher. The evidence established that she was trained on the general practice but not that it was dangerous to conduct moisture testing close to a partially constructed stack. She was not trained on the Hay Stacking TD, the Take 5 Procedure or included in relevant TBTs conducted by the mill department. She was not assessed on her competence to conduct moisture testing safely in accordance with the Task Training procedures of the defendant's WHS system. She did not know what to do when faced with an unusual scenario and had not been trained on the risk that it posed."
24. The trial judge accepted that the Hazard Identification and Risk Assessment Procedure dated 5 October 2018 (the HIRA Procedure) required the carrying out of formal risk assessments, but noted that there was "no evidence that employees as referred to in clause 18.02 of the HIRA Procedure were trained on it". [62] The judge further noted that: "40 The 'Administrative Work' task assessment was structured in the same way and addressed matters such as workstation and set-up, communications, archiving procedures and biosecurity and safety procedures. In both task assessments, the worker was taught that they could 'ROLL Up' to their direct supervisor any concerns for their own welfare and/or safety issues that arose."
25. The appellant relied upon evidence of Ms Fletcher in cross-examination where she agreed that she was "taught that risk assessments were to be completed whenever there was a new task". [63] She also agreed her role was "to always look out for potential hazards" and "implement controls in order to minimise that risk or eliminate it". [64]
26. However, the trial judge concluded that the failure to train Ms Fletcher in the risks associated with hay stacking practices and moisture testing meant that she would not have readily identified the risk in question. The judge stated: "299 … I am not satisfied that random observation of the tasks of unloading hay, moisture testing and stacking hay would have identified the risk that arose on the day of the incident."
27. The finding is similar to that noted in the final sentence of [310], set out above. The reasoning of the trial judge in this respect was coherent and logical. No error was demonstrated: ground 1(f) must be rejected.
28. Finally, ground 1(g) challenged a finding that there was "no independent assessment of" Ms Fletcher's ability to undertake the task of moisture testing. [65] The judge continued: "[H]er other tasks were independently assessed as part of the Task Training aspect of the defendant's WHS system."
29. The appellant submitted that her ability to test was, like the training received, "through the buddy system", as had been accepted by the trial judge. [66] The appellant further submitted that the evidence established that "one feature of the buddy system was that new workers were monitored and supervised until they were deemed competent". However, Ms Fletcher was not a "new worker"; her training had separately been identified as inadequate, and there was no evidence of continued monitoring. Ground 1(g) must be rejected.
30. It follows that, to the extent ground 1 is not otherwise to be addressed through the following specific complaints, it must be rejected.

Appellant's submissions

1. The particulars of breach were to be understood as cumulative in effect, so that the purpose of one was to provide a basis for the next step in the demonstration of breach. Thus, par 12(a), pleading an absence of an adequate risk assessment, was a precursor to par 12(b), dealing with the development, implementation and enforcement of a "safe work procedure" for moisture testing and, in par 12(c), for stacking hay bales. Developing safe work procedures was a precursor to providing information, training and instruction to workers in relation to the safe work procedures: par 12(d).
2. The appellant's submission that it had "adequately identified the hazard", [67] failed to engage with the nature of the breach. It was not to the point that the trial judge had found that the appellant "was already aware of the risks". [68] However, the appellant submitted that the judge should have concluded that it "had conducted a risk assessment, albeit an undocumented one, for the task of moisture testing". [69] Similarly, the assertion that (albeit contrary to the facts found by the trial judge) Ms Fletcher knew of the risk, was irrelevant.
3. The appellant further submitted that, "[h]ad the primary judge properly found that Ms Fletcher knew that it was dangerous to test the stack of two bales that had been placed by Mr McKenna, this would have compelled the primary judge to find that a risk assessment had been performed prior to Ms Fletcher performing the work". [70] The underlying logic of this reasoning is by no means self-evident.
4. The appellant accepted, indeed relied upon, the proposition that "[r]isk assessments are logically anterior to the taking of safety precautions". [71] No doubt if the safety precautions were sufficient, that would be a complete answer to a pleaded breach of a health and safety duty. Further, while a risk assessment may be "logically anterior" to the taking of safety precautions, the fact that adequate safety precautions had been put in place does not mean that a risk assessment has been undertaken, but merely that it may have been, or that it was unnecessary.
5. The appellant submitted that the trial judge "conflated the issue of whether a risk assessment was conducted at all, with the question of whether it was documented". [72] That was said to be error, because the pleading did not advert to a documented risk assessment. This complaint owed much to formulism and little to purpose or context. The breach of duty involved a failure to take reasonably practicable steps to ensure the health and safety of its workers. Such a breach could take place in a number of ways. It was not necessary that each of the elements relied on by the prosecutor needed to be established. For example, if the risk had been clearly identified, safety measures formulated and some workers only advised of the steps required to be taken, there could have been a breach of duty with respect to those workers who were not informed or properly trained in the necessary safety procedures. The trial judge accepted that Ms Fletcher had not been properly informed or trained. Nor, it seems, had Mr McKenna. That was not because the appellant was not aware of the relevant risks, but because it had not formulated adequate safe work procedures, which in turn was a result of a failure to carry out an adequate risk assessment. It was open to the trial judge, in considering this case, to find that an undocumented or informal risk assessment was inadequate because it did not lead to the formulation of safe work procedures, which, it should be accepted, had to be set down in writing if they were to be used for the training of staff as the need arose from time to time.

Reasoning of trial judge - risk assessment

1. The judge's reasoning, as is often the case with lengthy judgments dealing with extensive evidence, reached dispositive findings and drew relevant inferences after findings of primary fact had been made. Bearing that in mind, the key passages in the dispositive reasons on risk assessment commenced with background considerations and referred to the appellant's own documented requirement for a formal risk assessment pursuant to the Hazard Identification and Risk Assessment Procedure. The judge stated: "32 Formal risk assessments were conducted at the feedlot pursuant to the Hazard Identification and Risk Assessment Procedure dated 5 October 2018 (the HIRA Procedure). The HIRA Procedure provided that risk assessments were to be undertaken by WHS officers and signed off by supervisors. Trainers/Assessors were required to review risk assessments and to update Task Descriptions for each task to reflect the findings of a risk assessment. Employees were required to participate in the risk assessment process as required. There was no evidence that employees as referred to in clause 18.02 of the HIRA Procedure were trained on it."
2. The HIRA Procedure identified at cl 18 "the methods to be used throughout JBS in identifying hazards, conducting and recording risk assessments for WHS purposes". Clause 18.09 stated: "At each site there is a requirement to have a risk assessment completed for each task. There are separate risk assessment templates for:- ● processing facilities ● feedlots … [Details were then given for the conduct of risk assessments.] The form is then transferred onto the wordform document with adjustments made to the document electronically. … The risk assessment will then be transferred to the training section, which will review the task description to ensure that the control issues are documented on the task description."
3. The primary judge reasoned in the following passage: "240 Clause 18.09 of the HIRA Procedure provided that at each site it was a JBS requirement that there was a risk assessment completed for each task. The risks required to be assessed for a task included 'contact with falling objects' and 'injury by moving equipment'. 241 The defendant also had obligations imposed by clauses 54 and 214 of the Regulations to manage risks to health and safety associated with falling objects and the use of powered mobile plant, in accordance with the process set out in Part 3.1 of the Regulations. 242 The task of moisture testing involved the risk of death or serious injury to a worker from a falling bale or being struck by a FEL. However, unlike the task of hay stacking and other tasks at the feedlot, the task of moisture testing had not been identified as a separate task and integrated into its WHS system. 243 The defendant did not produce any risk assessment for the task of moisture testing, notwithstanding that the HIRA Procedure required a risk assessment to be undertaken because the defendant knew that the task of moisture testing involved the risk of a worker being struck by a falling bale or hit by a FEL." [Emphasis added.]
4. It is significant that the finding italicised at [242] was not challenged.
5. With respect to [243] the appellant complained that as a defendant in a criminal proceeding, it had no obligation to provide evidence. However, no such implication was to be drawn from that paragraph in the judge's reasons: rather, he was simply stating that, amongst the volumes of material produced by the company, there was no such document.
6. The reasons continued: "244 The HIRA Procedure provided that once a risk assessment was to be completed, it would then be forwarded to the training department to review and update the Task Description for the task. I infer that if a risk assessment had been conducted on the task of moisture testing, the training department would have identified the gap in the defendant's WHS system and developed a Task Description for the task of moisture testing. 245 By implementing the general practice, the defendant was already aware of the risks involved in the task of moisture testing and the control measures that could be deployed to eliminate or minimise them. The general practice included isolation controls intended to separate a worker undertaking moisture testing from the places where they could be struck by a falling bale or hit by a FEL, but these were made more stringent in the post-incident procedures. 246 The general practice, if followed, was effective in minimising the risks of falling bales and being struck by a FEL. However, it was not invariable. The general practice had been passed on through word of mouth and demonstration over a long period of time. The exact content of any worker's training on the general practice could not be easily ascertained."
7. The inference drawn at [244] was referred to by the appellant, [73] but no challenge was made to the inference itself. It was merely treated as immaterial, because the pleading did not refer to a "documented" risk assessment.
8. The judge then noted that Ms Fletcher did not receive the training given to the frontend loader operators or others who were working in the mill department. Different frontend loader operators employed different methods in placing bales in stacks to be moisture tested that could potentially give rise to risk: [248]. There was, in short, a lack of uniformity of approach. The judge continued: "249 The defendant was required to be proactive in reviewing its management of risks to health and safety through the implementation of systematic procedures, such as the HIRA Procedure. 250 The tasks of unloading hay, moisture testing and hay stacking had overlapping elements. This was reflected in the post incident procedures introduced by the defendant. Once allowance was made for the task of moisture testing in the post incident procedures, it became apparent that the Hay Stacking TD also had to change, because it did not provide for the bales to be unloaded in stacks to allow the moisture testing to occur safely. 251 I am satisfied that a risk assessment could have been undertaken by the defendant on the task of moisture testing before the incident at little cost and inconvenience. 252 The evidence demonstrated that the defendant knew the risks associated with the task of moisture testing and the relevant control measures. I am satisfied that had it conducted a risk assessment prior to the incident that it would have identified those matters in the risk assessment." No separate or additional error was identified in any of those paragraphs.
9. Finally with respect to risk assessment, the judge concluded: "253 I am satisfied beyond reasonable doubt that the conduct of a risk assessment for the task of moisture testing was a reasonably practicable step that the defendant should have taken prior to the incident and that it would have had a positive impact on safety through the introduction of a safe work procedure as contemplated in the HIRA Procedure."
10. The appellant took issue with this conclusion on the basis that the finding as to the impact that a risk assessment would have had on safety "conflated the issue of non-compliance with a health and safety duty with the issue of causation". [74] There was, self-evidently, no conflation: [253] was directed in terms to the question of causation. As the appellant later stated, in addressing ground 5 (causation), "[a] finding of causation requires a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence". [75]
11. No error was demonstrated with respect to the judge's analysis of the facts or the conclusion that the appellant had not undertaken a risk assessment for the task of moisture testing hay bales. There was no suggestion that it was not a reasonably practical step that the appellant could have taken prior to the incident.
12. It remains to note five reasons why the finding as to causation was said to be erroneous. Two propositions relied on by the appellant were counterfactuals, namely that the appellant had implemented a safe system of work and had trained and instructed workers in isolation control measures. As noted above, had there been adequate safety measures in place, a risk assessment might well have been inutile. As will be noted shortly, the judge was satisfied that there was no relevant safe work procedure in place. Two other propositions were relied upon. [76] One was the existence of a general practice with respect to moisture testing; the other was that Ms Fletcher was aware of the risks and how to avoid them.
13. As to the first, the judge made a finding to that effect. Having identified the pleaded risk as the risk of a worker suffering harm as a result of a falling hay bale whilst undertaking the task of moisture testing, [77] the judge considered the likelihood of the risk occurring, which he identified as low: "231 The risk was ordinarily controlled by placing the bales in stacks of 2 or 3 away from a partially constructed stack, in accordance with the general practice. The evidence was that the general practice was usually followed. There was no other evidence indicating that workers were required to work on foot in the vicinity of stacks that were 6 bales high. In all of the circumstances, the likelihood of the risk occurring was low."
14. The fact that a risk of death or serious injury occurring in a particular way is low, does not negate the value of a risk assessment which would have identified the risk and provided the impetus to adopt safe work procedures to avoid it, nor does it cast doubt upon the contribution of the risk assessment to eliminating or minimising the pleaded risk.
15. As to the second matter, it is sufficient to refer to the challenge to the judge's finding that Ms Fletcher undertook the moisture testing on the day in question without realising the danger posed by the partly constructed stack. This was not a case where the negligence of the injured worker was of immediate relevance. The appellant did not challenge the proposition that safe work procedures might need to cater for inadvertence, carelessness or even negligence on the part of workers, including failure to comply with documented safe work procedures. With respect to causation, Ms Fletcher's understanding of the risk which materialised can only have been a material consideration if it amounted to wilful disregard of clear and precise instructions. There was no suggestion that that was the case, but there was, in any event, no basis for the challenge to the judge's findings. Those findings, which included reference to extensive passages in her cross-examination were found at [77] through to [102]. The judge's assessment, referred to in part above, was as follows: "96 Ms Fletcher was an impressive witness. She was careful and tried to do her best to answer the questions put to her. Clearly her recollection of some of the events was impacted by the head injury that she sustained in the incident and its after-effects, which included ongoing headaches and symptoms of post traumatic stress disorder (PTSD). 97 I do not accept Ms Fletcher's evidence of the conversation with Mr Keeys on the topic of 'double handling' of the bales for reasons which I will return to. 98 Assessing Ms Fletcher's evidence in context, I do not accept that Ms Fletcher acted contrary to her training by testing the 2 bales placed next to the partially constructed stack. I accept her evidence that she had been trained in the general practice and that did not involve testing bales at the face of a stack. I accept her evidence that she had not been in a similar situation before the day of the incident where untested bales were placed at the face of a partially constructed stack. I accept her evidence that she had not been instructed that she was prohibited from testing bales at the face of the stack or that it was dangerous to do so. 99 Ms Fletcher was not trained on the Hay Stacking TD and did not know what safety measures the FEL operators were required to take. This included the direction not to work within 1.5m from the edge of a stack. She had not been involved in TBTs relating to tasks at the mill, including the August 2019 TBT relating to the dangers posed by falling bales. 100 I accept Ms Fletcher's evidence that the realisation that she made a mistake on the day of the incident was one made in hindsight, by reference to the bales falling on her. I am satisfied that Ms Fletcher's acceptance of the fact that it was dangerous to test bales at the face of a stack was also informed by hindsight. 101 I accept Ms Fletcher's evidence that she tested the 2 bales next to the partially constructed stack because they had not been tested and that was the job that she was there to do. I am satisfied that she did so without realising the danger posed by the partially constructed stack. I am satisfied that Ms Fletcher did not act in contravention of a known safe work procedure. 102 In all other respects, I accept her evidence."
16. The appellant accepted the judge's assessment of Ms Fletcher as an impressive witness, [78] and accepted that the general fallibility of human memory was exacerbated in her case by her head injury, [79] but relied upon what was described as "the preponderance of contrary evidence about what moisture testers were taught at the feedlot".
17. As will be noted shortly, in a passage on which the appellant sought to rely, the judge stated: "269 For the reasons given, this was the critical instruction not to test bales at the face of a stack being constructed on a pad, that was not given to Ms Fletcher and led to the incident. The FEL operators who gave evidence accepted that this was a critical safety instruction because bales might fall and injure the worker conducting the moisture testing."
18. However, the suggestion that the judge ignored contrary evidence, including that of the frontend loader operators which was described as "directly antithetical to that of Ms Fletcher", ignored the finding that they were given instructions which were not given to Ms Fletcher.
19. Moreover, Mr McKenna, who was one of two frontend loader operators, continued unloading the truck on the day in question, although he did not know where Ms Fletcher was.
20. Appeal ground 2 must be rejected.

Ground 3 - Breach - safe work procedure for moisture testing and hay stacking

1. The trial judge dealt with particulars 12(b) and (c) together. The former related to failure to develop, implement and enforce a safe work practice for moisture testing, the latter for hay stacking. Clearly the requirements were related, and there is no challenge to the judge adopting that approach. As he explained: "255 Following the incident, the defendant developed and implemented the Hay Testing Manual and the Hay Stacking Manual. The requirements of each Manual overlapped to a significant extent because they were both directed at eliminating or minimising the same risks; that is, the risk of a worker being struck by falling bales or being stuck by a FEL. 256 The effect of the prosecution's pleaded case was that it was reasonably practicable for the defendant to have introduced the Hay Testing Manual and the Hay Stacking Manual prior to the incident. … 262 Each of the matters pleaded as necessary content of the moisture testing safe work procedure in [12(b)(i)-(viii)] of the Summons were included in the Hay Testing Manual introduced by the defendant on 19 March 2020. 263 Each of the matters pleaded as necessary content of the hay stacking safe work procedure in [12(c)(i)-(ix)] of the Summons were included in the Hay Stacking Manual introduced by the defendant on 19 March 2020."
2. Ground 3 was expressed in the following terms: "The primary judge erred in finding beyond reasonable doubt that it was reasonably practicable for the appellant to have introduced SWP's for moisture testing and hay stacking prior to the incident, incorporating the matters provided for by sub-particulars 12(i)-(viii) and 12(i)-(ix), and that this failure was a breach of duty under s 19 of the WHS Act (J[285])."
3. This "error" was said to be "premised on" nine matters, many of which replicated the complaints made about the finding as to risk assessment, which have been addressed above. For example, it was submitted that neither particular (b) nor (c) required the safe work procedure to be "documented". For reasons already explained, this was a pleading point without substance. It meant in effect that the "general practices" adopted by the appellant constituted adequate compliance with its health and safety duty. It was an essential part of the prosecution case that the failure to have formulated work safety procedures with appropriate detail and in a manner which allowed them to be used for informing workers and training them in their tasks created the risk which in fact materialised. Ground 3(a) is rejected.
4. A second, and specific matter, identified as ground 3(h), was a failure to "recognise" that nearly all of the sub-particulars relied upon "were not directed towards the pleaded risk". In relation to particular 12(b), the submission involved the proposition that only the following sub-particular was related to the "pleaded risk", namely: "(iii) workers are not to undertake moisture testing at the face of a stack that is being constructed on the pad."
5. In contrast to ground 3(a), which relied upon the absence of the express reference to a "documented" safe work practice, ground 3(h) read words of confinement into the stated risk. The proposed safe work practice for moisture testing was pleaded as including the following elements: "(i) The Mill Supervisor (or delegate) is to determine where the hay should be unloaded and tested before being stacked onto a pad; (ii) Moisture testing is only to take place when all bales had been unloaded from the truck and no machinery is operating in the vicinity of the unloaded bales, in particular FELs; (iii) Workers are not to undertake moisture testing at the face of a stack that is being constructed on the pad; (iv) Workers must not be in the vicinity of the FEL while it is unloading or stacking hay; (v) All bales are to be moisture tested prior to the FEL commencing to form the stack on the pad; (vi) The moisture-tester is to leave the area before the FEL commences forming the stack on the pad; (vii) If access is required to the FEL operating area, pedestrians must get visual and/or verbal approval from the FEL operator before doing so. The FEL must cease operation while pedestrians are in the area and resume operations only after receiving confirmation that all pedestrians have left the area; (viii) Appropriate Personal Protective Equipment is to be worn, including a high visibility shirt [or] vest."
6. The particularised risk was not limited to where, or why a bale might fall on an operator conducting moisture testing. It could fall (i) from the truck, even before unloading commenced if a rope or tarpaulin were removed and the stack was insecure; (ii) during unloading of the truck; (iii) during movement of the bales on a frontend loader during the creation of the stack, or (iv) from a partly constructed stack. It is self-evident that all of the particulars were relevant to the particularised risk.
7. Similar particulars were identified in relation to the task of stacking hay bales. Ground 3(h) identified six of the nine sub-particulars as irrelevant. It is not necessary to set them out: the same reasoning as in relation to particular (b) applies: that aspect of ground 3(h) must be rejected.
8. One related matter should be dealt with in this context. Ground 3(g) alleged that the trial judge failed "to address the matter identified in particular 12(c)(v)", which was one of the particulars not designated irrelevant. It stated: "(v) The FEL operator is to unload the bales and place them on the ground, away from the pad, in stacks to a maximum of three-high for moisture testing".
9. As noted above, the judge dealt with these elements of the safe work procedure by reference to the principles they adopted, rather than discussing each item separately. Nevertheless, he dealt expressly with particular 12(c)(v) in the following passage: "260 By separating the tasks, the risk of a worker coming into contact with a falling bale was minimised. There may have been some remaining risk of a stack of 3 bales falling onto a worker while moisture testing was taking place, but it was very small. The risk of a worker conducting the moisture testing being struck by a FEL was eliminated. In other words, by separating the tasks, the process was made safer."
10. Ground 3(g) must be rejected.
11. Grounds 3(b) and (c) reiterated the challenge to the finding concerning Ms Fletcher's evidence of her training and failing to address evidence of the appellant's "general practice": grounds 3(b) and (c). These issues have been sufficiently dealt with and do not demonstrate error.
12. Ground 3(d) stated that the judge considered whether the pleaded particular was "possible" rather than "reasonably practicable". Reference was made to 20 paragraphs in the judgment, from [266] to [285]. The premise of the ground is denied by the express finding at [285], in the following terms: "285 Taking into account all of these matters, I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to have introduced SWPs for moisture testing and hay stacking prior to the incident, incorporating the matters provided for by sub-particulars 12(i)-(viii) and 12(i)-(ix)."
13. Nor did the trial judge misunderstand the distinction, stating: "208 The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks, if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] (Gaudron J). 209 The words 'reasonably practicable' indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] (French CJ, Gummow, Hayne and Crennan JJ)."
14. As the appellant conceded in reply, at no point in the judgment did the trial judge use the term "possible" to characterise the steps which should have been taken prior to the accident, but suggested that "that is the effect of his Honour's analysis". [80] Ground 3(d) is without substance. The written submissions in support of the ground did not advance the case for the appellant, [81] which was not further articulated in oral submissions. The ground must be rejected.
15. Finally with respect to ground 3, it was said that the trial judge had ignored the prosecutor's failure "to call evidence on the utility and cost of developing a manual that contained each of the pleaded sub-particulars": ground 3(f). It is true that no specific evidence was called as to cost, but the particulars were taken from two documents prepared by the appellant, the Hay Testing Training Manual and the Hay Stacking Training Manual. The appellant noted that "[t]he only fact proved was that they were completed about one month after the incident". [82]
16. The "premise" of the challenge appears to have been an observation of Gaudron J Slivak v Lurgi (Australia) Pty Ltd [83] that "to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk". There is no reason to doubt the correctness of that proposition, which was echoed by Callinan J, who observed that to determine what might be "unreasonable in the whole circumstances … involves … the importation of notions of expense, time and trouble …". [84] However, it does not follow that each of the elements will be in dispute in every case.
17. It is unsurprising that there appears to have been no reference to cost as a relevant consideration in the oral and written closing submissions of either party. The development of safe work procedures, as in fact occurred within a reasonably short time after the incident, provided a sufficient factual basis for the judge's acceptance that what was done was reasonably practicable. Indeed, it is difficult to imagine any other conclusion. Ironically, the primary systemic defence raised by the appellant was that what needed to be done was entirely consistent with its own general practices. To that the prosecutor replied that the practices were dependent upon verbal communication, were ad hoc and for that reason inadequate. Recording the general practices (as alleged to have been followed) gave rise to no realistic inference that such a step was not reasonably practicable. There was no error in the judge being satisfied beyond reasonable doubt as to that element of the offence.
18. With respect to the utility of the steps required, it is a matter of common understanding that ad hoc directions given by different people at different times will lead to errors and omissions which should not arise if there is a clear set of written instructions to which those responsible for training others are required to refer and adhere. The issue of inadequacy of the general practice has been addressed above. Ground 3(f) must be rejected.

Ground 4 - Breach - adequate information, training and instruction

1. Ground 4 read as follows: "4 The primary judge erred in finding beyond reasonable doubt that it was reasonably practicable for the appellant to have provided training to its workers on the content of the Hay Testing Manual and the Hay Stacking Manual prior to the incident, and that this failure was a breach of duty under s 19 of the WHS Act (J[295]). This error was premised on: (a) the errors set out at appeal ground 2 and 3 above, in that if there was no failure in respect of those measures, there could be no concomitant failure to train or instruct in respect of those measures; (b) the erroneous finding that Ms Fletcher's on the job training was inadequate: J[287]."
2. Ground 4 related to particular (d). The judge's reasoning in that regard appears in the following passage: "286 There were failures in the defendant's WHS system when it came to the task of moisture testing because it was not identified as a separate task. There was no SWP for the task of moisture testing before the incident, notwithstanding that the workers doing that task were at risk of being struck by a FEL or by a falling object. 287 For the reasons given, the on-the-job training of Ms Fletcher on the task of moisture testing was inadequate. 288 There was no PRC assessment specific to the task of moisture testing. 289 There was no independent assessment of Ms Fletcher's ability to undertake the task of moisture testing. Whereas her other tasks were independently assessed as part of the Task Training aspect of the defendant's WHS system. 290 As an administrative worker, Ms Fletcher was not included in TBTs conducted by the mill department that provided safety information relevant to the moisture testing task, such as the TBT delivered on 12 August 2019. Further, she was not trained in the 'Take 5' Procedure that may have equipped her to deal better with the unique situation that she was presented with. 291 Ms Fletcher was not trained on the Hay Stacking TD or the task generally. 292 The introduction of the Hay Testing Manual or the Hay Stacking Manual would not have had any impact on the safety of the task unless the relevant workers were trained on those safe work procedures. 293 The defendant provided regular training to its workers at the feedlot on the tasks required to perform their roles. It had a dedicated WHS department and was capable of providing training on the Hay Testing Manual and the Hay Stacking Manual. 294 The training could have been provided at minimal cost and inconvenience to the defendant. 295 I am satisfied beyond reasonable doubt that it was reasonably practicable for the defendant to have provided training to its workers on the content of the Hay Testing Manual and the Hay Stacking Manual prior to the incident."
3. As the respondent submitted, ground 4, in so far as it relied upon "errors" identified in pars (a) and (b) was incoherent. The proposition that Ms Fletcher's on the job training was adequate was expressly rejected by the trial judge and the inadequacy of the training was an important factor in the judge's acceptance particular (d). Whatever the intent of the pleading, no error has been identified in the judge's finding with respect to particular (d). Ground 4 must be rejected.

Ground 5 - Causation

1. Again, because the formulation of the ground is not entirely clear, it is convenient to set it out in full: "5 Further, and in the alternative to Grounds 2-4 above, the primary judge erred in finding beyond reasonable doubt that the appellants conduct by failing to undertake a risk assessment, failing to develop and implement a safe work procedure for the task of moisture testing and hay stacking and to train its workers on the safe work procedures was a significant or substantial cause of exposure to the risk of serious injury or death to which Ms Fletcher was exposed (J[306]-[311]). This error was premised on: (a) an incorrect application of established principles on causation, particularly those set out at J[222], [223] and [225]; (b) an incorrect finding of fact (J[169], [258(a)] and J[310]) that Ms Fletcher had not received training that it was dangerous to conduct moisture testing close to a partially constructed stack; (c) an absence of evidence to support the finding at J[311]."
2. The judge stated, with respect to element 4, that the relevant principles to be applied were not in dispute and have been set out at [222]-[225]. [85] There was indeed no challenge to the principles to be applied, but rather an allegation of "incorrect application" of the principles. It therefore remains necessary to identify the principles. Without the references to authority, the statement of principles was as follows: "222 The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury…. 223 The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter…. 224 Regard must be had to the scope and objects of the Act…. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed …. 225 A finding of causation requires a backward-looking analysis of what actually occurred in order to attribute liability for a criminal offence…."
3. The application of those principles appeared at [306]-[311] in the following terms: "306 I am satisfied beyond reasonable doubt that Ms Fletcher was exposed to a risk of serious injury or death and that the defendant's conduct by failing to undertake a risk assessment, failing to develop and implement a safe work procedure for the task of moisture testing and hay stacking and to train its workers on the safe work procedures was a significant or substantial cause of exposure to the risk for the reasons that follow. 307 First, the defendant knew that the risks associated with the task of moisture testing included a worker being struck by a falling bale or being stuck by a FEL. The defendant was required to undertake a risk assessment by the Regulations and the HIRA Procedure. It failed to do so because it did not identify moisture testing as a separate task posing those risks. The defendant knew what the relevant control measures were because they were incorporated to some extent in the general practice. I am satisfied that if the defendant had conducted a risk assessment on the task of moisture testing in accordance with the HIRA Procedure that it would have identified that there was no Task Description for the task and that it would have taken steps to develop and implement a safe work procedure for that that task. 308 Second, the defendant's failure to identify moisture testing as a separate task led to it not being incorporated into the defendant's Safety Training Program. It was not the subject of PRC training or any assessed Task Training, as other identified tasks, such as hay stacking, were. 309 Third, the post-incident SWPs addressed the ad hoc nature of the buddy system training on the general practice, by standardising that training. The post-incident procedures filled the gaps in Ms Fletcher's training that were identified in the evidence. They contained a clear prohibition against testing bales in a partially constructed stack and introduced stricter isolation controls that would have removed Ms Fletcher from the source of the pleaded risk as well as the risk of being struck by a FEL. 310 Fourth, the defendant failed to provide adequate training to Ms Fletcher. The evidence established that she was trained on the general practice but not that it was dangerous to conduct moisture testing close to a partially constructed stack. She was not trained on the Hay Stacking TD, the Take 5 Procedure or included in relevant TBTs conducted by the mill department. She was not assessed on her competence to conduct moisture testing safely in accordance with the Task Training procedures of the defendant's WHS system. She did not know what to do when faced with an unusual scenario and had not been trained on the risk that it posed. 311 Finally, the failures in Ms Fletcher's training led her to approach and moisture test the 2 bales placed next to the partially constructed stack by Mr McKenna. At that point she was exposed to the pleaded risk."
4. The submissions in support of ground 5 identified no relevant error: they simply alleged that the conclusion was wrong because particular facts had been wrongly found, or not found, as identified in earlier submissions, including that Ms Fletcher had not received adequate training.
5. In the alternative, two further submissions were articulated. The first was that, in rejecting the element of the prosecution case that there had been a failure to provide adequate supervision, the judge had stated that the incident was a "one-off" caused by a breakdown in communication, that was Mr McKenna placing the stack of two bales in close proximity to the partly constructed stack, and gaps in Ms Fletcher's training. The submission was that the trial judge's finding that "the incident was caused by several factors was inconsistent with an alleged gap in Ms Fletcher's training being a significant or substantial cause of her exposure to the risk".
6. The submission was without substance. First, the fact that Mr McKenna may have placed the bales in an inappropriate place did not demonstrate that the inadequacy in Ms Fletcher's training was insubstantial or insignificant in exposing her to the relevant risk. The risk existed wherever the bales had been placed, although if placed further from the stack, the risk might not have materialised. Otherwise, the various elements identified in the passage set out above were not independent of Ms Fletcher's lack of adequate training, but explained the causes of that inadequate training.
7. Finally, the appellant asserted that causation was not established because "no evidence was lead from Ms Fletcher as to whether on the date of the incident she would have complied with such a warning not to moisture test at the face of a stack". [86] The same issue, namely what Ms Fletcher would have done had she been taught about the risk, was described as "speculative". [87]
8. The submission was misconceived. The appellant's duty was to take reasonably practicable steps to eliminate or minimise the pleaded risk. Whether a particular worker, faced with the circumstances which materialised on the day, would follow instructions, or disobeyed them, is irrelevant. If the thrust of the submission turned on the alleged adequacy of the appellant's practices, or the alleged sufficiency of Ms Fletcher's awareness of the risk, then the premises have been rejected. Ground 5 must be rejected.

Ground 6 - Payment of moiety

1. Although ground 6 was dealt with in the appellant's written submissions under the heading "sentence", the impugned order related only to the manner in which the fine was to be dealt with. In the sentencing judgment, the judge determined that the penalty for the offence should be a fine of $300,000. There is no challenge to that order. However, the prosecutor sought an order that 50% of the fine (a moiety) be paid to it pursuant to s 122(2) of the Fines Act 1996 (NSW). That provision applies where the statute authorising the imposition of a fine does not make provision for its application when recovered, and where the prosecutor is not a police officer.
2. There was no dispute that the section was engaged in the present case. Nor was there any dispute that the court was exercising the jurisdiction pursuant to s 122(2), being the court "before which proceedings are taken to recover any such fine". That court is empowered to direct that such portion of the fine, not exceeding one-half, is to be paid to the prosecutor. The judge stated: "86 The offender submitted that an order pursuant to s 122(2) Fines Act 1996 involves the exercise of a discretion that must be exercised judicially and on the basis of some evidence but did not otherwise oppose the order being made."
3. In considering whether to order payment of a moiety, the judge noted that in the work, health and safety context there has been a practice of payment to private informers, "such as the secretary of a trade union, where evidence is given that the money will be remitted to the union and used for WHS purposes": at [90]. The judge referred to an observation of Boland J that, "the Court is not required to approve of the way the money will be spent, so long as it is to be applied for a lawful purpose". [88] The judge also noted an observation of mine in Nash v Silver City Drilling (NSW) Pty Ltd [89] to the effect that "[h]ow the moneys are accounted for within the government should be of no concern to the offender or the court".
4. Finally, the judge stated: "92 Fourth, if I am wrong on the last point, I am satisfied that the prosecutor, as the regulator defined in clause 1 of Schedule 2 of the Act, will lawfully apply the money recovered to: (a) the costs and expenses of the investigation of the matter before the Court, for which there is no statutory power to recover: Secretary Department of Planning and Environment v Boggabri Coal Pty Ltd [2014] NSWLEC 154 at [62] (Preston CJ); and (b) exercising its functions provided for by s 152 of the Act."
5. The appellant's challenge was expressed in the following terms: [90] "The primary judge's decision was erroneous in the House v R (1936) 55 CLR 499 sense because of a failure to take into account a material consideration being whether the making of that order was consistent with the statutory purpose of the section.
6. The appellant's written submissions identified the purpose of the provision (as revealed by the exclusion of police officers) as providing financial support and thus encouragement to those who are not duty bound to enforce laws and compensated by the State for doing so. The appellant submitted that as the prosecutor was the Secretary of the Department (defined in Sch 21 of the Act as the "regulator") whose functions are defined in Pt 8, Div 1 as including, monitoring and enforcing compliance with the Act and conducting and defending proceedings under the Act, its position was "in all material respects identical to the position of a prosecutor who is a police officer". [91]
7. The force of that submission is diminished by three considerations. First, the apparent anomaly underlying the power to pay a moiety to a public officer in a law enforcement agency where the fine itself will be paid to the State which is responsible for maintaining the law enforcement agency, was alluded to in Nash at [74]. It had also been identified in Downey v Acting District Court Judge Boulton (No 5). [92] In Nash, after referring to Downey, I observed: "73 In short, it appears that the purpose of payment of a moiety to a common informer was, historically, to provide an incentive to encourage law enforcement by private proceedings, the payment being either from public funds or from the penalty. However, it is by no means clear that the historical purpose is to be found in the current provision."
8. Secondly, the submission is formulated in terms which would have the effect of imposing a constraint on the availability of the power to order a moiety in prosecutions under the Work Safety Act in terms which are not consistent with the language of the provision. Although the provision was to be found in the predecessor, namely the Fines and Penalties Act 1901 (NSW), s 5(3), the fact that it was reenacted in 1996, with only the limited exception, militates against reading the power down so as not to apply to any officer exercising a statutory function of enforcing the law, or a particular statute. However, unless the statute is to be read down in that way, it is not clear how the apparent anomaly is to be applied as a mandatory consideration by the court invited to exercise the power.
9. Thirdly, the submissions before the trial judge on sentence did not raise the issue in these terms. The written submissions for the prosecutor dated 18 October 2023 merely sought an order that 50% of the fine imposed be paid to the prosecutor. Such an order was no doubt seen as a matter of standard practice in these cases, which it appears to be. In written submissions in response dated 23 October 2023, the appellant conceded the power, noted that it involved a discretion and that the prosecutor had sought such an order without explaining why it was entitled to the maximum amount to be paid. The appellant then stated that "[i]f and when the prosecutor explains why it is entitled to 50% of any penalty, then the defendant will address that issue". [93]
10. In the course of oral submissions at trial, the appellant made the point that it was not opposing the proposed order, but that the prosecutor should have to justify it, rather than rely on a presumption, in the absence of evidence. [94] The reasoning of the judge set out above was, in effect, a rejection of the proposition that such an order could not properly be made in favour of a body exercising a statutory function, as an agent of the State. To the extent necessary, the judge accepted that the money would be applied to "the costs and expenses of the investigation of the matter before the court, which was not otherwise recoverable, implicitly by way of costs". Further, the money would lawfully be applied in the exercise of the regulator's statutory functions generally.
11. To the extent that the appellant submitted (and was entitled to submit) that a payment could not be made under s 122 of the Fines Act in favour of the regulator under the Work Safety Act, that submission should be rejected. Further, if the anomaly created by that circumstance was said to be a mandatory consideration in the exercise of the Court's discretion, that submission should also be rejected. It was either a constraint on the exercise of the power or it was an inherent feature of the power which did not in terms require consideration by the court exercising the power.
12. Finally, if the judge were entitled to take into account whether the money would be expended for a proper purpose within the legislative scheme, although there is no clear limitation on purpose, accepting the expectation that the money would be spent either in recouping the expenses of the investigation of the matter giving rise to the proceeding, or more generally for the purposes of enforcing the Work Safety Act, it is evident that the judge took those matters into account. There was no evidence to suggest that the money would not be applied to such purposes and the judge was entitled to assume, without evidence, that the money would be so applied.
13. Finally, the appellant made no submission as to the amount of the fine which could or should be paid; and it did not oppose the order providing for such a payment. It may be doubted that it has any interest in opposing the order made. In any event, it has failed to demonstrate error in the making of the order and ground 6 should be rejected.

Orders

1. The appeal having been unsuccessful, the Court should make the following orders: 1. Dismiss the appeal from the judgment and orders made in the District Court on 19 September 2023 and 8 November 2023. 2. Order that the appellant pay the respondent's costs in this Court.
2. N ADAMS J: I agree with Basten AJA.

Endnotes

1. SafeWork NSW v JBS Australia Pty Ltd (No 3) [2023] NSWDC 382 ("liability judgment").
2. SafeWork NSW v JBS Australia Pty Ltd (No 4) [2023] NSWDC 473.
3. Work Safety Act, Sch 2, cl 1(1)(a) and (2).
4. Criminal Procedure Act, ss 170(3) and 245.
5. In fact, s 7(4) is not restricted to appellants under s 5(1).
6. Courts Legislation Amendment Act 2000 (NSW), Sch 3[1].
7. (1998) 45 NSWLR 661 at 663-665.
8. Histollo at 665D-F.
9. (2018) 264 CLR 541; [2018] HCA 30 at [29] (Edelman J agreeing at [153]).
10. Federal Court Act, ss 24, 25, 27 and 28.
11. (2003) 214 CLR 118; [2003] HCA 22 at [21]-[24].
12. SZVFW at [29].
13. Fox v Percy at [24] (Gleeson CJ, Gummow and Kirby JJ).
14. (1984) 153 CLR 521; [1984] HCA 7.
15. (1979) 39 FLR 315 (McGregor, Lockhart and Brennan JJ).
16. Chamberlain (No 2) at 529.
17. (1905) 2 CLR 593 at 601; [1905] HCA 22.
18. Chamberlain at 611-612.
19. Ah Yick at 601.
20. Fox v Percy at [25].
21. (2016) 93 NSWLR 338; [2016] NSWCCA 37 (Bathurst CJ, Hidden and Davies JJ).
22. [2022] NSWCCA 212 (Macfarlan JA, Hamill and Cavanagh JJ agreeing).
23. (2011) 242 CLR 573; [2011] HCA 10.
24. Lacey at [50] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J dissenting at [94]).
25. Lacey at [51], referring to CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67, 76 at [111].
26. Lacey at [53].
27. Lacey at [62].
28. (1936) 55 CLR 499 at 504-505; [1936] HCA 40.
29. Referred to in the evidence and the liability judgment as "FELs".
30. Liability judgment at [192].
31. Liability judgment at [3].
32. Liability judgment at [193]-[225].
33. Liability judgment at [227].
34. Liability judgment at [43], [233].
35. Liability judgment at [43], TBT record form (e).
36. Liability judgment at [14], [233].
37. Liability judgment at [15].
38. Liability judgment at [306]-[311].
39. CA Tcpt, 30/09/24, p 3(32).
40. CA Tcpt, p 3(35).
41. See also appellant's written submissions, par 1.4.
42. Liability judgment at [98], [167], [170] and [171].
43. Liability judgment at [173], [258(b)] and [287].
44. Liability judgment at [242] and [244].
45. Liability judgment at [307]-[310].
46. CA Tcpt, p 24(48)-25(28); appellant's written submissions, par 4.18.
47. Appellant's written submissions, par 4.3.
48. Tcpt, 31/07/23, p 45(30).
49. Tcpt, p 46(40).
50. Tcpt, 04/08/23, p 413(30)-(50).
51. Tcpt, p 417(16).
52. Appellant's written submissions, par 4.5.
53. Referred to as the "Hay Stacking TD".
54. Tcpt, 02/08/23, p 240(50)-241(3).
55. Appellant's written submissions, par 4.27.
56. Tpct, p 199(20).
57. Tcpt, p 241.
58. Tcpt, 01/08/23, p 134(39)-135(18).
59. Tcpt, p 141(10).
60. Tcpt, 01/08/23, p 141(37).
61. Liability judgment at [90] and [93].
62. Liability judgment at [32].
63. Tcpt, p 124(13).
64. Tcpt, p 123(48)-124(6).
65. Liability judgment at [289].
66. Liability judgment at [89]; appellant's written submissions, par 4.32.
67. Appellant's written submissions, par 5.3(a).
68. Liability judgment at [245]; appellant's written submissions, par 5.5.
69. Appellant's written submissions, par 5.6.
70. Appellant's written submissions, par 5.9.
71. Appellant's written submissions, par 5.7.
72. Appellant's written submissions, par 5.10.
73. Appellant's written submissions, par 5.10.
74. Appellant's written submissions, par 5.15.
75. Appellant's written submissions, par 8.12.
76. Appellant's written submissions, par 5.15(a)-(d).
77. Liability judgment, [229].
78. Appellant's written submissions, par 4.14.
79. Appellant's written submissions, par 4.18.
80. Appellant's written reply, 23 September 2024, par 5.4.
81. Appellant's written submissions, par 6.2(d).
82. Appellant's written submissions, par 6.9.
83. (2001) 205 CLR 304; [2001] HCA 6 at [53].
84. Slivak at [89].
85. Liability judgment, [305].
86. Appellant's written submissions, par 8.9.
87. Appellant's written submissions, par 8.10.
88. Geoff Derrick v ANZ Group Ltd (No 2) [2005] NSWIRComm 145 at [23]; Sentencing judgment at [90].
89. [2017] NSWCCA 96 at [74] (Hoeben CJ at CL and Walton J agreeing).
90. Appellant's written submissions, par 9.4.
91. Appellant's written submissions, par 9.10.
92. (2010) 78 NSWLR 499; [2010] NSWCA 240 at [64].
93. Written submissions, par 10.2.
94. Tcpt, 25/10/23, p 14(5)-(50); p 17(22)-(33); p 25(36)-27(1). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2024