JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales

CATCHWORDS: Occupational Health & Safety - Appeal against conviction and sentence - Employee suffered serious injuries when cleaning rotating rollers on a machine - Conviction for failure to provide and maintain a safe system of work and failure to provide adequate instructions to employees - Whether particulars of the charge put appellants on notice that system of work was unsafe - Whether system of work unsafe because it allowed for the invovlement of multiple employees - Whether trial judge's approach to sentencing was correct - Held - Particulars of the charge broad enough to put appellants on notice of what was the unsafe system - System of work unsafe because it allowed for the invovlement of multiple employees - Trial judge erred in sentencing - Two entities were in partnership - Essentially in law one employer entity - Partnership - Application of the principle of totality - Resentencing - Penalty imposed - Appeal upheld in part - Costs - Section 8 of the Occupational Health & Safety Act 2000

Criminal Appeal Act 1912 (NSW) LEGISLATION CITED: Industrial Relations Act 1996 (NSW) Occupational Health & Safety Act 2000 (NSW) Partnership Act 1892

Abalos v Australian Postal Commission (1990) 171 CLR 167 Abboud v the State of New South Wales (Department of School Education) (1999) 92 IR 32 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149 Inspector Clothier v Malcolm McIntyre trading as Corambie Pastoral Company and another [2007] NSWIRComm 40 Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156 Inspector Jones v JT & LC Tippett Pty Ltd & Anor (No 2) [2007] NSWIRComm 306 Inspector Jones v JT & LC Tippett Pty Ltd and Anor [2007] NSWIRComm 26 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Lowe v The Queen (1984) 154 CLR 606 CASES CITED: Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253 O'Sullivan v Crown in Right of State of New South Wales (Department of Education and Training) (2003) 128 IR 158 Port Macquarie Golf Club Limited v Stead and Another (1996) 64 IR 53 Rosenberg v Percival (2001) 205 CLR 434 State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306 Swift Placements Pty Limited v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 T & M Industries Pty Ltd v WorkCover Authority (NSW) (Inspector James) (2007) 62 IR 396 Trade Practices Commission v Cue Design Pty Ltd and Cue & Co Pty Ltd (1996) 85 ACrimR 500 Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 Warren v Coombes and Another (1979) 142 CLR 531 WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd (2006) 156 IR 341 WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2000) 105 IR 81 WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119

HEARING DATES: 13 June 2008 and 26 June 2008

APPELLANTS Mr K G Bennett of counsel Solicitor: Mr P Simpson Belbridge Hague Solicitors & Notaries LEGAL REPRESENTATIVES: RESPONDENT Mr P M Skinner of counsel Solicitor: Ms J Smith Carroll & O'Dea Solicitors

CORAM: WALTON J, Acting President HAYLEN J STAFF J

JT & LC TIPPETT PTY LIMITED AND RD & LF TIPPETT PTY LIMITED V WORKCOVER AUTHORITY OF NEW SOUTH WALES

Application by JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited to appeal against judgments of Justice Backman given on 14 February 2007 and 14 December 2007 in matters Nos IRC 2587 of 2005 and IRC 2588 of 2006

1 This is an appeal pursuant to s 196 of the Industrial Relations Act 1996 (NSW) ("Industrial Relations Act") and s 5AA(i)(a) of the Criminal Appeal Act 1912 (NSW) ("Criminal Appeal Act") by JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited ("the appellants") from two judgments of Backman J. 2 On 14 February 2007 the appellants were found guilty of a breach of s 8(1) of the Occupational Health & Safety Act 2000 (NSW) ("the Act"): Inspector Jones v JT & LC Tippett Pty Ltd and Anor [2007] NSWIRComm 26. On 14 December 2007, her Honour sentenced the appellants for the breach of the Act: Inspector Jones v JT & LC Tippett Pty Ltd & Anor (No 2) [2007] NSWIRComm 306. 3 The appeal is essentially in two parts, one issue goes to the question of conviction, which includes whether her Honour went beyond the particulars, the second issue is in respect of the sentence and fines imposed by her Honour. 4 The principal issue in this appeal is whether the particulars of the charge were broad enough to put the appellants on notice that the system of work was unsafe because it did not provide for multiple employees to be involved in the cleaning of the rollers of the Windrower. In our opinion, this issue should be resolved in the affirmative. The resolution of this issue gives rise to a further issue which is whether there was a sound basis to convict the appellants because the system of work was unsafe because it allowed for the involvement of multiple employees (the liability issue). In our opinion, this issue should also be resolved in the affirmative. The final issue is whether her Honour's approach to sentencing was correct. In our opinion, this issue should be resolved in the negative. 5 The appellants pleaded not guilty to one charge under s 8(1) of the Act. The charges alleged an offence took place on 19 June 2004 at a farming property known as Whroo located at 5 Balranald Road, Kyalite, New South Wales. 6 The appellants were each found guilty of one charge brought against them. The charge was: The Defendant, on the said date at the said site, contrary to section 8(1) of the Occupational Health & Safety Act 2000 (NSW), failed to ensure the health, safety and welfare at work of all the employees of the Defendant employer, and in particular, Anthony Desmond Butcher. The Defendant failed to provide and maintain a safe system of work for the cleaning of plant, being a "Grimme Windrower" harvester, in that a person could access moving parts of the plant while cleaning the rollers of the plant, thereby placing them at risk of injury. In particular, there was no adequate system of isolating the plant while the rollers were being cleaned. The Defendant failed to ensure that the rollers were adequately guarded. 7 The particulars of the charge were set out in the affidavit of Inspector Stephen Jones sworn 13 May 2005 and were as follows: 1. At all material times, JT & LC Tippett Pty Ltd (ACN 100 970 956) was a company incorporated in the State of Victoria whose registered office was at RSM Bird Cameron, 109 Lydiard Street, North Ballarat in the State of Victoria. 2. At all material times JT & LC Tippett Pty Ltd (ACN 100 970 956) was a trustee of a Trust known as the J & L Tippett Family Trust. 3. At all material times, RD & LF Tippett Pty Ltd (ACN 100 970 965) was a company incorporated in the State of Victoria whose registered office was at RSM Bird Cameron, 109 Lydiard Street, North Ballarat in the State of Victoria. 4. At all material times RD & LF Tippett Pty Ltd (ACN 100 970 965) was a trustee of a Trust known as the R & L Tippett Family Trust. 5. JT & LC Tippett Pty Ltd (ACN 100 970 965) jointly employed workers in the State of New South Wales trading under the name of Tippett's Scrub Hill Pastoral Co (ABN 17 499 421 802). 6. At all material times, the Defendant was an employer in the State of New South Wales. 7. At all material times, the Defendant operated a property known as "Whroo" located at 5 Balranald Road, Koraleigh in the State of New South Wales ("the site"). 8. The main business of the Defendant is the growing and harvesting of potatoes. 9. At all material times, the Defendant employed Anthony Desmond Butcher ("Butcher") as a farm hand. He had been employed by the Defendant since March 2000 on a permanent full-time basis. 10. On 19 January 2004 ("the day of the incident"), Butcher was working in his capacity as a farm hand and was engaged in the task of harvesting potatoes. Butcher drove a tractor which was connected to a potato harvester machine ("the harvesting machine"). 11. On the day of the incident, Butcher was driving the tractor with the harvesting machine behind him. Driving in front of Butcher was a tractor being driven by another employee of the Defendant, Tim Willie ("Willie"). Attached to the tractor being driven by Willie was a harvesting machine known as a Grimme Windrower ("the Windrower machine"). Driving alongside Butcher was a tractor being driven by another employee of the Defendant, Daniel Petersen ("Petersen"). Attached to the tractor driven by Petersen was plant known as a "Chaser Bin". 12. On the day of the incident butcher (sic), Willie and Petersen were harvesting potatoes. The process involved the Windrower machine travelling in front and slightly to one side of the harvesting machine driven by Butcher. The purpose of the Windrower machine was to loosen rows of potatoes and to remove the green leafy tops from the potatoes. The harvesting machine then followed behind and removed the loosened rows of potatoes and transferred the potatoes into the Chaser Bin (via a conveyor) while all the tractors travelled together in the same direction. 13. The Windrower machine has a series of rotating rollers ("the rollers") that dig into the earth loosening the dirt. On occasions, the rollers become blocked with dirt, debris and potato. When this occurs, the rollers must be cleared of debris manually by the operator. On the day of the incident, the rollers on the Windrower machine had become clogged on a few occasions requiring Willie to stop the tractor and clean the rollers. 14. The system of work prior to the incident for clearing blockages of the rollers was to turn off the PTO in the tractor to isolate power from the rollers in the attached Windrower machine. Once the power to the rollers was turned off, the employee was then required to remove the debris from the rollers by dislodging it with a metal bar that had been provided by the Defendant for that purpose. Depending on the blockage, the employee would sometimes use hands or other implements such as a crowbar or screwdriver to clear the blockage. Once the blockage was cleared, the employee would then re-engage the PTO and recommence harvesting. At the time of the incident, the PTO could only be turned off at the tractor. There was no interlock or guarding device present on the Windrower and no emergency stop button located anywhere on the Windrower machine. This procedure was not documented. 15. On the day of the incident, the rollers were blocked and required cleaning. Willie stopped the Windrower machine and got out of the cabin of the tractor. He approached the Windrower machine and climbed up onto the tractor. He approached the Windrower machine and climbed up onto the side of it so he could see the rollers. Willie started to clear the rollers with the metal bar. While this was happening, both Butcher and Petersen stopped their tractors, got out of their tractors and approached the Windrower machine. Willie asked Petersen to turn the PTO back on so that the rollers began to rotate. When that occurred Willie observed that there was still a significant amount of dirt and debris which had not been fully dislodged. Willie attempted to dislodge the debris while the rollers were rotating. Petersen, at one point, turned off the PTO, around which time both he and Willie noticed that Butcher had his foot caught in the nip-point of the rollers. 16. As a result of being caught in the rollers, Butcher sustained serious injuries and required time off work. 17. Prior to the incident, there was no guard on the rollers of the Windrower machine. Prior to the accident, there was no interlocking device which would have ensured that the removal of the guard would disengage the PTO. There was no emergency stop button the Windrower machine itself. 18. Despite the fact that cleaning the rollers was an essential task for the overall operation of the potato harvesting process, there was no formulated safe work method procedure for the task of clearing the rollers. The Defendant had not instructed or trained Butcher in relation to the specific hazard of the rollers. 8 The complete terms of the charges and particulars have been set out in light of the manner in which the appeal has been argued. 9 The proceedings before the trial judge involved the same charge for each appellant issued by Inspector Jones of the WorkCover Authority of New South Wales ("the respondent") against the appellants alleging offences under s 8(1) of the Act. The summonses arose out of the same set of facts. The appellants operate as partners trading as "Tippett's Scrub Hill Pastoral Co". At the time of the offences between five and 15 people were employed to work in the growing and harvesting of potatoes on a property known as "Whroo" at Kyalite in New South Wales. As a result of the drought in rural New South Wales, at the time of the hearing before the trial judge the number of employees has been reduced to two. 10 On 19 January 2004, Anthony Desmond Butcher, Timothy John Willie and Daniel James Peterson were employed by the appellants to harvest potatoes. Mr Willie drove a tractor to which was attached a potato harvester called a Windrower. The Windrower machine included webbing conveyers and rollers. The purpose of a roller known as the counter rotating roller (haulm roller) was to create an in-running nip point to grip haulm (potato foliage tops) and pass it forward and out on the ground. 11 During the course of the potato harvesting, the nip point area on the Windrower from time to time became blocked with dirt, debris and pieces of potato, which had to be cleared away. When this occurred, the tractor's Power Take Off (PTO) was disengaged and the debris cleared. At some point during 19 January 2004, Mr Willie recalled that the Windrower became blocked. He proceeded to clear the blockage with a crowbar. The PTO had been disengaged during this process. After he thought the blockage had been cleared, he asked Mr Peterson to put the PTO in gear to see if the roller turned. He put his foot on the roller in an attempt to, "bounce the stuff on the bottom roller", but his foot slipped. Mr Peterson, who was watching Mr Willie, turned off the PTO. Meanwhile, Mr Butcher had walked along the Windrower and climbed onto the machine. Neither Mr Willie, nor Mr Peterson say they were aware that Mr Butcher had climbed onto the machine. When Mr Butcher climbed onto the machine, he observed that a rear conveyor (the second web) had stopped moving and proceeded to put his left foot on the web. At that time, he assumed that the PTO had been disengaged. The web started to move and his foot became jammed between the main web and the haulm roller. Mr Butcher suffered serious injuries as a result of the accident, including crushed bones, dislocated left ankle, as well as torn muscles, sinews and ligaments on his left ankle. 12 As earlier set out, the two summonses charged that the appellants failed to provide and maintain a safe system of work for the cleaning of the Windrower harvester in that a person could access moving parts of the plant while cleaning the rollers of the plant, thereby placing them at risk of injury. Her Honour found this particular was made out. A further particular alleged that there was no adequate system of isolating the plant while the rollers were being cleaned. Her Honour found this particular was made out. The third particular was that there had been a failure to ensure that the rollers were adequately guarded. Her Honour found that it was not reasonably practicable for the appellants to have an adequate system of isolating the Windrower by the designing and fitting of an interlock guard. This part of the charge was dismissed. The summonses were particularised so as to refer to the alleged failure of the appellants to ensure the health, safety and welfare of its employees with regard to the cleaning of rollers on the Windrower machine, which was an essential task for the overall operation of the potato harvesting process. THE DECISION OF HER HONOUR Liability 13 The trial judge considered that Mr Butcher was at risk of being injured because he could access the nip point area of the Windrower whilst the componentry was operating because the PTO was engaged. The trial judge further noted that even when the PTO was engaged, an expert called by the appellants, Mr Sulman expressed the view in his report that due to the size and plurality of the components on the Windrower, significant momentum was nevertheless exhibited because of overrun. The trial judge concluded that it followed, therefore, that the risk to safety was extant even when the PTO was disengaged, although the period during which this could occur was unspecified in the evidence. Her Honour observed that the risk to safety was known to Mr Tippett, stating: [17] The risk to safety arising from access to the in-running nip point identified above was known to Mr Tippett before the accident to Mr Butcher. In his interview he nominated the various risks or hazards following a question he was asked regarding whether a risk assessment had ever been conducted on the machine. His responses are extracted below: A. We did a general risk assessment and we knew where the risks were regarding the operation of equipment and consequently this would have been referred to when training someone on how to use the equipment. Were these documented? A: No, this was done verbally as is the training. What risks were identified and how were these controlled? A: The risks on the machine are things like PTO shafts, chains and sprockets and moving parts and the reversing rollers which Anthony got caught in. These reversing rollers are inside the machine and requires a person to climb at least 1.5m to access them. You physically have to climb into the machine to get caught. The way to control this is to ensure that the equipment is turned off when people were required to access the rollers. The only other option is to put a guard over the top, however this would have no real value given you would have to take it off to clean the roller and therefore provides no real barrier. All other guards are in place as per the manufacturers specification and were in place at the time of the accident, these are in place at all times when the machinery is being operated. [18] The above responses suggest that the workers were required to access the rollers and other moving parts by climbing onto the machine and that the only available procedure for "controlling" the risks presented by the "reversing rollers" was to ensure that the PTO was disengaged beforehand. 14 The trial judge noted that the charges against both defendants particularised three alleged failures to ensure the safety of Mr Butcher, which were set out as follows: [19] The charges against both defendants particularised three alleged failures to ensure the safety of Mr Butcher. They are:

(i) a failure to provide a safe system of work for the cleaning of the Windrower, and;

(ii) a failure to provide an adequate system of isolating the rollers while they were being cleaned, and;

(iii) a failure to ensure that the rollers were adequately guarded. 15 Her Honour then proceeded to consider whether each of the failures was made out. The trial judge firstly considered Mr Tippett's record of interview and his evidence, concluding: [32] It follows from this evidence that there existed a basic, general procedure in relation to cleaning the Windrower at the property which, given the very serious risk to safety posed by the machinery, in my opinion was inherently flawed (an aspect to which I will return shortly). Nor was Mr Tippett able to articulate how the procedure was brought to the attention of farm workers apart from rather vague references to ongoing discussions with the foreman during which workers were told in general terms that the Windrower and its parts were dangerous, and that the machine should not be physically accessed if the PTO was engaged. More importantly the evidence does not reveal whether Mr Butcher was told about or instructed in the procedure. The evidence at its highest is that Mr Tippett "probably recollects" telling Mr Butcher that the rollers were dangerous but this recollection is not based on any actual recollection of instructing Mr Butcher. Rather his recollection is based on his knowledge of injuries suffered by unidentified workers in the potato harvesting industry generally and the potential hazards posed by farm machinery used in the industry such as the Windrower. In relation to Mr Tuck's role in safety matters and ensuring that employees were carrying on their jobs safely Mr Tippett could only say that he presumed and hoped Mr Tuck was making sure employees performed their work safely. Mr Tuck was not called to give evidence. 16 The trial judge then considered the evidence given by Mr Butcher during the proceedings, finding: [34] Mr Butcher's knowledge of the procedure and the extent of his instruction in relation to that procedure (the unblocking of the rollers on the Windrower), suggest that he had received little if any instruction on how to safely clean the rollers or if he had, it was a sufficiently long period before the accident for him to have forgotten it. 17 Mr Tippett's evidence was that the procedure was not documented, apparently because Mr Tippett regarded the farm workers as not well educated. 18 Her Honour concluded as follows: [39] As I earlier remarked the prevailing procedure for cleaning the rollers as outlined by Mr Tippett and put forward by him as a safe procedure, was inherently flawed. This is because in my opinion the procedure was not confined to one employee acting alone cleaning the rollers but allowed for the involvement of several employees. Had the procedure been confined to one employee the possibility of that employee being exposed to moving parts of the Windrower, specifically the in-running nip point between the main web and the haulm roller, was remote. With more than one employee involved, the procedure if correctly followed, entailed the employees climbing on to the machine to clean the debris from the rollers, climbing off the machine so the PTO could be engaged by whoever sat in the cabin of the tractor in order to check whether the blockage was cleared, and then climbing on again if the blockage had not been cleared. Unlike the employee acting alone (and who had to physically disengage and engage the PTO switch which was located in the cabin of the tractor) considerations such as expediency and convenience may well have taken precedence over a procedure that required both time and some inconvenience and was relatively easy to circumvent. Indeed this is precisely why Mr Willie in his evidence extracted above said he chose to ignore the prevailing procedure. 19 The trial judge also found that Mr Butcher did not receive sufficient instructions in relation to the procedure to enable him to perform his work safely. 20 The trial judge found, beyond reasonable doubt, that both appellants failed to ensure the safety of Mr Butcher by failing to provide and maintain a safe system of work for the cleaning of the Windrower (at [42]). 21 In relation to whether the defendant failed to ensure Mr Butcher's safety by failing to provide an adequate system of isolation while cleaning the rollers, her Honour stated: [46] ... Having found that the instructions given to Mr Butcher, if any, for cleaning the rollers were inadequate and exposed Mr Butcher to a risk to his safety, I find for the same reasons, beyond reasonable doubt, that the prevailing procedure for isolating the power (disengaging the PTO while clearing the rollers) and the limited instructions received by Mr Butcher also failed to ensure his safety. 22 Her Honour observed that most of the evidence in relation to the absence of an emergency stop button emerged in the defence case. The trial judge noted the evidence of Mr Sulman, the expert, that an emergency stop button like a trip device, would not have removed the risk to Mr Butcher's safety, created by the in-running nip point. This was because of the size and plurality of the Windrower's components would cause significant momentum when the PTO was disengaged resulting in overrun. After considering this and other evidence given by Mr Sulman and, in particular, the principles in Morrison v Powercoal Pty Ltd & Anor (2004) 137 IR 253, especially in respect of the element of causation in relation to an offence, her Honour concluded as follows: [56] The facts revealed by the evidence here, together with the application of the principles extracted from the judgment of Morrison v Powercoal compel the conclusion that the defendants failed to ensure Mr Butcher's safety by failing to provide an interlock device on either the tractor or the Windrower. This is so notwithstanding that the machinery was not designed to incorporate such a device and the device was not commercially available at the time of the offences. If the law were otherwise employers could with impunity place their employees at risk of injury on the basis that they cannot ensure, make certain or guarantee their safety. [57] There can be no doubt that this failure resulted in or caused a risk to Mr Butcher's safety when he assisted Mr Willie in cleaning the rollers on the Windrower on the day of the alleged offence. I therefore find that this particular has been made out by the prosecutor beyond reasonable doubt. 23 The trial judge then turned to consider whether the appellants failed to ensure that the rollers were adequately guarded. The evidence disclosed that the rollers were not guarded. Her Honour observed that in order to clean the rollers it was necessary to gain access to them, observing that the risk to safety arose because of the necessity to access the rollers for the purpose of cleaning them. Any guard would have had to be removed to enable the employees to clear any blockage. Her Honour concluded, given these causative facts, there could be no nexus between the failure to ensure safety as particularised and the risk to safety to Mr Butcher, which arose while he was cleaning the rollers. The procedure would necessarily have required the guard to be removed before access could have been gained in order to clear the blockage. Her Honour determined that the prosecutor had failed to make out this particular to the requisite standard. 24 Her Honour's conclusion in respect of the charge was: [61] I find that the defendants failed to ensure the safety of Mr Butcher by first, failing to provide and maintain a safe system of work for the cleaning of the rollers by failing to provide an adequate procedure for performing the task as well as failing to provide adequate instructions for performing the task. Secondly, I find that the defendants failed to ensure the safety of Mr Butcher by failing to provide an adequate system of isolation of the Windrower by failing to provide adequate instruction and failing to provide an interlock device or interlocking guard over the nip point area of the rollers. Both defendants are therefore guilty of an offence under s 8(1) of the Act unless they are able to make out a defence under s 28 of the Act. 25 The trial judge then turned to consider defences under s 28 of the Act. The appellants relied on both limbs of s 28. This section provides two defences, firstly, that it was not reasonably practicable to comply with s 8(1) and, secondly, that the offence was due to causes over which the appellants had no control and against the happening of which it was impracticable for them to make provision. The appellant's submissions focused exclusively on the failure to provide an interlocking guard. Her Honour observed this would require essentially two things: a guard and an interlocking device connecting the tractor and the Windrower. The evidence of Mr Sulman was that at the time of the offence, the device was not commercially available. Such a device would have to be specifically designed and according to Mr Sulman's evidence, this would have incurred costs exceeding $150,000. The trial judge, after considering the evidence, made the following findings: [69] In this regard I make the following findings: (i) the defendants are farmers not engineers, and lacking in the necessary technical expertise which might have facilitated a recognition that employees would not be exposed to the nip point when cleaning the rollers if an interlocking guard had been installed;

(ii) the device was not commercially available at the time of the offences;

(iii) neither the tractor nor the Windrower were designed to incorporate the device;

(iv) incidents of employees being on the Windrower when the PTO was engaged were unknown prior to the offences date;

(v) the cost of producing the device is $96,000 plus $4,400 for the cover guard. The estimated value of the Windrower is between $50,000 to $100,000. 26 Her Honour concluded that the defence in relation to this particular had been established on the balance of probabilities. 27 There remained, for consideration, the s 28 defence by reference to the appellants' failure to provide adequate instruction in relation to the provision and maintenance of a safe system of work and the adequacy of a safe system of isolation of the rollers on the Windrower. In this regard, her Honour concluded that the appellants failed to establish a defence under s 28(a) and s 28(b) on the balance of probabilities. The appellants relied on the evidence that the employees received adequate instructions in relation to the cleaning of the rollers, but nevertheless ignored those instructions and knowingly and deliberately placed themselves in a situation of danger. Her Honour had already found, however, that Mr Butcher was not the recipient of adequate instructions in relation to the task of cleaning the rollers and in relation to isolating the rollers whilst they were being cleaned. Her Honour observed that the appellants had control in relation to the task and were responsible for and capable as employers, of providing suitable instructions to Mr Butcher in relation to the safe performance of work. PENALTY 28 After referring to the relevant evidence, her Honour determined that the circumstances did not reveal conduct which elevated the offences into the most serious category. This was not a case in which the employer had failed to pay any attention to the need to adopt a safe system of work: Inspector Jones v JT & LC Tippett Pty Ltd and Anor (No 2). Her Honour observed: [14] The facts giving rise to the offence, indicate, as I observed earlier in these sentencing remarks, that the relevant risk to safety was known to the defendants. The risk also arose in the context of an extremely hazardous piece of machinery with a number of dangerous and accessible moving parts. Mr Butcher's injuries were both serious and extensive. Although the extent of the injuries, which were a consequence of the accident, do not impact on the penalty, they nevertheless are a manifestation of the seriousness of the risk which does impact on the penalty: Morrison v Powercoal Pty Ltd (2003) 130 IR 364 at [32]. 29 Her Honour considered factors subjective to the appellants and took into account that the appellants had introduced substantial changes to the farm's induction and training program and the support offered to Mr Butcher following his injuries and the introduction of a comprehensive safety plan. The appellants also relied upon the impact of the drought on farming operations to support a submission that the defendants had limited capacities to pay a fine. However, her Honour was not satisfied that appropriate and sufficient material had been placed before the court to enable it to properly consider the appellants' capacity to pay a fine. 30 Her Honour also considered a submission advanced by the appellants that the Court should view the offences in a global way. The submissions sought the imposition of a single penalty and each defendant to be sentenced to 50 per cent of the whole. Her Honour rejected this approach, observing that it was inconsistent with the principle determined by the Full Bench in WorkCover Authority (NSW) (Inspector Green) v Big River Timbers Pty Ltd (2006) 156 IR 341. Her Honour noted that the Full Bench endorsed an approach, which precludes the application of the principles of totality to two different defendants. Each of the parties sought to distinguish the judgment in WorkCover v Big River Timbers. The prosecutor sought to do so on the basis that the Full Bench judgment dealt with two corporate co-offenders who were in a business relationship, not a partnership, and where only one was the employer. The appellants emphasised that they were in partnership, and had been "convicted" of the same offence in the same terms arising out of the same circumstances. 31 The trial judge was also requested by the appellants to make an order apportioning the costs between the parties in the defended hearings by one third and two thirds, in favour of the respondents. The prosecutor opposed this approach and submitted that there was no basis for the Court to depart from making the usual order as to costs. After referring to the relevant principles set out by Walton J, Vice-President in O'Sullivan v Crown in Right of State of New South Wales (Department of Education and Training) (2003) 128 IR 158, her Honour stated:

[46] In the present proceedings, although there was a common sub-stratum of facts, the evidence in relation to the issues of the emergency stop button, the interlock device and the guarding were discrete from the evidence in relation to the issues of safe procedures and adequacy of instructions. In relation to the former group of issues the prosecutor was not successful. Those issues occupied at least two thirds of court hearing time. In all but one of those issues (the interlock device) the prosecutor failed to make out the gravamen of the allegations namely the failure to provide an adequate system of isolation by providing an emergency stop button or trip device, and, the failure to ensure the rollers adequately guarded. The remaining issue, that of the interlock device was successfully defended by the defendants under s 28 of the Act. [47] These circumstances in my view warrant a departure from the normal order as to costs and I propose to apportion the costs recoverable by the prosecutor from the defendants. The appropriate order will be that the prosecutor should have 30 per cent of his costs on a party and party basis, payable jointly and severally by the defendants. 32 In sentencing the appellants, her Honour imposed a fine of $60,000 on each of the appellants. THE LEGISLATION 33 The charges were brought pursuant to s 8 of the Act which provides: 8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 34 The appellants raised a defence under s 28 of the Act. That section is in the following terms: It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that:

(a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

NATURE OF THE APPEAL 35 An appeal in respect of criminal proceedings taken before a single member of the Industrial Court of New South Wales may be brought before the Full Bench of the Industrial Court of New South Wales pursuant to s 196 of the Industrial Relations Act. That section provides: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission.

(2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction.

(3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912 : (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session, and

(b) to the Supreme Court - is taken to be a reference to the Commission in Court Session, and

(c) to rules - is taken to be a reference to rules of the Commission, and

(d) to the Attorney General - is taken to include a reference to the Minister, and

(e) to the Director of Public Prosecutions - is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and

(f) to the registrar - is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs." 36 It will be observed that the Criminal Appeal Act applies with respect to these proceedings. The relevant provision of that Act is s 5AA(1)(a). The proper approach to be adopted in appeals brought pursuant to s 196 of the Industrial Relations Act and s 5AA of the Criminal Appeal Act is well settled: see Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 99 IR 29 at 37 - 39; Swift Placements Pty Limited v WorkCover Authority of New South Wales (Inspector May) (2000) 96 IR 69 at 70 - 71; Fletcher Construction Australia Limited v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at 75-77 and Warman International Limited v WorkCover Authority of New South Wales (1998) 80 IR 326 at 338. 37 That approach provides that the present appeal is brought as of right and there is no need to seek leave to appeal: s 5AA(1) of the Criminal Appeal Act and s 196 of the Industrial Relations Act. The appeal comes before the Full Bench by way of rehearing, although the Full Bench does not undertake a hearing de novo. The Court must consider afresh the ultimate issue and independently determine the matter on the evidence at first instance, plus any fresh, additional or substituted evidence adduced on appeal: s 5AA(3A) of the Criminal Appeal Act. However, consideration of the manner in which the trial judge approached the questions to be determined may provide a useful analytic device when approaching the matter at appellate level: see Capral Aluminium Ltd at [22] and Fletcher Construction Australia Limited (at 81). Having heard the matter the Court "may confirm the determination made by the [Court] in its summary jurisdiction or may order that the determination made by the [Court] in its summary jurisdiction be vacated and make any determination that the [Court] in its summary jurisdiction could have made on the evidence heard (Capral Aluminium Ltd at 37 - 39). See s 5AA(4) of the Criminal Appeal Act. Appellants' Submissions 38 Mr K G Bennett of counsel, who appeared for the appellants, submitted that the matters, questions and grounds of appeal relied upon by the appellants can, for convenience, be divided into two aspects, being: (i) liability - finding of guilt; (ii) the penalty. 39 Although the appellants initially sought to challenge her Honour's failure to award costs in favour of the appellants in respect of that part of the proceedings that were resolved in favour of the appellants, leave was sought by the appellants to discontinue this aspect of the appeal. Leave was granted in this respect. 40 The appellants acknowledge that the matters and questions referred to in (ii) above only arise for consideration in the event that the Court does not allow the appeal with respect to (i) above. In this respect, the questions raised by the appeal are: 1. Whether her Honour failed to apply or properly apply the standard of proof for the determination of guilt in criminal proceedings, that is, beyond reasonable doubt in relation to the elements of the offence. 2. Whether her Honour's finding was against the evidence and the weight of the evidence in relation to the elements of the offence and the onus upon the prosecution to prove the elements of an offence beyond reasonable doubt. 3. In the alternative, whether her Honour failed to apply or properly apply the standard of proof in relation to the statutory defence contained in s 28 of the Occupational Health and Safety Act 2000 following upon a finding that the elements of the offence had been proved. 41 The appellants acknowledged that as they had successfully raised the statutory defence with respect to the "guarding" issue, the appeal is only concerned with the failure to provide a safe system, as particularised, that being, the instruction and training issue. Submissions as to Liability 42 Mr Bennett submitted that the prosecution had failed to prove that there was a risk to the safety of an employee (Mr Butcher), in the requisite statutory sense and that there was a causal nexus between the said failure and the risk to safety. The offence was particularised as "the defendant had not instructed or trained Mr Butcher in relation to the specific hazards of the rollers". The appellants submitted that the findings with respect to the system of work was substantially correct. Although her Honour referred to this system based on Mr Tippett's evidence insofar as he understood it, it was submitted, it was clear from the evidence of other witnesses, and indeed the Inspector, that this was the system in place. 43 Counsel submitted that contrary to her Honour's findings, that "Mr Butcher had received little instruction on how to safely clean the rollers, or if he had, it was a sufficiently long period before the accident for him to have forgotten it" that finding is inconsistent with her Honour's own findings. Those findings being: (i) Mr Butcher was fully aware, prior to his accident, that counter rotating rollers on the Windrower posed a serious danger when the PTO was on; (ii) Mr Butcher was also aware that it was unsafe to be on the Windrower while the PTO was engaged; (iii) that he had received instruction that he should disengage the PTO before cleaning commenced. 44 It was submitted that Mr Butcher's evidence demonstrated that he was instructed to disengage the PTO before he sought to clean the rollers; that he was not to be on the Windrower while the PTO was engaged and that at the time of the accident he knew he should not have been on the machine. 45 The appellants contended, in the context of the findings of her Honour and the additional evidence referred to of Mr Butcher, that it was not open to her Honour to find, "beyond reasonable doubt, that he, (Mr Butcher), had received little, if any, instruction on how to safely clean the rollers, or if he had, it was a sufficiently long period before the accident for him to have forgotten". 46 In respect of the second proposition, that is, it was a sufficiently long period before the accident for him to have forgotten, counsel submitted that it was never put to Mr Butcher that he had forgotten the instructions that he had received, nor was there any evidence from any other witness which would support a finding of that nature. 47 Furthermore, it was submitted that her Honour's finding that Mr Butcher's limited appreciation of the dangers posed by the counter rotating rollers when the PTO was engaged, was also not available on the evidence. It was submitted, Mr Butcher was precisely aware of the danger which was obvious if an employee was on the machine at the time the PTO was engaged. 48 The appellants submitted that the success of the system employed was demonstrated by the evidence of Mr Butcher and the finding of her Honour that Mr Butcher had never seen any employees cleaning rollers on the Windrower while the PTO was engaged, nor had he before the day of the accident, ever attempted to unblock the rollers while they were operating. The appellants submitted that when one examines the evidence in its entirety, Mr Butcher received training and had knowledge of the nature of the nip point and the means of avoiding that nip point, contrary to her Honour's conclusions that the evidence did not assist in determining what training and supervision Mr Butcher had actually received. 49 The appellants also challenged her Honour's conclusion that the system was inherently flawed because it was not confined to one employee acting alone cleaning the rollers, but allowed for the involvement of several other employees. It was submitted that her Honour had arrived at this conclusion without any evidence to support it. It was submitted this proposition had never been put to Mr Tippett, nor was it suggested what an appropriate system may have been if more than one employee was present. The appellants contended that the proposition was nothing more than speculation by her Honour. It was never put to Mr Butcher or any of the employees called to give evidence that had they been given that instruction, they would have complied with it and the risk to safety would have been avoided. 50 It was further submitted that even if this evidence was given, it would have been subject to the criticism identified by his Honour Justice Callinan in Rosenberg v Percival (2001) 205 CLR 434 at [214]. Counsel submitted that the risk as identified by the prosecution in their particulars was that Mr Butcher was not instructed or trained in the system. It was that failure by the employer which, it was alleged, gave rise to the risk to safety, not the fact that more than one person might be working on the machine. It was submitted that it was not open to her Honour to conclude that the system was therefore inherently flawed, particularly to the requisite standard, or beyond reasonable doubt, as there was no evidence brought with respect to it and witnesses were not asked about it with the exception of the one reference in Mr Tippett's evidence. Counsel further submitted that the appellants were denied any opportunity to deal with this issue. 51 The appellants submitted that in respect of supervision, this was not a particular that the appellants were required to deal with, nor was it argued during the course of the proceedings by the prosecutor that the employer had failed with respect to supervision, thereby giving rise to a breach of the Act as pleaded. The appellants contended, on a proper consideration of the evidence going to the causal connection between the alleged failure of the appellants and the risk to safety in the context of the requisite standard of proof, her Honour erred in finding that the offence had been committed. It was submitted that on an examination of the evidence, her Honour's verdict was unreasonable, not supported by the evidence and misapplied the test "beyond reasonable doubt" so as to constitute a miscarriage of justice. As her Honour found the offence committed, the rejection of the defence pursuant to s 28(b) of the Act by her Honour was based on her Honour's findings which gave rise to a finding of guilt. The errors made by her Honour also demonstrate that her Honour erred in not finding the defence established. Submissions as to Penalty 52 The appellants submitted that her Honour found, as a matter of fact, that the defendants operated as partners trading as "Tippett's Scrub Hill Pastoral Co" ("the business"). The submission proceeded on the basis that the appellants conducted a rural enterprise as one economic unit being a partnership. The partnership employed employees, including Mr Butcher, for the purposes of the partnership. Pursuant to s 9 of the Partnership Act 1892 (NSW) ("Partnership Act"), the defendants are liable jointly for the debts and obligations of the partnership, including the wages paid to employees. The charges against the appellants are pursuant to one section of the Act and the charges against the defendant are in identical terms involving the same factual background. It is, therefore, appropriate in the interests of justice to view the offence in a global way and apply a penalty on the partnership as the employer, but acknowledge the existence of the partners by imposing upon each a penalty of 50 per cent of the whole. 53 The appellants submitted such an approach was adopted by O'Loughlin J in Trade Practices Commission v Cue Design Pty Ltd and Cue & Co Pty Ltd (1996) 85 ACrimR 500 at 508, where his Honour held: I also am of the opinion that it is appropriate to deal with this matter as if there had been one offender but to acknowledge the existence of the two defendants by imposing upon each a penalty equal to 50 per cent of the whole. In reality, what happened was the implementation of one sales strategy by one business house. It would be unfair to impose a multiplication of penalties because of the number of outlets or the number of the companies in the group. 54 It was submitted that her Honour incorrectly formed the view that it was impermissible to adopt O'Loughlin Js approach. The basis for the appellant's submission is that her Honour's rejection of the approach found in the passage above is based upon a reliance on the Full Bench decision in Big River Timbers. It was submitted that the judgment did not deal with a partnership. The appellants contend that the factual differences between Big River Timbers and this case are stark. Importantly, the two corporations concerned in Big River Timbers were not in a partnership whereby they were liable for the debts and obligations of the partnership pursuant to s 9 of the Partnership Act. Those corporations operated as separate entities responsible for their own obligations. 55 Counsel submitted it is the employer who is being sentenced in the requisite statutory sense. It would be an unjust outcome for a penalty to be applied in the manner in which her Honour applied it in a practical sense. It was submitted that it cannot be in the interests of justice that when a business is conducted as a partnership employing labour for the purposes of that partnership, in circumstances where the partners are jointly and severally liable for the debts and obligations of the partnership that, the notion of the partnership is cast aside. Further, it was submitted that it could not be that individual partners are fined separately with no acknowledgement that it was a partnership, would create inconsistency in punishment between corporations and partnerships by that very fact.

Respondent's Submissions 56 Mr P Skinner of counsel, who appeared for the respondent, took issue with the appellants' submission that the accident would not have occurred if the system, as it applied to one employee had been followed. Counsel submitted that this submission missed the point of her Honour's finding at [39] where her Honour found that the procedure was not confined to one employee acting alone cleaning the rollers, but allowed for the involvement of several employees, which gave rise to the risk to the health and safety of the employees. 57 Counsel further submitted that the appellant's contention that her Honour's finding in respect to the system was arrived at without any evidence to support the conclusion, was without foundation. Mr Skinner contended that it was the defendant's counsel at first instance whohad opened up the topic of the practice of more than one employee being used to clear blockages during the cross-examination of Inspector Jones. The respondent also pointed to evidence of Mr Tippett in re-examination who acknowledged that the system of work did include a situation where more than one employee was clearing blockages. Mr Skinner observed that Mr Tippett was not asked any questions in cross-examination by the appellants' counsel seeking to explore these issues. Counsel for the respondent submitted that her Honour was perfectly entitled to draw the factual conclusions that she did and that no error in that regard could be made out. In addressing the submissions made by the appellants of alleged procedural unfairness, Mr Skinner submitted that there was no basis for such a contention. Submissions as to Penalty 58 Mr Skinner submitted that her Honour had correctly applied the relevant principles in determining penalty in respect of each of the appellants and that no error could be shown in the way that her Honour applied such principles. Counsel further submitted that there was no basis to claim that the sentences were manifestly excessive as the trial judge was in a better position than this Court to assess the evidence. In the absence of any substantive error being demonstrated, counsel for the respondent submitted that there was no basis for this Court to intervene even if it was of the view that it would have imposed different penalties to her Honour if it was sentencing at first instance. CONSIDERATION Appeal Ground that Her Honour went beyond the Particulars 59 Particulars were provided of the charge and further particulars were set out in the affidavit of Inspector Stephen Jones, which we have set out earlier in these reasons (at [6]). Both parties accepted that if the particulars were wide enough to include the system of work providing for multiple employees, it came down to the terms of the final paragraph of the affidavit of Inspector Jones which provided: [18] Despite the fact that cleaning the rollers was an essential task for the overall operation of the potato harvesting process, there was no formulated safe work method procedure for the task of clearing the rollers. The Defendant had not instructed or trained Butcher in relation to the specific hazard of the rollers. 60 The critical finding of her Honour was that the system for cleaning rollers was inherently flawed in that it was confined to one employee acting alone in cleaning the rollers, but allowed the involvement of several employees. The risk that arose, in our view, was that the procedure was not confined to one employee acting alone. As her Honour observed, the possibility of an employee being exposed to moving parts of the Windrower, specifically the nip point, was remote if the system was confined to one employee. This led her Honour to conclude that the system was inherently flawed because it was not confined to one employee acting alone cleaning the rollers, but allowed for the involvement of multiple employees. 61 The question therefore is whether the prosecutor did enough to put the appellants on notice of this risk in opening the prosecutor's case. 62 It was contended by the appellants that it was not until the prosecutor's final submissions that it was alleged a risk arose as a result of more than one person cleaning the machine and this was not part of the prosecution's case. Nor, it was submitted, was there any evidence brought with respect to it, and with the exception of Mr Tippett, witnesses were not asked about it. 63 It can be accepted that the risk identified by the prosecution in the particulars was that Mr Butcher was not instructed or trained in the system. It was that failure by the employer which it was alleged gave rise to the risk to safety, not the fact that more than one person might be working on the machine. Although counsel for the respondent conceded that the pleading of the charge in the application for order and affidavit in support was somewhat general, the applications clearly pleaded not only a failure to provide but also a failure to maintain a safe system of work. The failure to ensure safety related to all employees. An aspect of this as pleaded in the affidavit of Inspector Jones can be found at paragraph 18 of his affidavit. 64 In our view, the particulars of the charge including those found in the affidavit of Inspector Jones were broad enough to put the appellants on notice of what was the unsafe system. Furthermore, the manner in which the trial was opened by the respondent, put the appellants on notice that the multiple operation for cleaning the rollers (the system) was unsafe. It should also be acknowledged that the evidence showed, in this aspect of the work, that at least three people were involved in driving the machinery as part of a work team. This was a significant aspect of the system of work. 65 Counsel for the respondent in opening his case before the trial judge stated that there was no safe system of work for the cleaning of the Windrower and that the system broke down "because of three men with the best intentions who were going about their work, one of them was of the view that the PTO was off, but he was still dealing with rollers and should not have been." The particulars also included a failure to "instruct or train Mr Butcher in relation to the specific hazard of the rollers". 66 Mr Butcher's evidence was that he could not remember whether he had actually been told how to unblock these rollers and that he had never been given any written instructions as to how to go about unblocking the machine. He had only been given a basic run down of the operation of the machine and how it ran by his foreman, Mr Tuck Routen. Mr Butcher was cross examined about what instructions he was given when he commenced employment regarding the Windrower. However, his evidence was that he could not remember back that far. He was not challenged on his evidence regarding whether he was told how to unblock the rollers. Mr Butcher was never asked if he had been given an instruction that only one person was to clean the machine that he and the other employees would have complied with that instruction. 67 The written submissions for the respondent filed after the close of evidence clearly raised and addressed this issue in a number of places. These submissions in this respect were not traversed by the appellants. The respondent submitted that the evidence established that there was a clear risk that when two or more men were working on the unblocking of the machine, without an adequate system of ensuring the isolating of power to the rollers, there was a chance of one or more of the men being on the Windrower at the blockage and thinking the PTO was not engaged, when in fact it was engaged. The respondent's submissions invited her Honour to make a finding in this respect. In these circumstances, there was no lack of procedural fairness, even though the finding was adverse to the appellants.

68 It was also contended by the appellant that it was not suggested at any stage as to what an appropriate system may have been if more than one employee was present during the clearing of a blockage of the rollers. We do not consider that this contention is sustainable. It is well established in this jurisdiction, that it is not a requirement for the prosecution to specify or prove what should or could have been done to avoid the pleaded failures: WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 131 which was approved by the Full Bench in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 451 and Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 at 23 - 25. 69 The appellants also complained that it was never put to Mr Butcher, or indeed any of the employees called to give evidence that, had they been instructed that only one person was to clean the machine, they would have complied with that instruction and the risk to safety would have been avoided. In our view, this complaint is without substance. Counsel for the appellants had every opportunity to clearly put this proposition to Mr Butcher or any other witness called by the respondent, but chose not to do so. It was a matter that counsel for the appellants raised with Inspector Jones, whose evidence was that such a matter should be explored with the employees who were to give evidence which counsel indicated he would do but never did. Furthermore, the following exchange took place between counsel for the appellants and Mr Butcher during cross-examination: Q: If you had followed the instructions that had been given to you and not been on the machine when Daniel went up there to engage it, the accident wouldn't have happened, if you were on the ground? A: If I had been on the ground, no, the accident wouldn't have happened. Skinner: There was a little bit of a premise in that question which I don't think has been answered. Her Honour: What was that? Skinner: "If you had followed the instructions", the accident would not have happened. The first part of the question has not been answered. The answer can stand, but I will make it plain that in submissions I will not accept that the first part of the question has been accepted. Her Honour: I will leave it to Mr Bennett if he wants to clarify it. 70 Counsel for the appellants chose not to further pursue this matter. It was the subject of comment in the respondent's written submissions as to liability. 71 Counsel for the appellants submitted that, even if the evidence had been given, it would have been subject to the criticism identified by his Honour Callinan J in Rosenberg v Percival at [214]. We do not consider that it is necessary to approach this issue in that way. Rosenberg v Percival was a case involving damages for breach of a duty of care by a medical practitioner who failed to warn a patient of the risk of a particular complication and the weight that can be given to a negative answer to the question "would you have had the operation?" years later after complications occurred. We do not see this case as being relevant. Liability 72 The next issue is whether the Full Bench is satisfied beyond reasonable doubt that the appellants were guilty of the offences for which they were convicted. Backman J convicted the appellants upon finding that they did not have a system in place to cope with the involvement of multiple employees. The challenge to liability is based on two contentions. Firstly, that to the extent that her Honour relied on the multi purpose system, the appellants submitted that such reliance exceeded the particulars and the appellants could not be convicted and secondly, there was no factual basis to find that the system failed in respect of the involvement of multiple employees. 73 We have already determined the first issue in dealing with the challenge to particulars. The question which remains is essentially whether there was evidence before the trial judge sufficient to sustain the finding that the system for cleaning rollers was inherently flawed in that it allowed the involvement of several employees. The appellant contended that there was no evidence to make this finding. We have considered the evidence and for the reasons that we now give, we are satisfied beyond reasonable doubt, that there was sufficient evidence of a deficiency in the appellant's system of cleaning the rollers to enable the trial judge to make the finding that she did in respect of liability. 74 As we have already observed, the risk was that employees could be exposed to the "nip point" whilst cleaning the rollers of the Windrower. The charges allege that the appellants' failed to provide an adequate system of isolating the rollers whilst they were being cleaned. The appellants' failure to ensure that the rollers were adequately guarded does not arise for consideration as the appellants established a defence in respect of this particular. 75 When addressing these questions, the Full Bench is not bound by the factual findings made by the trial judge, at first instance. It is for the Full Bench to consider the evidence afresh and to come to its own view. It is, of course, appropriate for regard to be given to factual findings made by the trial judge, particularly where those findings are assisted by the direct observation of witnesses giving evidence or based on findings of credibility: see for example, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178 and State Rail Authority (NSW) v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306. See also as to an appellate Court's capacity to draw appropriate inferences from undisputed facts, or those established by the findings of the trial judge, Warren v Coombes and Another (1979) 142 CLR 531 at 555; Port Macquarie Golf Club Limited v Stead and Another (1996) 64 IR 53 at 59 and Abboud v the State of New South Wales (Department of School Education) (1999) 92 IR 32 at 43; and in a case where an appellate court is required to undertake a re-hearing: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2000) 105 IR 81 at 93. 76 We turn to consider the evidence in respect of liability. Evidence provided by Mr Tippett in his record of interview assumed that more than one employee may be engaged in clearing the blockage. As her Honour observed, if the system was not confined to one employee acting alone, this may result in an employee, as occurred with Butcher, being put at risk because considerations of expedience and convenience may well take precedence. Unlike one employee acting alone who would have had to physically get on and off the machine, which was a control in itself, when there was more than one employee, the risk that arose was that Mr Butcher did not realise that the PTO was engaged because of a step taken by another employee. It is the engagement of the PTO, whilst there is more than one employee on the machine, that gives rise to the risk to safety. We are satisfied that her Honour was entitled to draw the factual conclusions that she did and no error has been made out in that regard. It was, of course, necessary for her Honour to determine what the actual system was for one person in order to demonstrate that such a system was unsafe because of its multi operation by employees. 77 The extent and standard of instruction provided by employers to their employees to ensure satisfaction with the requirements of the Act will depend upon the nature of, and circumstances under which, work is performed. It will not, therefore, necessarily require the provision of classroom-based instruction, or the provision of substantial work manuals. However, in all cases adequate and complete instructions will necessarily involve the provision of such information and instruction as will fully equip employees to safely perform work which they are expected to undertake. This includes the provision of training as to all contingencies arising out of, or relating to the performance of such work. In short, the employer must educate the employee to deal with the full range of circumstances which may arise in the performance of work including eventualities which are more unusual in character. Such education should involve processes designed to ensure that employees have fully understood the instruction and any training afforded them (and further instruction and training of employees, where necessary), to ensure the continued effectiveness of such education. 78 In this matter Mr Tippett explained that the system of instruction in relation to various items of machinery used on the property by employees, including Mr Butcher, was the "buddy system". It was also, he said, not documented at all because the workers "were not extremely well educated". This method of instruction was clearly inadequate. The appellants should have had a more comprehensive method for assessing risks and formulating a safe work method procedure and then ensuring that the procedures were properly conveyed to the employees. In our view, the system as instructed did not take into account what the evidence discloses to be the normal, regular and expected event of more than one employee working on clearing a blockage of the rollers, especially where three or more machine operators worked as a team. When one of the machines could not operate then the remaining machines were unable to operate. Such an occurrence clearly led to the operators of the machines stepping in to assist, as occurred on the day of the incident. The appellants were aware of this and should have taken such an occurrence into account when designing appropriate safety rules to be implemented for this work. This required communication between the employees. However, this system of communication was left totally to the employees, which, as the offence of the accident bear out, was quite inadequate. There was no alert or warning signal to Mr Butcher to indicate to him that the PTO was still engaged. 79 In our opinion, on a proper analysis of the evidence, Mr Butcher received, putting it at its highest, the most perfunctory and ad hoc instructions in respect of cleaning the rollers on the Windrower upon commencing employment with the appellants in 2000. Mr Butcher could not recall the original instructions given to him and his evidence was that he had not been provided with any follow up instructions. The evidence of Mr Tippett does not assist the appellants either. His evidence, as her Honour found, and with which we agree, suggested not what was actually said to Mr Butcher, but rather what Mr Tippett's practice purportedly was for explaining the procedure, which included cleaning the rollers. Mr Tippett's evidence also covered his understanding of what someone else's practice purported to be, or what someone else said. His evidence failed to convince this Court that Mr Butcher received appropriate instructions from either Mr Tippett or someone else. 80 We also consider that it is properly open to conclude the inadequacy of the instructions received by Mr Butcher from the evidence of his actions on the day of the accident because on the day of the incident, Mr Willie, who was driving the Windrower machine got out of the cabin of his tractor and started to clear the rollers with a metal bar. Both Mr Butcher and Mr Peterson stopped their tractors and alighted and approached the Windrower machine and Mr Butcher climbed onto the machine. It was contended by the appellants that the actions constituted a knowingly and deliberate failure to observe the appellants' safe system of work and the instruction and training given to them in respect of cleaning the rollers. We do not consider that this view of the evidence is sustainable. Mr Tippett gave evidence that Mr Butcher was an experienced and competent employee. We consider it is not possible to infer that Mr Butcher simply disregarded the dangers created when he went to assist the other employees in clearing the blockage on the rollers of the Windrower. The rational conclusion from the evidence was that Mr Butcher did not fully envisage the risk created because of a failure to provide proper instructions to him in relation to the safe operation of cleaning the rollers. 81 The verbal instructions given to the employees to keep clear of the machine when it was turned on because, according to Mr Tippett's evidence "machines are quicker than what you are", was, in the circumstances, completely inadequate as a safe work method procedure for the task of cleaning the rollers. As we have earlier discussed, the proposition that Mr Butcher was told that he was never to be on the machine if there was more than one employee there, is not supported by the evidence. If the system only applied to one employee and it had been properly conveyed to all employees, and one employee acting in accordance with the system climbed onto the machine knowing that the PTO was engaged, then such an employee would be clearly acting in disobedience of the instruction. 82 Where there is more than one employee assisting in the unblocking of the rollers, it gives rise to what transpired with Mr Butcher on the day of the incident. He was on the machine believing that he was obeying the instruction to avoid coming in contact with an engaged PTO, but was in fact mistaken in that he believed the PTO was not engaged. If Mr Butcher had been instructed never to climb onto the Windrower, or to work with more than one employee in clearing a blockage of the rollers, the issue of him being on the machine and at risk would never have arisen. 83 The evidence as we have already observed, does not support the appellants' contention that this instruction was ever conveyed to him, nor that the employees were disobedient and therefore the appellants cannot be held liable. In any event, what the appellants did not do was to provide instructions in respect of when to get on and off the machine if there was more than one employee assisting with the cleaning of the rollers. If multiple employees were permitted to climb onto the machine, this clearly exposed those employees to a risk which was not covered by one employee cleaning the rollers. In this instance, the appellants have failed to cover all the areas of risk. 84 We have already found, similar to her Honour, that Mr Butcher was not the recipient of adequate instructions in relation to the task of cleaning the rollers on the Windrower and in relation to isolating the rollers whilst they were being cleaned. The appellants were responsible for providing instructions to Mr Butcher in relation to the safe performance of the work. Before the trial judge, the appellants relied on evidence that Mr Butcher and other employees ignored instructions and knowingly and deliberately placed themselves in a situation of danger. Having regard to the findings made in relation to the inadequacy of the instructions received by Mr Butcher and noting that at least one other employee, Mr Willie, said he received no instruction, it is not possible to conclude that the risk to safety was caused solely by the failure of the two workers to observe the appellants' ordinary procedures. The Act obliges employers not merely to establish safety procedures but also to ensure those procedures are sufficiently promulgated to its workers who are themselves adequately trained in their implementation, and to enforce those procedures. 85 The essential error as we have found in relation to the system was that it was confined to one employee but allowed for the involvement of several employees. It was this failure that had implications for the instruction and training of the employees. This was predicated on an omission, that being that only one employee was involved in the cleaning of the rollers. 86 The essence of the charge was the absence of a safe system of work. The system was based on a one person operation in cleaning the rollers. It was not formulated to deal with the involvement of multiple employees. It follows that the system, as the trial judge found, and we agree, was fundamentally flawed as were all of the instruction and training which was predicated on a one person operation. 87 As the appellants challenge to her Honour's findings in respect of liability have failed, so must their challenge to her Honour's finding that they had failed to establish a defence under s 28(b). We have found that there was an inadequacy in the instructions provided to the employees by the appellants. The appellants had control in relation to the operation. The appellants were responsible for, and capable of, in our view, providing suitable instructions to Mr Butcher in relation to the safe performance of the work. We are, therefore, not satisfied that the appellants demonstrated, on the probabilities, that it was not reasonably practicable to make provision for more detailed and thorough instructions for those working at its worksites. The s 28(b) defence must fail. In the result, the appeals against the convictions recorded by the Trial Judge in respect of each charge should be dismissed. Should a Global Approach be Adopted in Respect of Sentencing? 88 The appellant submitted that her Honour should have approached the question of penalty and dealt with it in a global fashion. According to this submission, the appellants ought to be treated together as part of a partnership, rather than separately, to avoid any inconsistency in punishment between corporations and a partnership. To the extent that her Honour relied on the principles determined by the Full Bench in Big River Timbers in the present case, the appellants submitted that her Honour fell into error. 89 The issue therefore for determination in this appeal is whether the principle stated in Big River Timbers should be maintained where a quite different, indeed unusual, position exists factually, namely that there are separate corporations the subject of charges, but the prosecutor concedes that the corporations form part of not just a trading business, but an actual partnership which is the employer. Furthermore, the corporations are facing the same offences and same charges and same particulars in respect of the one incident. In our view, for the reasons that follow, the circumstances of this matter are distinguishable from those found in Big River Timbers because the role of the entity here, which was the employer, was essentially in law, one employer entity. 90 It was submitted by the appellants that a single penalty should be imposed, with each appellant being sentenced to 50 per cent of the whole. In support of this contention the appellants pointed to the circumstances where the appellants conducted a rural enterprise as one economic unit being a partnership. According to their submission, the partnership engaged employees, including Mr Butcher, for the purposes of the partnership and pursuant to s 9 of the Partnership Act the defendants, as partners, were liable for the debts and obligations of the partnership including the wages due to the employees. The appellants submit that where a defendant is charged pursuant to one section of the Act (s 8(1)) and a charge against another defendant is in identical terms, involving the same factual background, it is appropriate in the interests of justice to view the offence in a global way and to apply a penalty on the partnership as the employer. This approach acknowledges the existence of the partners and imposes upon each a penalty equal to 50 per cent of the whole. 91 The respondent tendered before the Trial Judge an Australian Business Register, which disclosed that the legal name of the business was JL Tippett Family Trust and RL Tippett Family Trust trading under the name of Tippett's Scub Hill Pastoral Co. Against the words "type of entity" is the description "family partnership". There is one entity with an Australian Business Number. An Historical Business Extract also records Tippett's Scrub Hill Pastoral Co as being registered as a business name on 4 March 1980, describing the nature of the business as "farming". The respondent submitted before the Trial Judge that the two entities were in partnership. Mr Butcher was issued with a group certificate that described his employer as Tippett's Scrub Hill Pastoral Co partnership. 92 Her Honour applied the principles set down by the Full Bench of this Court in Big River Timbers. We would observe that her Honour was bound to apply Big River Timbers if applicable, thus the question becomes "did the principles in Big River Timbers apply to the circumstances of this matter"? Her Honour found that they did. 93 In Big River Timbers the Full Bench reviewed the application of the principle of totality by the Court. Briefly stated, Big River Timbers Pty Ltd and Big River Timbers (Veneer) Pty Ltd were involved in the manufacture of plywood and flooring. Big River Timbers Pty Ltd controlled the business activities and owned the relevant plant. Big River Timbers (Veneer) Pty Ltd operated an employment company for the veneer and engineering divisions, which included an employee who suffered crush injuries. The respective companies were charged pursuant to s 8(1) and s 8(2) of the Act respectively. At first instance, the two corporate defendants were treated as one entity for the purpose of sentencing, because they were as the Chief Industrial Magistrate ("CIM") had observed "interlocked" which the Full Bench understood the CIM to mean that the respondents were closely related corporate entities having a common governance and operation. 94 The Full Bench referred to an earlier judgment of a Full Bench in Haynes v CI & D Manufacturing Pty Ltd (1994) 60 IR 149. The Court in Haynes considered the appropriate approach to penalty where two related companies, namely, in CI & D Manufacturing Pty Ltd (Manufacturing) and CI & D (Industries) were charged respectively under s 15 and s 16 of the Act in relation to an accident resulting in the death of an employee. The Court came to the view, on the evidence, that the connection between the two companies were so intimate that it was permissible to view the offence in a global way. The Court imposed a total fine and determined that each company should bear 50 per cent of the total fine. The Full Bench in Big River Timbers specifically rejected this approach as wrong and overruled Haynes. 95 The Full Bench then adopted and applied the principles set out in WorkCover Authority of New South Wales (Inspector Ankucic) v McDonalds Australia Limited and Anor (2000) 95 IR 383, where Walton J Vice-President (at 456), rejected the application of the totality principle, where different corporate entities faced separate charges. Walton J rejected the defendant's submissions that a franchisor and lessor ought to be treated as one for the purpose of sentencing, observing that totality presupposes a single defendant charged with multiple offences as a condition precedent to determining a measure of criminality. 96 There has been no case before the Court where there has been a corporate, or non corporate partnership, as is the case here. In McDonalds one of the corporations was responsible for the organisational arrangements of the business and an associated corporation responsible for the finance and management of the business. The net effect was that there were two separate corporations having a close relationship based on certain factors, but different in that the corporations were carrying out different functions. The reality was that there were separate incorporations that were the subject of different offences under different provisions of the 1983 Act. 97 The appellants submitted that a global approach was adopted by O'Loughlin J in Trade Practices Commission v Cue Design Pty Ltd. As the trial judge observed, that decision involved multiple charges against the same defendant, as well as charges against a second defendant. O'Loughlin J found that the gravamen of each count against each defendant was the same, and, the defendants were part of the same corporate group. One defendant was the manufacturer, designer and wholesaler of women's garments. The other defendant retailed the garments. The offences involved attaching price tags to garments displayed in stores bearing higher prices crossed out and lower prices written below, when the garments had not been previously offered for sale at the higher price. O'Loughlin J held at 508: I also am of the opinion that it is appropriate to deal with this matter as if there had been one offender but to acknowledge the existence of the two defendants by imposing upon each a penalty equal to 50 per cent of the whole. In reality, what happened was the implementation of one sales strategy by one business house. It would be unfair to impose a multiplication of penalties because of the number of outlets or the number of the companies in the group. 98 The trial judge rejected the approach of O'Loughlin J in the light of her conclusions as to Big River Timbers. It is unnecessary for us to rule upon the question raised in that respect because of the conclusions that we have reached as to the proper disposition of this aspect of the appeal. 99 Although the defendants have been found guilty of the same offence that was in the same terms and arose out of the same circumstances, their offences relate to corporate co-offenders who are in a partnership that is the employer. There is, therefore, a critical factual difference to that found to exist in Big River Timbers: in this case, the issue of totality does not arise because, as a result of the partnership, there is but one employer entity in law. We propose to proceed to sentence on this basis. RE-SENTENCING 100 In the event that we determined that the Trial Judge had fallen into error in sentencing, the parties requested that we re-sentence the appellants. It therefore falls to us to determine penalty. Mr Bennett submitted that any monetary penalty in excess of $60,000 would be excessive in the circumstances of the case. Mr Skinner submitted that the range was between a minimum to $120,000. In the case of an appeal, by way of re-hearing, the Full Bench itself must determine the appropriate penalty on the basis of the material before the Trial Judge, at first instance: see Capral Aluminium Ltd at [22]. 101 This brings us to the question, having upheld this aspect of the appeal, what principles should be applied in undertaking the sentencing exercise. This is an appeal brought pursuant to s 5AA of the Criminal Appeal Act, which section is applied into this jurisdiction(granted with appropriate changes), by s 196 of the Industrial Relations Act. Section 5AA of the Criminal Appeal Act results in this being an appeal in the strict sense. Section 5AA(4) of the Criminal Appeal Act provides:

5AA ... (4) The Court of Criminal Appeal, in proceedings before it on an appeal under this section, may confirm the determination made by the Supreme Court in its summary jurisdiction or may order that the determination made by the Supreme Court in its summary jurisdiction be vacated and make any determination that the Supreme Court in its summary jurisdiction could have made on the evidence heard on appeal. 102 It will usually be of assistance to have regard to the manner in which the question of sentence was dealt with by the Trial Judge below so as to assist the appellate court in determining an appropriate penalty by a process of review and recent decisions. We propose to do so in the present case. 103 The offences in this case arose from a serious accident which resulted in extensive injuries to an experienced worker. Offences under the Act are committed as a result of the failure to ensure that workers and others are not exposed to risks to their health, safety and welfare. As such, the gravity of the consequences of an accident does not, of itself, dictate the seriousness of an offence under the Act but the seriousness of the risk may do so: see Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476. 104 In considering the objective seriousness of the offence, we accept that the appellants had in place a system for cleaning the rollers on the Windrower prior to the accident. This is not a case in which the employer had failed to pay any attention to the need to adopt a safe system of work. For this reason, we agree with the trial judge that these offences do not fall into the most serious category. Nonetheless, it has been found that the appellants provided inadequate instruction to Mr Butcher and did not adequately communicate to Mr Butcher how to safely clean the rollers. The enterprise involved operating an extremely hazardous piece of machinery with a number of dangerous and accessible moving parts. The risk to safety which resulted, was readily foreseeable. As her Honour observed, the degree of seriousness of the risk was demonstrated by the serious and extensive injuries received by Mr Butcher. 105 In the determination of the appropriate sentence in this case, it is also necessary for weight to be attached to a need for general and specific deterrence: see Capral Aluminium Ltd at [73] - [74]. The sentence to be imposed must reflect the need for general deterrence in relation to the offence under the Act. We agree with the observations of her Honour in Inspector Clothier v Malcolm McIntyre trading as Corambie Pastoral Company and another [2007] NSWIRComm 40, where a prosecution concerned the operation of hazardous machinery on a farm. In that case her Honour observed: [9] General deterrence has particular significance in the circumstances of these offences. Not infrequently, prosecutions under the occupational health and safety legislation involve farming machinery and equipment used in remote farming locations, by inexperienced, uninstructed and unsupervised workers often with tragic results. I endorse the comments of his Honour Justice Haylen on the necessity for the rural community to meet its safety obligations. In Inspector Chris Chadwick v B H MacLachlan (NSW) Pty Ltd [2004] NSWIRComm 331 at [39]: In this case, there is a proper role for considerations of general and specific deterrence. The evidence demonstrates the slow awakening of the rural community to its obligations under the Act and the need to rethink its everyday work practices. Performing work on the same basis that it has been traditionally done over many years will no longer meet those obligations. The defendant continues to be an employer operating two very large properties. I accept that the defendant had in operation a number of safety practices but they were deficient. It is in those circumstances that specific deterrence has a role to play. 106 Notwithstanding the good record of the appellants and their general attitude to health and safety issues occasioned by their operation, which is ongoing, we also consider that some weight must be given to the element of specific deterrence. The obligations imposed by the Act require employers to adopt a proactive approach to safety. Where an employer continues to conduct an operation which presents inherent risks to safety, it is proper to have regard to the need to encourage a sufficient level of diligence in the future: see Capral Aluminium Ltd at [77]. 107 Certain subjective factors in favour of the appellants arise for consideration in the assessment of sentence. As has been mentioned, the appellants have no prior convictions under the Act and have been operating for many years in an industry which presents inherent dangers. The appellants record, combined with other evidence, demonstrates a general conscientiousness and serious approach to achieve the safety of its employees and other persons on its worksites. We also observe that the appellants have further refined their safety procedures since the accident, producing a safety plan formulated by a consultant, Mr Giddings: see Tippett (No 2) at [20], which deals with a broad range of safety policies, procedures and an extensive system of reporting and notification in relation to issues such as maintenance, confined spaces, incident notification, training, license and competence and safe operating procedures. Those actions are commendable and in accordance with the appellants' obligations under the Act. They should receive recognition in mitigation of the penalty. 108 Mr Bennett, on behalf of the appellants, also relies on the impact of the drought on farming operations to support a submission that the appellants have limited capacities to pay fines. A report written by the appellants' accountant, RSM Bird Cameron, annexed to Mr Tippett's affidavit, states that the appellants turnover for the 2007 financial year has decreased by over 35 per cent, which equates to an excess of $1.5 million in lost production. This in turn resulted in substantial losses for the farm in the 2007 financial year for the first time in many years. The accountant has predicted a continuation of this trend, with farms in the region facing greater reductions in water allocations and continued drought conditions. 109 Mr Tippett explained in his affidavit that the farm relies on irrigation for crops, principally potatoes, but that the farm has been currently on stage four water restrictions from 1 July 2007. In 2007 Mr Tippett purchased water at a cost of $200,000. The water, however, was not delivered and Mr Tippett appealed, unsuccessfully, to the State Government for compensation, although he expected at the time of the proceedings before her Honour to receive a refund of about $50,000. This left the appellants significantly out of pocket and the future availability of water an uncertainty. The drought and the effect of the drought on finances has in turn resulted in a reduction in the number of employees on the farm to two, with the prospect of further employment dependent on the water situation. The appellants did not produce any financial records or other records in support of their submission that they may have limited capacities to pay a fine. 110 This Court has consistently stressed the importance of placing appropriate and significant material before it, so as to enable a proper consideration of a defendant's financial position in the exercise of its sentencing discretion. In Inspector Green v Camilleri Properties Pty Ltd (2006) 152 IR 156, the Full Bench made the following observations on this issue: [21] Her Honour also appeared to take into account the respondents' capacities to pay fines, notwithstanding that there was no evidence placed before her to enable any assessment of their respective financial means. Section 6 of the Fines Act 1996 NSW requires a court, in the exercise of its discretion to fix the amount of any fine, to give consideration to the defendant's means to pay the fine. In doing so, the section requires the court to consider: (a) such information regarding the means of the accused as is reasonably and practicably available to the court for consideration, and

(b) such other matters as, in the opinion of the court, are relevant to the fixing of that amount. Plainly, s 6 provides the court with an obligation to consider the defendant's means in a practical and commonsense way. Nevertheless, the consideration must not be, in proceedings under the Occupational Health and Safety Act , ritualistic or token, so that where a defendant relies on the provisions of s 6 of the Fines Act in such proceedings to temper the amount of any fine to be imposed, the defendant bears the onus of placing appropriate evidence before the court to enable it to give proper consideration to the exercise of its sentencing discretion.

[22] The defendant must also satisfy the court, on the balance of probabilities, of the cogency of the evidence and its relevance to the fixing of the fine: WorkCover Authority (NSW) v Chen (2004) 137 IR 33 at [51]; McColl v John Watson Building Services Pty Ltd (2004) 137 IR 310 at 314-315 and WorkCover Authority (NSW) v Wilson (t/as Wilson's Tree Service) (2005) 143 IR 187 at [108]. It follows that the sentencing magistrate, or judge, in occupational health and safety matters, should also explicitly indicate the material upon which she or he has acted.

[23] Her Honour, while acknowledging that there was no specific evidence before her as to the respondents' financial means said that she took a "... general approach as to their capacity to pay a fine". Although it is not entirely clear what her Honour meant by that remark, to the extent that her Honour purported to take into account the respondents' respective financial circumstances, we consider that in the absence of any evidence on that issue, her Honour fell into error.

See also T & M Industries Pty Ltd v WorkCover Authority (NSW) (Inspector James) (2007) 62 IR 396. 111 The absence of taxation records, accounting records and other appropriate financial records have a significant effect on the weight which may be placed upon these financial considerations by the Court. 112 Walton J, Vice-President in McDonald's summarised the general principles for sentencing at 427 - 433. His Honour observed at 427: The purposes of criminal punishment include the protection of society, deterrence of the offender (and of others who might be tempted to offend), retribution and reform: Veen v The Queen (No 2) (1988) 164 CLR 465 at 476. The purposes of criminal punishment are guides to the exercise of discretion in imposing criminal penalties, but do not necessarily give clear and consistent direction: Nesmat Pty Ltd v WorkCover Authority (NSW) (1998) 87 IR 312 at 320 (applying Veen ); also see R v Engert (1995) 84 A Crim R 67 at 68. However, a principal and particular purpose of the Act is the protection of workers from breaches of safety, health and welfare ( Air Express at 71) and to compel attention to occupational health and safety issues so that persons are not exposed to risks to their health and safety at the workplace: Fisher v Samaras Industries Pty Ltd (1996) 82 IR 384 at 388; Alcatel Australia Ltd (at 106); see also Axer Pty Ltd v Environment Protection Authority (unreported, Court of Criminal Appeal, Matter No 60763 of 1992, 22 November 1993 at 13-14). 113 Whilst we understand why the appellant would have argued for $60,000 penalty consistent with its case, the Court is required to make its own judgment about this matter. In our opinion, a penalty of $60,000 could be criticised as inappropriate. No party has contended that the factors taken into account by Backman J were wrong, either in respect of subjective matters, or in respect of the objective seriousness of the offences once liability was resolved. 114 We have considered all of the circumstances of the case, including the seriousness of the offence, and have taken into account the mitigating factors identified in the evidence. The maximum penalty for the offence is $550,000. Having regard to the objective seriousness of the offence and all the circumstances, we consider that an appropriate penalty is $80,000 with each defendant paying 50 per cent of this amount. COSTS 115 In respect to the question of costs, we are of the view that each party should bear their own costs of this appeal. Although important issues of principle were required to be resolved in circumstances where the parties were not in dissimilar positions at first instance, the appellants have failed in relation to the challenge to liability but succeeded in respect of the operation of the partnership which resulted in one penalty being imposed. In that respect the respondent made certain concessions both below and on appeal both as to the challenge to her Honour's approach to sentencing and its implications as to the question of costs. Public interest considerations, therefore, favour that each party should bear their own costs. ORDERS 116 We make the following orders; 1. In matter No IRC 2587 of 2005, the Court makes the following orders: (i) the appeal is upheld to the extent we have determined in this judgment; (ii) the defendant JT & LC Tippett Pty Limited is fined $40,000 with a moiety to the prosecutor; (iii) each party shall bear their own costs of the appeal. 2. In matter No IRC 2588 of 2005, the Court makes the following orders: (i) the appeal is upheld to the extent we have determined in this judgment; (ii) the defendant RD & LF Tippett Pty Limited is fined $40,000 with a moiety to the prosecutor; (iii) each party shall bear their own costs of the appeal.

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