May v Commonwealth [2024] ACTCA 6

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL

Case Title: May v Commonwealth Citation: [2024] ACTCA 6 Hearing Dates: 8-11 May 2023 Decision Date: 1 March 2024 Before: Mossop, McWilliam and Wheelahan JJ Decision: See [201]-[202]. Catchwords: CRIMINAL LAW – APPEAL – Charge of failing to comply with health and safety duty under s 32 of the Work Health and Safety Act 2011 (Cth) – Commonwealth convicted by magistrate but acquitted on appeal to single judge – prosecution appeal to the Court of Appeal – helicopter pilot died following fall into crevasse at fuel cache site in Antarctica – prosecution asserts reasonably practicable measures to ensure safety of worker were not undertaken – determination of whether proposed measures were “reasonably practicable” – whether proposed measure referring to “minimal crevassing” was reasonably practicable – meaning of “minimal crevassing” uncertain – lack of evidence of capacity to interpret satellite data – whether repetition of suite of measures to determine safety of fuel cache site was reasonably practicable – acquittal of Commonwealth not shown to be wrong – appeal dismissed CRIMINAL LAW – JURISDICTION – Helicopter company contracted to Commonwealth to provide helicopter services in Antarctica – charge of breach of s 32 of the Work Health and Safety Act 2011 (Cth) – company acquitted by magistrate – prosecution appeal to Supreme Court – whether Supreme Court has jurisdiction to hear appeal against acquittal on Commonwealth summary offence – whether review appeal by prosecution under Pt 3.10.3 of the Magistrates Court Act 1930 (ACT) picked up by s 68(2) of the Judiciary Act 1903 (Cth) – issue not necessary to decide in circumstances where dismissal of charges against the Commonwealth require the dismissal of charges against the helicopter company in any event Legislation Cited: Civil Aviation Regulations 1988 (Cth) Judiciary Act 1903 (Cth), s 68(2) Magistrates Court Act 1930 (ACT), ss 28, 208, 219B, 219D, Pt 3.10.3 Work Health and Safety Act 2011 (Cth), ss 8, 12, 18, 19, 30, 32, Div 2, Div 3, Div 4, Pt 2 Cases Cited: Australian Securities and Investments Commission v Vis [2000] SASC 258; 77 SASR 490 Babet v Electoral Commissioner [2023] FCAFC 164 Carmichael v The Commonwealth of Australia (unreported, Magistrates Court of Victoria, Magistrate Hawkins, 19 November 2020) May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 1) [2019] ACTMC 20 May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31 May v Helicopter Resources; Commonwealth of Australia v May (No. 2) [2021] ACTSC 123 May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295 Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297; 137 IR 253 Newcastle Wallsend Coal Company Pty Limited & Ors v Inspector McMartin [2006] NSWIRComm 339; 159 IR 121 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Parties: Christopher May (Appellant) Helicopter Resources Pty Ltd (Respondent) Commonwealth of Australia (Respondent) Representation: Counsel P Neil SC, C Jacobi KC and B Narula (Appellant) G O’Mahoney and D Habashy (Helicopter Resources Pty Ltd) G Livermore SC and C Currie (Commonwealth) Solicitors Commonwealth Director of Public Prosecutions (Appellant) Norton White (Helicopter Resources Pty Ltd) Maddocks (Commonwealth) File Numbers: ACTCA 34 of 2021 ACTCA 35 of 2021 Decision Under Appeal: Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 10 June 2021 Case Title: May v Helicopter Resources; Commonwealth of Australia v May Citation: [2021] ACTSC 116 THE COURT: Introduction

These appeals arise out of a tragic accident that occurred on 11 January 2016 during helicopter operations undertaken on behalf of the Australian government in Antarctica. A helicopter pilot, David Wood, had deposited drums of aviation fuel at a fuel cache on the Western Ice Shelf, an ice covered area to the east of Davis Station. Unbeknownst to him, he had landed his helicopter with its skids across a snow-covered crevasse. When returning to his helicopter after unhitching the fuel drums, the snow over the crevasse gave way and he fell into the crevasse. Although he was subsequently rescued from the crevasse, he died from the effects of hypothermia the next day.
The informant, Mr May, an officer of the Commonwealth authority responsible for investigating breaches of the Work Health and Safety Act 2011 (Cth) (WHS Act), brought proceedings against the Commonwealth itself and Helicopter Resources Pty Ltd (Helicopter Resources), the company that employed Mr Wood. Three charges were brought against the Commonwealth. Three charges were brought against Helicopter Resources.
As set out in more detail below, the charges laid in the Magistrates Court asserted that both the Commonwealth and Helicopter Resources had contravened s 32 of the WHS Act. That section requires that the prosecution establish that the accused person failed to take reasonably practicable measures to ensure the health and safety of the relevant helicopter pilots who landed on the West Ice Shelf.
In the Magistrates Court, the prosecution succeeded against the Commonwealth on two of the three charges laid, but Helicopter Resources was acquitted on all the charges that it faced: May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31.
The Commonwealth appealed against its convictions to the Supreme Court. The prosecution appealed against the acquittal of Helicopter Resources. The Commonwealth appeal was successful and the appeal against the acquittal of Helicopter Resources was unsuccessful: May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116.
The prosecution appealed against both aspects of the Supreme Court’s decision. Objections to the competency of the appeals were dismissed by the Court of Appeal: May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295.

Summary

The prosecution put forward a detailed and interlinked package of six measures which it said should have been taken in relation to flights to fuel depot sites on the West Ice Shelf. The manner in which those particularised measures were drafted meant that the prosecution would fail unless it established beyond reasonable doubt that each of the measures was “reasonably practicable”. If one measure was not proven beyond reasonable doubt to be reasonably practicable, then the whole package of measures would not have been proven to be such. Because of this feature of the charges, the case run by the prosecution was one upon which it was particularly difficult for the prosecution to succeed.
So far as the case against Helicopter Resources was concerned, the manner in which the breaches of s 32 were particularised was such that if the prosecution of the Commonwealth failed because the package of measures was not proved beyond reasonable doubt to be reasonably practicable, then the charges against Helicopter Resources would necessarily fail.
There were a multitude of issues that were contested before the magistrate and the appeal judge. There are a multitude of issues raised by the prosecution’s appeal and detailed Notices of Contention filed on behalf of the Commonwealth and Helicopter Resources. It is not necessary to determine all of those issues in order to determine these appeals.
For the reasons which follow, we have concluded that the appeal judge was correct in allowing the Commonwealth’s appeal against its conviction and dismissing the prosecution appeal against the acquittal of Helicopter Resources. In order to reach that conclusion, it has only been necessary to determine one ground of the prosecution’s appeal and one ground of the Commonwealth’s Notice of Contention. Those grounds concern findings made by the appeal judge about the reasonable practicability of the testing and assessment measures concerning “minimal crevassing”, and the reasonable practicability of repeating the precautionary measures specified every 14 days – a finding which the Commonwealth contended should have been made by the appeal judge and which, if made, was fatal to the charge against it.
Those matters have been resolved in the Commonwealth’s favour and mean that a finding of a lack of guilt in respect of the Commonwealth and Helicopter Resources would inevitably follow. In those circumstances, it is unnecessary to determine the large number of other issues raised in the Notice of Appeal and the Notices of Contention.

The charges

The Commonwealth faced three charges: (a) Charge 1 alleged that on 8 December 2015, the Commonwealth, which was conducting a business or undertaking at Davis Station in the Australian Antarctic Territory and which had a health and safety duty under s 19(1) of the WHS Act to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by the defendant, in particular Mr Bryan Patterson, while they were at work in the defendant’s business or undertaking, failed to comply with that duty and exposed workers to the risk of death or serious injury, contrary to s 32 of the WHS Act. (b) Charge 2 was to similar effect, except that it related to the date of 28 December 2015 and the particular workers identified were Mr David Wood and Mr Paul Sutton. (c) Charge 3 was in similar terms, except that it related to the date of 11 January 2016 and the workers identified were Mr David Wood and Mr Paul Sutton.
Helicopter Resources also faced three charges: (a) Charge 1 was in similar terms to charge 1 laid against the Commonwealth in that it alleged a breach of s 32 relating to 8 December 2015 and the worker involved was Mr Bryan Patterson. (b) Charge 2 was in similar terms to charge 2 laid against the Commonwealth in that it referred to the date of 28 December 2015 and the workers involved were Mr David Wood and Mr Paul Sutton. It was, however, particularised in a manner different to charge 2 against the Commonwealth. (c) Charge 3 was in similar terms to charge 3 laid against the Commonwealth in that it related to the date of 11 January 2016 and the workers involved were Mr David Wood and Mr Paul Sutton.
The particulars provided in relation to each charge were extensive. Each of the charges related to the conduct of helicopter flights in the Australian Antarctic Territory. The workers named in the charges were helicopter pilots. In each case, it was alleged that the health and safety risk to which the pilots were exposed was the risk of serious injury or death as a result of falling into a crevasse. So far as charges 1 and 3 against the Commonwealth were concerned, the measures that the prosecution alleged ought to have been taken were a collection of six identified measures relating to the assessment of suitability of the landing site. The measures are set out later in these reasons (see [22] below). So far as charge 2 against the Commonwealth was concerned, the measure that the prosecution alleged ought to have been taken was to require helicopter pilots to wear personal protective equipment in the form of appropriately waterproofed and thermally insulated clothing at all times when they were outside the helicopter whilst at a deep field fuel cache. This was the charge upon which the Commonwealth was acquitted and in relation to which there was no appeal. It is not necessary to say anything more about this charge.
In relation to the charges against Helicopter Resources, they were particularised as involving the failure by Helicopter Resources to ensure that the Commonwealth had undertaken the six identified measures before the relevant pilots landed and walked on the ice surface.

Statutory provisions

As at the date referred to in the charges, the relevant provisions of the WHS Act were as follows: 32 Failure to comply with health and safety duty—Category 2 A person commits a Category 2 offence if: (a) the person has a health and safety duty; and (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. Penalty: [The category 2 monetary penalty.]
Section 30 provides that a “health and safety duty” is a duty imposed under Divs 2, 3, or 4 of Pt 2 of the Act. Relevant in this case is s 19, which falls within Div 2 of Pt 2. 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. …
By reason of these provisions, in order to succeed in proving breaches of s 32, it was necessary for the prosecution to establish, beyond reasonable doubt, the following elements: (a) The defendant was conducting a business or undertaking. (b) The defendant owed a health and safety duty to ensure, as far as was reasonably practicable, the health and safety of: (i) workers engaged by it; (ii) while the workers were at work in the business or undertaking. (c) The defendant failed to comply with its health and safety duty. (d) The failure exposed an individual to a risk of death or serious injury or illness.
Central to the determination of the scope of a defendant’s health and safety duty is the definition of “reasonably practicable”. That is because it is a qualification on the obligation in s 19 to “ensure” the health and safety of workers. It thereby determines the standard of conduct which must be met. What is “reasonably practicable” for the purposes of s 19 is determined by s 18, which provides: 18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
In order to succeed, the prosecution must identify measures which could have been but were not taken in order to ensure the safety of workers and prove beyond reasonable doubt that they were “reasonably practicable” in the sense required by s 18. Factual background

Identified hazards / risk Mitigators implemented / in place Over ice / snow flight Good weather forecast for sling loading – good surface and horizon definition Known fuel depot site Sling load Within [search and rescue] range 65. Ms Labudda was of the understanding that the site had been last visited in 2012 but did not know what, if any, assessment of the site had been conducted. She was of the understanding that Mr Patterson could fly to the site and, if he was not comfortable landing, return to the station without landing at the site. 66. Mr Patterson recorded in the aircraft Daily flight log and air task – Risk assessment, the following entry:

Additional identifiable hazards Risk control measures Snow landings Good day for surface definition

The flight log records that Mr Patterson departed Davis Station at 1420 hours, travelled to the WIS and returned at 1702 hours. (It also recorded numerous subsequent flights to and from the fixed wing landing strip located near Davis Station, with the last flight ending at 2236 hours.) 68. When Mr Patterson arrived at the planned location, he was not able to locate the existing fuel drums and did not like the look of the surface for landing. He decided to carry on further to locate a better site to land the fuel drums that he was carrying. He noticed the ice was progressively less crevassed further away from the coast. He located a site of blue ice and circled the site a couple of times. He then landed the drums, then the helicopter, disconnected the drums and retrieved the long line and drum hooks. During this process he walked on the ice which he observed to be very solid and like concrete. He also took photographs. 69. At some point before landing, Mr Patterson communicated his intentions to the duty radio operator at Davis Station and was not told to do anything different. The radio log records several communications including the following prior to Mr Patterson landing: By [satellite phone] 1st [way point] too many crevasses – moving to second [way point] 10 nm away in search of fuel drums will call again by [satellite phone] on the ground 70. Mr Patterson then returned to Davis Station without incident. He later spoke separately with Mr Benavente, Ms Labudda and Mr [De] Bruyn and explained what had occurred. He also provided Mr Benavente with the coordinates and a photograph of the landing site. That same day, Mr Benavente emailed those coordinates and photograph to Ms Labudda. During a subsequent rotation hand over take over, Mr Patterson described the site to Messrs Sutton and Wood. 71. There was no evidence that anyone considered that the original site may have moved with the flow of ice over the intervening three years. The flight of 28 December 2015 72. On 28 December 2015, Messrs Sutton and Wood were tasked with transporting eight drums of fuel to Nunatak 1. The distance to Nunatak 1 from Davis Station required a refuelling stop at the incident site. It also required the use of two helicopters, which were described as providing mutual search and rescue capability. 73. The ATRA noted ‘Stopping at fuel cache on Western Ice Shelf to refuel’, and recorded the following assessment:

Identified hazards / risk Mitigators implemented / in place Snow landing Good weather conditions Sling loading Good weather conditions

Mr Sutton made no entry under ‘additional identifiable hazards’ or ‘Risk control measures’ in the aircraft Daily flight log and air task – Risk assessment. The flight log records he left Davis Station at 0911 hours and returned at 1409 hours. 75. Mr Wood recorded similar flight times, and the following entry in the aircraft Daily flight log and air task – Risk assessment:

Additional identifiable hazards Risk control measures Unknown landing site Recon

Messrs Sutton and Wood flew in separate helicopters to the incident site, each carrying four drums of fuel on a long line. Both helicopters landed at the incident site. The site still had a surface of exposed blue ice. The helicopters were refuelled using the drums already at the site. A drum was caught briefly in the top of a narrow crevasse while being rolled to Mr Wood’s helicopter by both pilots. There were also other cracks and crevasses in the ice visible within metres behind the helicopters. Mr Sutton expressed reservations about the presence of the crevasses, and Mr Wood responded by saying words to the effect, ‘Better the devil you know than the one you don’t’. 77. Both helicopters [were] then flown to Nunatak 1. While it was originally planned to land on the nunatak outcrop, it was assessed as too small, and the eight drums of fuel were ultimately cached on a nearby area of blue ice. 78. Mr Sutton later informed Ms Labudda about ‘cracks’ in the blue ice at the incident site and about Mr Wood’s comment ‘Better the devil you know’. The flight of 11 January 2016 79. On 11 January 2016, Ms Labudda requested Mr Sutton transport four drums of fuel to the incident site on the WIS. Mr Sutton expressed reservations about flying that distance without the support of a second helicopter. Ultimately, Messrs Sutton and Wood were tasked by Ms Labudda to transport eight drums of fuel to the incident site using two helicopters. 80. The ATRA recorded the assessment:

Identified hazards / risk Mitigators implemented / in place Snow landing Good weather conditions Been at this location previously this year Sling loading Suitable conditions

During the ATRA process, both Mr Sutton and Mr Wood were present and neither raised any concerns with Ms Labudda about their earlier observations of the incident site. 82. In the aircraft Daily flight log and air task – Risk assessment, Mr Sutton recorded departing Davis Station at 1424 hours and arriving at 1553 hours. He also made the following entry:

Additional identifiable hazards Risk control measures Stress & fatigue Team work (sic) and good coms

It is unclear whether these last entries were made before or after the incident involving Mr Wood. (The entries may relate to the response to the incident, which included Mr Sutton flying his helicopter between Davis Station and the WIS a further five times that day.) 83. Mr Wood made no entry under ‘Additional identifiable hazards’ or ‘Risk control measures’ in the aircraft Daily flight log and air task – Risk assessment. He recorded flight times similar to those recorded by Mr Sutton. 84. Messrs Sutton and Wood flew to the incident site. Both expected the site to be blue ice. However, no blue ice was visible. Instead the site was completely white with two drums protruding from a shallow layer of snow. 85. Mr Wood was ahead of Mr Sutton, flew directly into the site, and lowered the fuel drums under his helicopter to the snow. He continued to descend. Mr Sutton requested by radio that Mr Wood drop his long line and allow Mr Sutton to place his drums beside the others. Mr Wood dropped his long line and disappeared from Mr Sutton’s sight. Mr Sutton placed his drums next to the others and dropped his long line. The cracks and crevasses were not visible through the snow and there were no further communications before both helicopters landed in locations similar to where they had landed previously. However, both helicopters were located further away from the fuel drums than they had been on the previous visit. Mr Sutton shut his helicopter down. Mr Wood left his helicopter running. 86. Both pilots stepped out of their helicopters and walked to the drums. On the way, Mr Sutton stepped into a crevasse up to about his knee. He mentioned that event to Mr Wood when they were side by side at the drums disconnecting their long lines. Both walked back to their helicopters to stow their long lines. Mr Sutton last saw Mr Wood just in front of the latter’s helicopter. Mr Sutton stowed his long line and then noticed he could no longer see Mr Wood. Upon further investigation Mr Sutton observed a hole in the snow immediately adjacent to the left skid of Mr Wood’s helicopter. That hole exposed a crevasse that ran transversely under both skids. Mr Wood’s footsteps led to the hole, and Mr Wood’s long line protruded from the hole. 87. Mr Sutton shut down Mr Wood’s helicopter and managed to speak briefly to Mr Wood who could be heard to respond from, but not seen in, the crevasse. Mr Sutton notified the duty radio operator at Davis Station and hastily flew back to Davis Station in his helicopter to collect a crevasse rescue team. 88. The rescue team of three and Mr Sutton travelled back to the incident site in Mr Sutton’s helicopter. The team conducted heli crevasse probing before the helicopter finally landed and shut down at 1855 hours. 89. Mr Wood was retrieved from the crevasse and transported directly to Davis Station. That trip took place between 2000 and 2045 hours. Tragically, Mr Wood died from hypothermia, which was caused by the time he spent trapped in the crevasse. 90. Mr Sutton returned to the site to collect the two remaining FTOs and to tie down Mr Wood’s helicopter, before returning to Davis Station at 0036 hours. When leaving the site for the final time, the crevasse was clearly visible from the airborne helicopter due to the low angle of the sun. The particularised measures

Particulars of the measures that the prosecution alleged ought to have been taken to ensure the health and safety of workers were set out in each Information. So far as the charges against the Commonwealth were concerned, the measures were set out in paragraph 15 of the particulars relating to charge 1, and paragraph 16 in relation to charge 3. The particulars in relation to charge 1 provided: 15. The Defendant failed to provide and maintain a safe system of work for the establishment and utilisation of deep field fuel cache sites, including the 2012 Site and the Incident Site in that; 15.1 it failed to ensure that before workers were permitted to land a helicopter and/or walk on the ice surface at the deep field fuel cache sites, including the 2012 Site and the Incident Site, the sites had been subject to the following testing and assessment to confirm that, so far as was reasonably practicable, there were no crevasses at each site: 15.1.1 obtaining and analysing publicly available satellite imagery of the site to determine if there was evidence of crevassing and the location of the grounding line (where crevassing is likely to be more prevalent) and, if such analysis indicated that there was likely to be minimal crevassing at that site, proceeding to the next step of: 15.1.2 engaging in an air task risk assessment process in respect of the site for the purposes of identifying risks of crevasses; and thereafter: 15.1.3 undertaking low-light helicopter reconnaissance by someone suitably trained to do so, such as a Field Training Officer, to inspect the site and determine if there was evidence of crevasses, including crevasses hidden by snow bridges; and, if such analysis indicated that there was likely to be minimal crevassing at that site, proceeding to the next step of: 15.1.4 undertaking helicopter-crevasse probing of the site by someone suitably trained to do so such as Field Training Officers; and 15.1.5 marking out the boundaries of the area in which it was deemed safe to land and walk and beyond which would be an exclusion zone; and 15.1.6 re-doing the steps at 15.1.1 to 15.1.5 if more than two weeks had expired or if there had been a significant weather event since the last assessment.
The particulars provided for charge 3 were in similar terms to those for charge 1 except the relevant paragraph number was 16 rather than 15.
As originally drafted, the particulars went on to provide further particulars (in paragraphs 15.2-15.3 and 16.2-16.3, respectively). However, as a result of elections made by the prosecution at the commencement of the trial, those particulars were not pressed in relation to charges 1 and 3.
In these reasons, the measures set out in paragraph 15.1 and equivalent paragraphs will be described as “the package of measures”. Individual measures equivalent to those in subparagraphs 15.1.1-15.1.6 will be described as measures 1 to 6, respectively.
The package of measures was also picked up in the particulars of the charges against Helicopter Resources. In each of the three charges, the allegation against Helicopter Resources was that it failed to “ensure” that the Commonwealth had undertaken the package of measures.

How the prosecution sought to prove its case

A significant feature of the prosecution case was the manner in which it sought to establish that there were reasonably practicable measures that ought to have been taken by the defendants. This was done largely by reference to measures that were in fact subsequently taken by the Commonwealth, in the form of the Australian Antarctic Division (AAD), following the death of Mr Wood and by reference to the evidence of Dr Colgan, an expert glaciologist.
In relation to the measures taken by the AAD following the death of Mr Wood, it was asserted, by reference to the taking of those measures and the taking of similar measures in relation to other aspects of the AAD’s operations in Antarctica, that the particularised measures were reasonably practicable ones which ought to have been taken prior to the charged incidents.
The evidence of Dr Colgan was relied upon in order to prove facts which would assist in supporting the contention that the proposed measures were reasonably practicable ones, but it did not directly address the package of measures proposed by the prosecution.
In fact, notwithstanding that the prosecution called a number of witnesses who were or had been employees of the AAD and who had long experience with helicopter operations in Antarctica, no witness gave evidence that the package of measures identified in the particulars was reasonably practicable. Further, no evidence was called in relation to the practices of other governments or entities conducting helicopter operations elsewhere in Antarctica.
As a result, the establishment beyond reasonable doubt that the particularised measures were reasonably practicable ones was dependent upon conclusions to be drawn by the tribunal of fact itself, rather than by reference to the opinion of a person with actual experience in Antarctica or the conduct of other comparable governments or entities elsewhere in Antarctica. Given that the field of helicopter operations over crevassed ice sheets and ice shelves in Antarctica is something not commonly within the experience of judicial factfinders, it is a case in which it would not be difficult to establish a reasonable doubt about whether, in the absence of hindsight, the complex cascading package of measures proposed was a reasonably practicable one.

The magistrate’s reasons

The magistrate published two sets of reasons. The first related to an application by the prosecution to amend the particulars of the charges: May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 1) [2019] ACTMC 20 (May (No 1)). The second involved the determination of the substance of the charges: May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31 (May (No 2)).

May (No 1)

So far as the application to amend particulars was concerned, this was an application that was made on the first day of the hearing and refused on the second day of the hearing. The proceedings had been commenced 18 months’ earlier and the matter listed for a six-week hearing. As originally particularised, the charges had alleged that the reasonably practicable measures that ought to have been taken to avoid the hazard of hidden crevasses were the package of measures, namely measures 1 to 6.
The most significant amendment that was sought was to amend the particulars so that they alleged that each of measures 1 to 6 were separately required to be carried out, with the consequence that if the prosecution proved that any one of them had not been carried out, then the charge would be made out.
The provision relied upon for the purposes of the amendment was s 28 of the Magistrates Court Act 1930 (ACT). The magistrate proceeded on the basis that, for the purposes of enlivening the operation of that provision, the prosecutor could “object” to the form or substance of the information: May (No 1) at [9].
The prosecutor had pointed to “a perceived risk about their prospects of securing a conviction” as the alleged defect for the purposes of the provision. The prosecutor identified that its prospects of securing a conviction would be better if the various steps alleged to be required for the purposes of assessment of the site were alternative measures rather than cumulative ones. The magistrate was not satisfied that the possibility of a stronger case amounted to a “defect in substance or form” for the purposes of s 28: May (No 1) at [11].
Notwithstanding this conclusion, which was dispositive of the application, his Honour went on to consider the other objections made by the defendants to the amendment of the particulars. He rejected a contention that the amendment would introduce impermissible uncertainty and duplicity: May (No 1) at [12]. However, he accepted that, while the underlying substratum of facts would not change, the amendment of the prosecution case would require the defendants to focus upon each of the steps within the site assessment process, rather than just a chosen few. In circumstances where the proceedings had been on foot for 18 months and the defendants would have made a range of forensic decisions based on the way in which the claim was put, the bringing of the application on the first day of the six-week hearing would create unfair prejudice amounting to injustice to each defendant: May (No 1) at [14]. Although an adjournment had not been suggested as a remedy for such injustice, the magistrate indicated that he would have been very reluctant to accept that approach, having regard to the lack of explanation for the late timing of the application and the substantial impact upon the business of the court that would arise from the adjournment of the hearing.
This decision of the magistrate was not challenged in the appeal to the Supreme Court.

May (No 2)

At the outset of May (No 2), the magistrate emphasised that the proceedings were not an administrative commission of inquiry which was inquisitorial in nature, but rather a criminal prosecution, which is adversarial in nature. It was therefore necessary for the prosecution to identify the “specified measures” which it alleged were required to be taken and for the court to decide whether the charges had been established by reference to those specified measures. The magistrate recorded at [6]: It is not for the Court to substitute the prosecution’s charges or specified measures with variations that may have better prospects of success or fit better with the way the evidence fell during the hearing.
The magistrate described the relevant provisions of the WHS Act and the specified measures that the prosecution asserted ought to have been taken.
The magistrate set out some uncontroversial principles as to the nature of a criminal trial. He then set out what was described as “the unchallenged facts”, which are set out earlier in these reasons (see [21] above).
Rather than address the charges by reference to whether the elements of the offence had been established, the magistrate then went on to pose and address a series of questions which he had identified. They were: (a) Did the establishment of fuel cache sites amount to a business or undertaking by the Commonwealth? (b) Does the [WHS Act] impose a duty on Helicopter Resources? (c) What was the probability of crevasses at the incident site? (d) Was a reconnaissance conducted immediately prior to landing on 11 January 2016? (e) Did the Civil Aviation Safety Authority’s rules prevent the carrying of Field Training Officers when carrying fuel externally by sling? (f) Did any failure to comply with a duty expose an individual to a risk of death or serious injury? (g) Did the Commonwealth fail to comply with a health and safety duty? (h) Did Helicopter Resources fail to comply with a health and safety duty?
Helicopter Resources had submitted that the prosecution had failed to establish that the pilots were carrying on work as part of the conduct of a “business or undertaking” of the Commonwealth when operating at the fuel cache sites. The magistrate rejected this submission, finding that the Commonwealth’s “business or undertaking” included the activities of the Helicopter Resources pilots at, or when approaching, the incident site: May (No 2) at [102].
The magistrate next considered the submission made by Helicopter Resources that the terms of s 12 of the WHS Act had the effect that the Act did not apply to it. The magistrate (at [105]) pointed out that each component of s 12 of the Act contains a nexus to the Commonwealth or a Commonwealth public authority. However, one element of s 12(1) applies to a “place” where the Commonwealth or a public authority conducts a business or undertaking. The magistrate found (at [111]) that the Commonwealth was conducting a business or undertaking at various sites in Antarctica, including the incident site. The pilots were employees of a contractor carrying out work for the business or undertaking and were thus “workers” under the Act. Section 8 of the Act provides that a “place” is “where a worker goes, or is likely to be, while at work”, namely, the incident site. Therefore, the Act applied to the incident site and imposed a work health and safety duty on Helicopter Resources.

The appeal judge’s reasons

The Commonwealth appealed to the Supreme Court against the finding that it was guilty on charges 1 and 3. The prosecution appealed against the acquittal of Helicopter Resources on all three charges.
The appeals were brought pursuant to different statutory provisions. The Commonwealth appealed against its convictions pursuant to s 208 of the Magistrates Court Act. The prosecution (referred to in the appeal judge’s reasons as Comcare) appealed against the acquittal of Helicopter Resources pursuant to the review appeal provision in s 219D of the Magistrates Court Act.
In his Honour’s reasons, the appeal judge said that it was common ground between the parties that if the Commonwealth appeal succeeded, then Comcare’s appeal against Helicopter Resources would necessarily fail: May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116 (AJ) at [11].
The appeal judge indicated that only a limited number of the issues identified and addressed by the magistrate were agitated on appeal. They were: … (f) Did any failure to comply with a duty expose an individual to a risk of death or serious injury? (g) Did the Commonwealth fail to comply with a health and safety duty? (h) Did Helicopter Resources fail to comply with a health and safety duty?
The appeal judge set out the measures that the prosecutor alleged needed to be carried out. His Honour determined that the magistrate ought to have found, in relation to both defendants, that the first measure concerning satellite imaging was not reasonably practicable and therefore the balance of the measures fell with it. His Honour recorded that the defendants focused their attack on the first measure by reference to the lack of definition or explanation of the term “minimal crevassing” and that the presence of a person capable of interpreting any available satellite imagery was not established.
His Honour said that if the existence of “minimal crevassing” was to generate the balance of the measures that were at the core of the prosecution case, then that expression needed to be properly defined: AJ at [30]. His Honour then referred to the reasons of the magistrate in relation to the availability and utility of satellite imagery. That was summarised by the appeal judge as involving acceptance that satellite imagery might be “years old” and might not indicate anything beyond a propensity for crevassing, but nevertheless may be an important step because new imagery may become available and the new assessment may provide additional information: AJ at [33].
His Honour described this as having “a somewhat speculative basis”, which depended upon the possibility that at some time satellite imaging may be useful: AJ at [34]. However, the prosecution measures had to be reasonably practicable before every helicopter flight or at least every day of a helicopter flight. His Honour said (at [34]): Satellite imagery, without more, no doubt could have its place in an overall regime controlling helicopter flights. But to require it before each flight, or even daily, and as a necessary precondition to the taking of other measures, does not fit within the description of being reasonably practicable.

Grounds of appeal: May v Commonwealth

The prosecution appealed against the appeal judge’s acquittal of the Commonwealth. The grounds of appeal are as follows: Ground 1: As to the first measure particularised in the information, the appeal judge erred in finding that the magistrate erred in holding that this measure was reasonably practicable, including that the appeal judge erred in finding that: a. the existence of “minimal crevassing” needed to be properly defined; b. the magistrate determined the first measure on the “somewhat speculative basis” that “at some time or another, satellite imagery may be useful”; c. proof of reasonable practicability required evidence that a qualified person was actually retained by the Australian Antarctic Division. Ground 2: The appeal judge erred in finding that the particulars were cast so that the assessment of reasonable practicability applied to every helicopter flight and not just helicopter flights to fuel cache sites on the Western Ice Shelf. Ground 3: The appeal judge erred in not finding that there was an actual risk or hazard that existed in relation to the flights of 8 and 28 December 2015. Ground 4: As to the element in s 32(c) of the Work Health and Safety Act 2011(Cth), the appeal judge erred: a. In finding that the magistrate’s reasons did not make findings about this element; b. In finding that the approach to this element was correctly stated in Carmichael v Commonwealth of Australia (Unreported, Magistrates Court of Victoria, Hawkins M, 19 November 2020) and by not analysing the element by reference to the Criminal Code (Cth).
The Commonwealth filed a Notice of Contention in the following terms. 1. Insofar as it may be argued by the Appellant that the learned judge did not find that ‘Measure 6’ (specified in particular 15.1.6 of Charge 1 and particular 16.1.6 of Charge 3) was not reasonably practicable because it had not been proved that the 14-day reassessment time period was reasonably practicable, his Honour did, or alternatively should have, so found. (Reasons [40]-[42]). 2. The learned judge erred in failing to find that Charge 1 ought have been dismissed because the prosecution did not prove beyond reasonable doubt that the Respondent ‘permitted’ the specified pilot to land at the 2012 Site and the Incident Site on 8 December 2015 (Reasons [55]-[56]). 3. The learned judge erred in failing to find that Charge 3 ought have been dismissed because the prosecution did not prove beyond reasonable doubt that the Respondent ‘required’ the specified pilots to land at the Incident Site on 11 January 2016 (Reasons [57]-[66]). 4. The learned judge should have found that the Magistrate below had erred in his findings of fact on the issue of whether Captain Wood conducted aerial reconnaissance before landing on 11 January 2016, including by erroneously reversing the onus of proof (Reasons [99]). 5. The learned judge erred in finding that Measures 3, 4 and 5 (particulars 15.1.3-15.1.5 of Charge 1, and particulars 16.1.3-16.1.5 of Charge 3) were reasonably practicable (Reasons [101]). 6. The learned judge ought have found that the system, measures and procedures that the Respondent had in place, which included a pilot conducting aerial reconnaissance of a potential landing site prior to deciding whether to land or not, had reduced the risk so far as was reasonably practicable and that the prosecution had failed to prove beyond reasonable doubt that the measures specified in Particulars 15.1 of Charge 1 and 16.1 of Charge 3 would have reduced the risk further than the system already in place (Reasons [90(b)], [91], [103]). 7. Further or alternatively to ground 6 above, the learned judge should have found that the alleged measures either individually or collectively were not a reasonably practicable way of minimising the risk because they did not include the essential safety measure of the pilot conducting an aerial reconnaissance of the potential landing site prior to deciding whether to land or not. (Reasons [90], [91], [103]). 8. The learned judge ought to have found that the measures alleged by the prosecution were not reasonably practicable because it had not adduced evidence to establish that the financial, physical and human resources required to implement the measures were available and if available were reasonably practicable to provide. (Reasons [104]-[107]).

Grounds of appeal: May v Helicopter Resources

The prosecution also appealed against the dismissal of its appeal in relation to Helicopter Resources. The grounds of appeal were as follows: Ground 1: There was a prima facie case of error or mistake, or the decision should not in law have been made because: 1.1 As to the first measure particularised in the information, the appeal judge erred in finding that the magistrate erred in holding that this measure was reasonably practicable, including that the appeal judge erred in finding that: a. the existence of “minimal crevassing” needed to be properly defined; b. the magistrate determined the first measure on the “somewhat speculative basis” that “at some time or another, satellite imagery may be useful”; c. proof of reasonable practicability required evidence that a qualified person was actually retained by the Australian Antarctic Division. 1.2 The appeal judge erred in finding that the particulars were cast so that the assessment of reasonable practicability applied to every helicopter flight and not just helicopter flights to fuel cache sites on the Western Ice Shelf. 1.3 The appeal judge erred in not finding that there was an actual risk or hazard that existed in relation to the flights of 8 and 28 December 2015. 1.4 As to the element in s 32(c) of the Work Health and Safety Act 2011 (Cth), the appeal judge erred in finding that: a. The magistrate’s reasons did not make findings about this element. b. The approach to this element was correctly stated in Carmichael v Commonwealth of Australia (Unreported, Magistrates Court of Victoria, Hawkins M, 19 November 2020) and the appeal judge did not analyse the element by reference to the Criminal Code (Cth). Ground 2: The appeal judge erred in failing to determine (and consequently failing to find the respondent guilty) that there was a prima facie case of error or mistake by the Magistrates Court; or the decision of the Magistrates Court should not in law have been made; in that: 2.1 the magistrate erred in terms of the nature of concurrent and non-transferable duties under the WHS Act and miscast the duty of an experienced Antarctic helicopter operator in the position of Helicopter Resources (ref Grounds 4.1 and 4.5 in the Supreme Court; ref MJ [163], [167]); 2.2 the magistrate misunderstood and misapplied the principles of reliance given the nature of the prosecution’s case (ref Grounds 4.4 and 4.5 in the Supreme Court; ref MJ [165], [167]); 2.3 the magistrate erred by miscasting the prosecution’s case by implicitly finding, contrary to the prosecution case, that Helicopter Resources was obliged to conduct testing and assessment of the relevant sites (ref Grounds 4.1, 4.2, 4.3 and 4.5 in the Supreme Court; ref MJ [163]-[165], [167]).
Helicopter Resources filed a Notice of Contention. The Notice of Contention raised the following matters: 1. The learned judge should have found that it was not reasonably practicable for Helicopter Resources Pty Ltd to have ensured that the specified measures were taken by the Commonwealth before permitting the pilots to land and walk on the relevant sites because, in addition to the reasons identified by the learned judge: … [10 paragraphs follow] 2. A proper evaluation of the likelihood of the relevant hazard or risk occurring precludes any conclusion that the specified measures were reasonably practicable, because: … [five paragraphs follow] 3. Insofar as it may be argued by the appellant that the learned judge did not find that “Measure 6” was not reasonably practicable because it had not been proved that the 14-day reassessment time period was reasonably practicable, the learned judge did, or alternatively should have, so found (J[40]-[42]). The respondent contends that the following questions of fact or law were incorrectly decided by Justice Elkaim in the order appealed from: 4. The learned judge erred insofar as he failed to have adequate or any regard to the limitations, specified in s 219D of the Magistrates Court Act 1930 (ACT), on the grounds on which a decision of the Magistrates Court was capable of being reviewed (J[4]). 5. In addition to the failure of the appellant to demonstrate an error or failure on the part of the learned magistrate within the terms of section 219D of the Magistrates Court Act 1930 (ACT), the respondent contends that if contrary to its primary contentions there was any ground for review pursuant to section 219D the following questions were incorrectly decided by Justice Elkaim in the order appealed from and constitute additional grounds for dismissal of the appeal: a. The learned judge erred in finding that Measures 3 and 4 of the specified measures were reasonably practicable (J[101]) for a number of reasons, including but not limited to the following: … [three paragraphs follow] b. The learned judge should have found that the learned Magistrate had erred in his findings of fact on the issue of whether Captain Wood conducted an aerial reconnaissance before landing on 11 January 2016 (contrary to J[99]), because: … [eight paragraphs follow] c. The learned judge should have found that the system, measures and procedures in place, which included a pilot conducting aerial reconnaissance of a potential landing site prior to deciding whether to land, had reduced the relevant risk so far as was reasonably practicable and that the prosecution had failed to prove beyond reasonable doubt that the specified measures would have reduced the risk further than the system already in place (contrary to J[90](b), [91], [103]). d. The learned judge should have found that the specified measures (either individually or collectively) were not a reasonably practicable way of minimising the risk because they did not include the essential safety measure of the pilot conducting an aerial reconnaissance of the potential landing site prior to deciding whether to land (contrary to J[90], [91], [103]). 6. The learned judge erred in failing to conclude that there was no jurisdiction to entertain the review appeal, on the basis that there is no Commonwealth law that “picks up” the provisions of Part 3.10.3 of the Magistrates Court Act 1930 (ACT) that confer a right of appeal against the dismissal of a summary offence (J[12]). 7. The learned judge erred in failing to conclude that the Work Health and Safety Act 2011 (Cth) did not impose a work health and safety duty on Helicopter Resources Pty Ltd (J[12]), in particular because: … [three paragraphs follow] 8. The learned judge erred in failing to conclude that in operating at the fuel cache sites the pilots were not carrying on work as part of the business or undertaking of the Commonwealth for the purposes of the Work Health and Safety Act 2011 (Cth). The appeal in relation to the acquittal of the Commonwealth

Ground 1: Satellite imagery and “minimal crevassing”

The ground of appeal

This ground of appeal challenges three aspects of the finding made by the appeal judge in relation to measure 1, which the appeal judge found had not been proved beyond reasonable doubt to be reasonably practicable: (a) the finding that if the existence of “minimal crevassing” was to act as a threshold, enlivening the balance of the measures, it needed to be properly defined; (b) the finding that the magistrate had determined the issue on a “somewhat speculative basis” depending upon the possibility that satellite imaging may be useful; and (c) the finding that reasonable practicability required evidence that a qualified person was actually retained by the Australian Antarctic Division. The decisions below
Although the reasons of the magistrate and the appeal judge on this issue have been summarised at [55] and [71]-[75․74] above, it is necessary to set out the reasons of both in more detail. The reasons of the magistrate in relation to satellite imagery were as follows: 140․ The first step involved the obtaining and analysing of publicly available satellite imagery of the sites to determine if there was evidence of crevassing and the location of the grounding line and, if such analysis indicated that there was likely to be minimal crevassing at the site, to proceed to the next step. The evidence indicated that such imagery was of a resolution that could not identify individual crevasses but could contain features that indicated the relative propensity of crevassing at the site. That imagery was often years old and that while individual crevasses may move with the ice flow, the propensity of the area to crevasse would remain the same. The evidence also very clearly indicated that such imagery could not be expected to be recent or in real time. The evidence also demonstrated that the AAD had possession of, and access to, such imagery, and at times used the imagery for site assessment purposes. 141․ The fact that the imagery may be old, and that the step may need to be repeated does not cause me concern. Any repetition of the step where the imagery remained the same would be effortless. However, the step would remain important because new imagery may become available and the new assessment may provide additional information. 142․ There was a submission that at times it was necessary for helicopters to land at sites that were heavily crevassed, and therefore the requirement that the site not be used unless the imagery suggested minimal crevassing was not reasonably practicable. However, in this case the relevant sites were simply used for fuel caches. The distances were such that a fuel cache site could have easily been selected away from the grounding line and away from a location of a high ice velocity gradient. That was the case notwithstanding any preference to fly in sight of the open sea. 143․ In those circumstances I comfortably find that this step was reasonably practicable. I also find that any need to repeat this step was also reasonably practicable.
The reasons of the appeal judge were as follows: 28․ The defendants, in the Court below, and before me, concentrated a good deal of their efforts in their attack upon the first measure. Two primary points were made to substantiate the attack: (a) There was no definition or explanation of the term “minimal crevassing”. (b) The capacity to have available, as part of a reasonably practicable measure, the presence of a person capable of interpreting any available satellite imagery, was not established. 29. Comcare’s response to the term “minimal crevassing” was that it was a simple phrase not requiring further elucidation. Senior Counsel for Comcare said that “it has its ordinary English language meaning” (Transcript page 265). I agree that “minimal” is an ordinary English word capable, in general converse, of simple interpretation. But this is a criminal prosecution in which the phrase “minimal crevassing” is the trigger for a series of measures. These measures, as illustrated by their wording, fall within a technical regime in which helicopter pilots, and those persons sending them out on missions, were no doubt familiar. Examples of the technical regime, as set out in the measures, are “air task risk assessment”, “low-light helicopter reconnaissance” and “helicopter-crevasse probing”. 30. If the existence of “minimal crevassing” was to generate the balance of the measures (at the core of the prosecution), it needed to be properly defined in order to set this task in motion. 31. His Honour did not deal with the interpretation of “minimal crevassing”. He found that satellite imagery was publicly available. He then found, at [140], that: The evidence indicated that such imagery was of a resolution that could not identify individual crevasses but could contain features that indicated the relative propensity of crevassing at the site. That imagery was often years old and that while individual crevasses may move with the ice flow, the propensity of the area to crevasse would remain the same. The evidence also very clearly indicated that such imagery could not be expected to be recent or in real time. The evidence also demonstrated that the AAD had possession of, and access to, such imagery, and at times used the imagery for site assessment purposes. 32. His Honour continued in the next paragraph: The fact that the imagery may be old, and that the step may need to be repeated does not cause me concern. Any repetition of the step where the imagery remained the same would be effortless. However, the step would remain important because new imagery may become available and the new assessment may provide additional information. 33. His Honour’s approach seems to be that while the satellite imagery might have been “years old” and might not indicate any fact beyond a “propensity of crevassing” it was nevertheless an important step “because new imagery may become available and the new assessment may provide additional information”. 34. In my view this approach has a somewhat speculative basis depending on the possibility that, at some time or another, satellite imaging may be useful. But the prosecution measures had to be reasonably practicable before every helicopter flight, or at least every day of a helicopter flight. The records indicated there could be multiple flights on a particular day. Satellite imagery, without more, no doubt could have its place in an overall regime controlling helicopter flights. But to require it before each flight, or even daily, and as a necessary precondition to the taking of other measures, does not fit within the description of being reasonably practicable. 35. Dr Colgan’s report formed the basis of a good deal of the submissions of all the parties. In respect of the capacity of a person to interpret the satellite imagery, he said the following: 3. What qualifications, training or experience would be required for a worker to be able to interpret information obtained in question 2 above? 6.11 In order to “interpret”, here taken to mean utilise and explain, the satellite data described above, a worker would generally need graduate-level qualifications in remote sensing (i.e. at least a Master of Science or Engineering with specialisation in remote sensing). For example, developing a non-standardised algorithm to generate surface velocity maps from high-resolution radar-spectrum imagery exceeds the degree learning outcomes expected in most undergraduate level programs (i.e. Bachelor of Science or Engineering with specialisation in remote sensing). Even utilising existing velocity maps (e.g. Fig. 7) requires manipulating a large volume of complexly-structured data in a command-line interface. This would likely be a challenge for most Bachelor of Science or Engineering-level remote sensing analysts to accomplish in a timely fashion. 6.12 In addition to technical qualifications in remote sensing, a worker would likely require training in discipline-specific algorithms and file structures such as the software and data standards of the US National Snow and Ice Data Center and other pertinent polar data portals. Understanding the roles of sub-surface water, snow, ice, and re-frozen ice in apparent radar brightness and creating velocity maps from radar data are both non-trivial tasks and developing competency in such activities would require extensive training under a competent individual. Within the glaciology community, such expertise is usually gained during graduate studies that provide at least one year (approximately 1000 hours) of supervised experience in cryospheric remote sensing. 36. There was no evidence to indicate the presence of persons having these qualifications within the AAD, and certainly not being available on an ‘at call’ basis as part of the standard measures before a helicopter flight. 37. Thus, I think the learned Magistrate was in error in finding that the use of satellite imagery was a reasonably practicable measure. 38. This conclusion coupled with the inability of the prosecution to establish that there was a failure on the part of both defendants to take all of the measures in [16] (or equivalent) of the Informations is enough to defeat both the Informations against both defendants. The submissions

Other evidence

There was also evidence about the use of satellite imagery by the AAD as part of its processes prior to and during the 2015/2016 season. This came from Don Hudspeth (Operations Planning Manager at the AAD), Anthea Fisher (a Field Training Officer present at Davis Station at the time of the accident), David Smith (Mapping Officer at the AAD data centre) and Aaron Read (Aviation Manager at the AAD). That evidence disclosed the viewing of Landsat and other imagery for the purposes of planning and undertaking field operations. It did not disclose any practice of, or capacity for, the kind of data manipulation of Landsat and RADARSAT data as contemplated by Dr Colgan. Rather, the use disclosed appeared to involve reasonably straightforward examination of the available visible-spectrum imagery. That exercise was more significant in relation to those field sites in Antarctica which were to be serviced by fixed-wing aircraft, where there was a need to land at speed over a substantial distance and hence less flexibility than landing with a helicopter.

Ground 1(a) – minimal crevassing

Before the magistrate, before the appeal judge and in this court, the Commonwealth and Helicopter Resources placed significant emphasis upon the uncertainty of the concept of “minimal crevassing”. This concept was at the core of measure 1. In substance, the submissions made by the defendants were that ‘if we do not know what “minimal crevassing” means, how can it be a reasonably practicable measure?’.
It is not unknown for defendants in both civil and criminal proceedings to seek to mischaracterise the particulars of the case put against them in an attempt to demonstrate that the claim against them is unreasonable. A further, equally undesirable, approach is to refuse to understand them. However, defendants are required to engage with the substance of the case that is put against them. They cannot avoid that substance by declining to expend the intellectual effort required to understand the case against them or by deliberately mischaracterising the case so as to allow them to erect, and then knock down, a straw man. However, in the present case, the complaints about the incorporation into the package of measures of the concept of “minimal crevassing” have substance.
The operation of the package of measures was dependent upon the concept of “minimal crevassing”. There was a greater or lesser potential for crevasses throughout the whole of the West Ice Sheet. There is no doubt that, all other things being equal, it was desirable to select, as a fuel cache site, a site that had fewer rather than more crevasses. However, within the structure of the package of measures, measure 1 became a threshold question, because if the site selected did have “minimal crevassing”, then it could not be used a fuel cache site. It was therefore essential for the practical operation of the measures that “minimal crevassing” be definable in some way. That was essential because, if defined, it would determine the range of sites that would be immediately ruled out from consideration as potential fuel cache sites by the desktop exercise in measure 1. It would also thereby define the range of sites to which the balance of the measures would have to be applied. Both of those parameters would be significant in determining whether the package of measures was reasonably practicable because reasonable practicability needed to be assessed against the practical operational demands of (at the very least) Project King and the burden of the imposition of the remaining measures when compared to the risk of only “minimal crevassing”.
The content of the concept of “minimal crevassing” might have been provided by way of expert evidence which explained how Antarctic experts might have implemented this measure. That was not the approach adopted by the prosecution. There was no attempt to lead from Dr Colgan or any of the AAD witnesses their opinion as to what sites would be ruled in or out by reference to the criterion of “minimal crevassing”. In particular, the evidence did not explain whether minimal crevassing was consistent with a proposed site being “lightly crevassed”, as referred to in Dr Colgan’s report.

Ground 1(b) – utility of updated satellite imagery

This ground of appeal arises from the reasons of the magistrate in paragraphs [140]-[143] of May (No 2), set out at [97] above. That aspect of the magistrate’s reasons was considered by the appeal judge in paragraphs [32]-[34] of his Honour’s reasons, set out at [98] above. The reasoning of the appeal judge may be summarised as follows: (a) The magistrate found that: (i) satellite imagery could identify the propensity of the area to crevasse; (ii) any repetition where the imagery remained the same would be effortless; and (iii) the step contained in measure 1 would remain important because new imagery may become available and the new assessment may provide additional information. (b) This approach was somewhat speculative because it depended upon the possibility that, at some time or another, satellite imaging may be useful. (c) However, although satellite imaging could have its place in an overall regime controlling helicopter flights, to require it before each flight or even daily as a necessary precondition to the taking of other measures is not reasonably practicable.
The appeal judge’s reference to satellite imagery being required “even daily” must be understood in light of his Honour’s later finding (AJ at [42]) that “a significant weather event was commonplace and could in fact occur more than once a day”. Therefore, measure 6 might require the repetition of the package of measures at that frequency.
For the reasons which follow, the appeal judge’s conclusion that the magistrate’s finding about the utility of updated satellite imagery was “somewhat speculative” did not involve an error.
Measure 1 referred to “obtaining and analysing publicly available satellite imagery of the site”. Dr Colgan treated the reference to “publicly available” satellite imagery as involving obtaining imagery that was freely available. In light of Dr Colgan’s evidence, that meant that the type of imagery being considered was not of a resolution which would allow the detection of individual crevasses at any site, but instead may disclose information which informed an assessment of the propensity of the site to have crevasses at it. Dr Colgan did not give evidence which directly supported the utility of such satellite data at the operational stage, rather than the planning stage, for a project such as Project King.
The possibility that new imagery may become available and that the new assessment may provide additional information was not established by the evidence. So far as disclosed by the evidence of Dr Colgan, the RADARSAT-1 imagery which appeared most useful in determining crevasse propensity used in Figure 6 of his expert report was imagery from 1997. The RADARSAT-2 surface derived velocity map used in Figure 7 of his expert report was based on data from 2008. His evidence did not disclose any timetable for routine updating of this imagery or, indeed, the secondary products based on that imagery to which he referred.

Ground 1(c) – availability of person to interpret satellite imagery

The appeal judge found that the magistrate had erred in finding that the use of satellite imagery was a reasonably practicable measure because there was no evidence to indicate the presence of persons within the AAD who had the qualifications identified by Dr Colgan as necessary in order to manipulate and interpret satellite data to the extent that it was necessary. It is important to note that Dr Colgan was specifically asked in Question 4 what qualifications, training or experience would be required for a worker to be able to identify either remotely or at the location whether a remote helicopter landing site is, or is likely to be, crevassed. He said that the qualifications were those which he had set out in his answer to Question 3, which is set out in full in paragraph [35] of the appeal judge’s reasons (set out at [98] above).
It was therefore clear that the prosecution needed to establish beyond reasonable doubt that the AAD was able to access persons with those qualifications and that technical ability. That would need to be done at the planning stage in determining potential fuel cache sites, but also whenever the package of measures was required to be repeated if new satellite imagery became available or if there was an unanticipated need to locate a new site during the course of field operations.
The prosecution did not lead any evidence about the availability of such persons. It did not lead evidence that any of the glaciologists which the AAD employed in Hobart had the technical skills which Dr Colgan said were necessary. That was notwithstanding that the head of the AAD at the time, Dr Nicholas Gales, was called by the prosecution to give evidence and made reference in his evidence to glaciologists, including a named glaciologist who he said was involved in the planning of Project King.
The ultimate submission put to the magistrate by the prosecution was: Now, we accept that there are significant skills required, but our submission is that there’s no suggestion, and it must be the case, that the AAD, through its geologists and its other experts, have those skills.
The reference to geologists was probably intended to be a reference to glaciologists.
Although the prosecution case required that it be proved beyond reasonable doubt that a glaciologist or someone else employed by, or otherwise available to, the AAD would have those skills, that is not something which can be inferred to that standard.
It is true, as the prosecution’s ground of appeal contends, that it was not essential that it prove that the AAD had, as at 2015, actually retained someone with those skills. However, in order to demonstrate beyond reasonable doubt the reasonable practicability of measure 1 in its package of measures, it needed to prove beyond reasonable doubt the reasonable practicability of obtaining that information from qualified persons as part of its planning process as well as, more immediately, when new satellite information became available or when required by the circumstances on the ground.

Notice of Contention ground 1 – measure 6

A significant component of the package of measures is the requirement in measure 6 that measures 1 to 5 be repeated if more than two weeks had expired or if there had been a “significant weather event” since the last assessment.
The appeal judge’s finding (discussed below) addressed the latter alternative, finding that repeating the measures after a significant weather event was not reasonably practicable. Ground 1 in the Commonwealth’s Notice of Contention dealt with the former alternative, asserting that the appeal judge should have explicitly found that measure 6 was not reasonably practicable because it had not been proved that the 14-day reassessment time was reasonably practicable.

The decision of the magistrate

The decision of the magistrate recognised that repeating the measures would impose upon the limited resources available at Davis Station: May (No 2) at [155]. He made it clear that the measures did not require the steps to be repeated every 14 days, but only when the site was to be used. He said (at [156]) that it “would have been open to the AAD to adjust resources and work sequencing to minimise the number of trips necessary in order to service Project King”.
The reasoning of the magistrate did not address the rationale for the 14-day period.

The decision of the appeal judge

As the Commonwealth submitted, the finding for which it now contends was impliedly made by the appeal judge. The language used by the appeal judge indicated that there was “substance” in the submission that, absent hindsight, 40 days would have been an appropriate interval after which the measures would require repetition. However, his Honour held that the measure was not reasonably practicable because it required the repetition of the measures after a “significant weather event”. Such events were “commonplace and could in fact occur more than once a day”. It was that requirement, including the necessity to reconsider satellite material, that rendered the repetition requirement to be not reasonably practicable.

Conclusion – measure 6

It is not clear why measure 6 contains a 14-day period. It is possible that this period has been drawn from the evidence in paragraph 6.37 of Dr Colgan’s report that, on the various assumptions that he made, the incident crevasse had opened from a non-dangerous 20 cm to a dangerous 60 cm over a period of 13 days.
There are two points to be made about the selection of the 14-day period in measure 6.
The first point is that the report of Dr Colgan is quite clear that, in the absence of hindsight arising from what was known about the specific crevasse involved in the accident, “an a priori assumption of a characteristic local opening rate of 1 cm per day would have been reasonable”. As a result, “heli-probing at the incident site would therefore have been valid for 40 days”. Given that, in the absence of hindsight, it would be reasonable to approach the assessment of the fuel cache site on the basis of a crevasse opening rate of 1 cm per day, it has not been established beyond reasonable doubt that the significantly more onerous requirement of repeating the package of measures when as little as 14 days had passed was reasonably practicable.
The second point is that the 14-day requirement was not supported by the actual practice adopted by the AAD following the accident. As pointed out earlier, one of the significant planks in the prosecution case asserting that the measures proposed were reasonably practicable ones were the measures adopted on 22 January 2016 by the AAD in response to the accident and subsequently integrated into its August 2016 operations manual. Essentially, the prosecution argued that if the measures were taken after the accident then they could have been taken before.
The measures subsequently adopted were similar in some respects to the package of measures proposed by the prosecution. It is worth noting that they were articulated in a manner which would make them more readily able to be implemented. For present purposes, what is significant is that, like the package of measures, they contained a requirement for repetition of the assessment measures if a particular period of time had passed or there had been “a notable weather event at the site (blizzard, extremely high winds, etc)”. The significant difference between the regime put into place and the package of measures identified by the prosecution was that the assessment process was only required after a two-month rather than two-week period. The two-month period was subsequently reduced to six weeks and it was that figure which was included in the operations manual dated August 2016.
The third point is that there was specific evidence of the difficulties that would be caused by the adoption of a two-week clearance time. The AAD Operations Coordinator at Davis Station, Sharon Labudda, gave evidence that the six-week clearance time subsequently adopted made flying operations more complicated. She was asked what the effect would have been of adopting a two-week clearance time. Her answer was: My opinion is I think that would make it quite difficult to achieve any tasks because due to the - the weather is a big part of the Antarctic and sometimes it can be quite difficult to actually, you know, get a good enough weather window to go every two weeks, and I've experienced it that even the Sorsdal Glacier, which is right next-door to Davis Station, we weren't able to get there in the right weather conditions for, you know, more than two weeks. We hardly got there for the season to carry out heli crevasse probing, and it's a closer site than sites that are a lot further away.

Disposition of the appeal relating to the Commonwealth

Given that the success of the prosecution of the Commonwealth was dependent upon the prosecution establishing the reasonable practicability of all six of the measures within the package of measures, the result of the determination of ground 1 of the Notice of Appeal and ground 1 of the Notice of Contention is that there are at least two reasons why the prosecution could not succeed. Having regard to the manner in which the magistrate gave his reasons and the manner in which the appeal judge dealt with the various grounds of appeal and contention that were before his Honour, the determination that there were at least two reasons why the prosecution of the Commonwealth failed means that it is not necessary to go on and determine the multitude of other grounds of appeal and contention.

Disposition of the appeal relating to Helicopter Resources

Ground 6 in Helicopter Resources’ Notice of Contention asserted that the appeal judge ought to have found that he had no jurisdiction to hear the prosecution appeal. Helicopter Resources submitted that the review appeal provisions in Pt 3.10.3 of the Magistrates Court Act were not picked up by s 68(2) of the Judiciary Act 1903 (Cth), and hence there was no capacity for the prosecution to appeal from the magistrate’s acquittal of Helicopter Resources.
Having regard to the fact that it was common ground that if the prosecution of the Commonwealth was not successful, then the prosecution of Helicopter Resources could not succeed: see [8], and [69] above, the appeal in relation to Helicopter Resources must be dismissed.
It can be accepted as a general proposition that it is the first duty of a court to be satisfied of its jurisdiction. However, there are cases where it is open to a court to dismiss a case without determining the issue of jurisdiction: see the discussion in Babet v Electoral Commissioner [2023] FCAFC 164 at [55]-[74]. In the present case, where: (a) the outcome of the appeal in relation to the Commonwealth determines the outcome of the appeal in relation to Helicopter Resources; (b) the primary judge did not address the jurisdictional point: AJ at [12]; (c) the applicability of s 68(2) to an appeal against an acquittal on a summary charge has not been previously determined, the closest authority being Australian Securities and Investments Commission v Vis [2000] SASC 258; 77 SASR 490; and (d) the answer to the question would not affect the order to be made, we do not consider it essential that we determine that ground of Helicopter Resource’s appeal.
It is also not necessary to address in the appeal in the Helicopter Resources matter the special nature of a review appeal under s 219B of the Magistrates Court Act, whether the prosecution's grounds of appeal before the appeal judge were correctly formulated, and whether the grounds as argued before the appeal judge were properly within the scope of a review appeal. The Court of Appeal alluded to these limitations in May v Helicopter Resources Pty Ltd; May v Commonwealth of Australia [2022] ACTCA 15; 17 ACTLR 295 at [107]-[109] without deciding the issues. Because the appeal in relation to Helicopter Resources must be dismissed, the issues concerning the nature of a review appeal to the Supreme Court do not now arise for consideration.
Having regard to the fact that the appeal against the acquittal of the Commonwealth is to be dismissed, the appeal against the acquittal of Helicopter Resources must also be dismissed.

Orders

In each case the prosecution’s appeal will be dismissed.
The orders of the Court in proceedings ACTCA 34 of 2021, the appeal relating to Helicopter Resources, are: 1. The Appeal is dismissed. 2. Unless an application in proceedings seeking a different order is filed within 14 days, the appellant is to pay the respondent’s costs of the appeal.
The orders of the Court in proceedings ACTCA 35 of 2021, the appeal relating to the Commonwealth, are: 1. The Appeal is dismissed. 2. Unless an application in proceedings seeking a different order is filed within 14 days, the appellant is to pay the respondent’s costs of the appeal.

I certify that the preceding two hundred and two [202] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 1 March 2024

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