May v Helicopter Resources; Commonwealth of Australia v May [2021] ACTSC 116

Parties: Christopher May (Appellant, Second Respondent) Commonwealth of Australia (Second Appellant) Helicopter Resources Pty Ltd (Respondent) Representation: Counsel P Neil SC, C Jacobi and B Narula (Appellant and Second Respondent) G Livermore QC and C Currie (Second Appellant) G O’Mahoney and D Habashy (Respondent)

Solicitors Commonwealth Director of Public Prosecutions (Appellant and Second Respondent) Maddocks (Second Appellant) Norton White (Respondent) File Numbers: SCA 1 of 2020; SCA 17 of 2020

Decision under appeal: Court: ACT Magistrates Court Before: Acting Chief Magistrate Theakston Date of Decision: 6 December 2019 Case Title: May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) Citation: [2019] ACTMC 31

ELKAIM J:

1. These reasons relate to two separate appeals: May v Helicopter Resources Pty Ltd (SCA 1 of 2020) and Commonwealth of Australia v May (SCA 17 of 2020). In the former appeal the appellant is complaining about the acquittal of the respondent on three charges. In the latter appeal the appellant is challenging its conviction on two charges.

2. Mr May, in the Court below, brought the charges on behalf of Comcare, pursuant to the Work Health and Safety Act 2011 (Cth) (the Act), in particular, s 32: 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: (a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150, 000. (b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300, 000. (c) In the case of an offence committed by a body corporate—$1, 500, 000.

3. For convenience I will refer to Mr May as Comcare, to the Commonwealth of Australia as the Commonwealth and to Helicopter Resources Pty Ltd as Helicopter Resources. The “defendants” refers to both the Commonwealth and to Helicopter Resources as they were before the learned Magistrate.

4. I note here, that in respect of Comcare’s appeal against Helicopter Resources, it was subject to the ‘gateway’ provisions set out in s 219D of the Magistrates Court Act 1930 (ACT). As will be evident from the reasons set out below these provisions have little part to play.

5. The charges were heard by Acting Chief Magistrate Theakston (as he then was) between 17 June 2019 and 16 July 2019, with an additional day on 3 October 2019. His Honour delivered his decision on 6 December 2019 (May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 2) [2019] ACTMC 31).

6. The relevant Informations are dated 20 December 2017. Subject to some amendments by consent, an unsuccessful attempt was made to amend the Informations at the commencement of the hearing (May v Commonwealth of Australia and Helicopter Resources Pty Ltd (No 1) [2019] ACTMC 20). The Informations in their final form are annexed to the Magistrate’s principal judgment.

7. In seeking the amendments, the prosecution candidly stated that the amendments would improve its chances of success. I would go further and state that without the amendments the prosecution was almost doomed to failure. Nevertheless, as far as the Commonwealth was concerned, the prosecution did not fail; it secured a conviction on two charges. For the reasons given below I think the prosecution should have failed on these two charges, as it did on the balance of the charges against the defendants.

8. The charges arise from the use of helicopters in Antarctica on 8 and 28 December 2015 and on 11 January 2016. The helicopters were operated by Helicopter Resources pursuant to a Services Agreement with the Australian Antarctic Division (AAD). The AAD is a Commonwealth agency, being a division of the Department of Agriculture, Water and the Environment.

9. The relevant flights were used to transport aviation fuel to different locations for future use.

10. The last flight, on 11 January 2016, ended with the death of a pilot, Mr David Wood. After depositing some fuel drums, Mr Wood, just before he returned to his helicopter, fell into a crevasse where he was trapped for about five hours. He later died of hypothermia.

11. The parties agreed that the most efficient way to proceed in the appeal was to begin with the argument concerning the Commonwealth’s appeal against its two convictions. It was common ground between the parties that if the Commonwealth’s appeal succeeded, then Comcare’s appeal against Helicopter Resources would necessarily fail.

12. I note that the jurisdictional issues that had been originally raised were not abandoned but it was recognised that they were not matters falling for me to decide. I was effectively asked to ignore them.

13. The Commonwealth’s attack on the Magistrate’s conclusions acknowledged, with a minor exception, that the approach described by his Honour was correct.

14. The minor exception referred to above occurs in [6] of the decision: In contrast, this is a criminal prosecution, which is adversarial in nature. The prosecution puts its case for the purpose of establishing the offences. The offences are described at the outset and in enough detail to allow the defendants to know precisely what case they need to respond to. There is not meant to be any uncertainty about the prosecution position. In the instant case, the prosecution would have made various forensic decisions about what case to put, including how they pleaded the precise acts or omissions they say constituted the offences charged. Those acts of [sic] omissions are described in the authorities as the ‘specified measures’. It was then for the defendants to respond to that case. The Court is to then decide whether each of the offences, as charged and with the specified measures pleaded, has been established to the requisite standard of proof. 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.

15. The Commonwealth said that instead of “adversarial” in the first sentence, his Honour should have said “accusatorial”. I think this is a criticism without substance. The proceedings are unquestionably adversarial. This does not impinge in any way on the overall principle that the defendant was an ‘accused’ and the case against it needed to be proved beyond reasonable doubt.

16. Following his correct introduction his Honour described the issues which, before him, were extensive. Only the following (from [10]) were agitated in the appeal: … (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?

17. This is a convenient point to refer to the application to amend the Informations, which as I have said above, was rejected. The form of the allegations, as particularised, includes the establishment of a number of “reasonably practicable” measures which the Commonwealth should have conducted in pursuance of the duty owed to the pilots. As for Helicopter Resources, the prosecution asserted that it should have ensured their compliance by the Commonwealth. There are five specific measures, with a sixth being the repeat of the five measures in certain circumstances.

18. The intent of the amendments was to enable the prosecution to succeed if it established any one or more of the measures, as opposed to the need to establish all of the measures. Thus Comcare wished the measures to be alternatives.

19. By not allowing the amendments Comcare was obliged to establish a failure on the part of the Commonwealth to have taken all of the measures. There is an added subtlety; the manner in which the Information is styled, not only requires proof of all of the measures, but proof of their compliance in the order in which they are listed (certainly for the first four, arguably for the last two). The best way of illustrating this point is to quote the measures and highlight the words which give rise to this observation. 16.1 it failed to ensure that before workers were required to land a helicopter and/or walk on the ice surface at the deep field fuel cache sites, including 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: 16.1.1 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: 16.1.2 engaging in an air task risk assessment process in respect of the site for the purposes of identifying risks of crevasses; and thereafter: 16.1.3 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: 16.1.4 undertaking helicopter-crevasse probing of the site by someone suitably trained to do so such as Field Training Officers; and 16.1.5 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 16.1.6 re-doing the steps at 16.1.1 to 16.1.5 if more than two weeks had expired or if there had been a significant weather event since the last assessment. (Emphasis added)

20. Thus, in order to succeed Comcare was required to establish, beyond reasonable doubt, that each measure was reasonably practicable (as defined in s 18 of the Act).

21. Although differently numbered, the above measures are common to the charges against the Commonwealth and against Helicopter Resources. I think that consideration of these measures determines both appeals and highlights errors in the reasoning of the learned Magistrate.

22. There is another point that is apparent from the Informations which I think is important. Paragraph 14 reads: The Defendant failed to comply with the Duty by failing to ensure, so far as was reasonably practicable, the health and safety of workers, in particular Mr David Wood and Mr Paul Sutton, in that it required the said workers to land helicopters and walk on the ice surface at deep field fuel cache sites, including the Incident Site, without first assessing those sites, in circumstances where landing on or travelling the ice at those sites was not safe because of the possible presence of crevasses, including crevasses which were hidden by snow bridges.

23. The wording of [14] and also the wording of [16.1], can only be read as suggesting the reasonably practicable measures needed to be taken before each flight. Every flight to a deep field fuel cache site obviously, but subject to pilot discretion, required a landing. A site which was safe for landing on a particular day could well become covered in snow the next day, thereby requiring the taking of the measures set out in [16] (or equivalent) of the Informations

24. The point is important because the frequency with which the measures needed to be taken would naturally influence their reasonable practicability. Comcare submitted, by implication, that the measures were not required with such frequency. This is to some extent endorsed by the terms of [16.1.6] which suggest the possibility of a two week interval, or a significant weather event, being the catalyst for a repeat of the measures. While this approach certainly makes sense in respect of the analysis of satellite imagery, it is entirely inconsistent with the intent of the other measures, such as probing of the site and the marking out of boundaries. Boundaries marked out on one day could well be covered by snow falling overnight without the intervention of a “significant weather event”.

25. This point is perhaps another example of deficiencies in the Informations and highlights the difficult task faced by Comcare in proving the cases against the defendants.

26. Nevertheless, his Honour found, as against the Commonwealth, that the measures were reasonably practicable. In respect of Helicopter Resources, he found that the organisation neither knew nor “ought to have known that this particular suite of measures was appropriate or necessary” (at [164]). This is why Helicopter Resources was acquitted.

27. I think his Honour should have found, in respect of both defendants, that the first of the measures (concerning satellite imaging) was not reasonably practicable and therefore the balance of the measures fell with it, the latter being a product of his refusal to permit the measures to be viewed in the alternative.

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.

39. There are however a number of other matters which I should deal with, if only briefly, but in deference to the whole of his Honour’s reasons and to the submissions of the parties.

Measure 16.1.6

40. The Commonwealth made a concerted attack on measure ‘No 6’, being the need to repeat the preceding measures if “more than two weeks had expired or if there had been a significant weather event since the last assessment”.

41. The Commonwealth submitted that this requirement was not based on the evidence but rather based on a hindsight interpretation derived from Dr Colgan’s report at [6.40]. It submitted that, absent hindsight, 40 days would have been an appropriate interval.

42. While I think there is substance in the submission, I think greater import arises from the necessity to repeat the measures after a “significant weather event”. The evidence suggested that in Antarctica a significant weather event was commonplace and could in fact occur more than once a day. The repetition of the measures, in particular the reference to satellite imaging which had been reviewed very recently, but perhaps was somewhat out of date, could not be seen as reasonably practicable.

Dealing with matters in common to both defendants

43. Returning to the judgment, his Honour went on to describe the charges referring to the relevant legislation. He noted that there was a “substantial commonality between the charges” (at [11]). The Commonwealth said this was an error because each charge, and in particular as between the separate defendants, needed to be dealt with in its own right.

44. I do not think the Magistrate’s comment about commonality was an error. There is no reason why he could not deal with issues having the same ingredients together, provided, as he did, ultimately resolve each charge separately. My approach has certainly been to deal with issues together where they are common to both appeals.

Use of “required” or “permitted”

45. After dealing with the charges his Honour set out some general principles, all of which are uncontroversial, and then commenced to look at the facts. Relevant to one of the submissions made by the Commonwealth, his Honour stated, at [27]: If I am satisfied that there may be an explanation consistent with the innocence of a defendant, or I am unsure of where the truth lies, then I must find the relevant charge has not been proven to the requisite standard.

46. He first of all dealt with unchallenged facts and then dealt with some issues, such as the existence of the Commonwealth’s duty of care, all of which are no longer relevant to the appeal.

47. The Commonwealth submitted that his Honour did not follow the correct approach that he had set out when he embarked upon his reasons. I will first of all repeat a portion of paragraph [6], which I quoted in full above: In the instant case, the prosecution would have made various forensic decisions about what case to put, including how they pleaded the precise acts or omissions they say constituted the offences charged. Those acts of [sic] omissions are described in the authorities as the ‘specified measures’. It was then for the defendants to respond to that case. The Court is to then decide whether each of the offences, as charged and with the specified measures pleaded, has been established to the requisite standard of proof.

48. The Commonwealth submitted that Comcare had correctly, as a matter of form, stated the charge and then provided particulars, all of which, if proved beyond reasonable doubt, would lead to a conviction.

49. The Commonwealth then submitted that his Honour had not followed this course because he had not satisfied himself of the existence, or even dealt with, some of the particulars. It was submitted that the errors were so fundamental that it was hardly necessary to traverse the evidence. Perusal of the judgment would suffice.

50. Generally speaking, but with two important exceptions, the allegations in the charges followed the same pattern. Both charges identified a date and place when an event occurred (8 December 2015 and 11 January 2016 respectively) and then later stated the duty owed by the defendant to nominated persons.

51. Next a hazard was described: There was a hazard in the workplace, namely, the existence of crevasses, in particular, hidden or snow-breached crevasses, at deep field sites located on the West Ice Shelf, including the Incident Site [or the 2012 Site and the Incident Site, as relevant to the respective charges].

52. The risk was then identified as the “risk of serious injury or death as a result of falling into a crevasse”.

53. There then follows the particulars “of the acts or omissions in failing, so far as was reasonably practicable, to eliminate or otherwise minimise the Risk”.

54. The charge then concluded: As a result of the Defendants failures, workers including [the relevant pilots] were exposed to a risk of death or serious injury.

55. The first important exception referred to above is that Charge 1 refers to the workers being “permitted” to land on the ice surface whereas Charge 3 states that the workers were “required” to land and walk on the ice surface. The Commonwealth made much of the word “required”, submitting it was a mandatory direction which overcame the ultimate authority of the pilots as to whether or not to land their aircraft.

56. The Commonwealth submitted that this distinction was so fundamental that, without more, the appeal in respect of Charge 3 had to succeed. I disagree.

57. The Commonwealth referred to the use of the word “required” in paragraphs 14 and 16.1 of the Information.

58. The AAD was conducting flight operations through an agreement with Helicopter Resources. This agreement included the following: The project will be based from Casey for 2-3 weeks from December 9, and will then relocate to Davis in January. Fuel caching and site recce flights may occur earlier from both stations. … Tasks include arial recce of sights, fuel caching ex Casey and trial landings by fixed wing.

59. The Commonwealth pointed out that his Honour recognised that the ultimate question of whether or not to land was a decision resting entirely with the pilot: 60 All involved in the tasking and flying of the helicopters were aware that the pilots had the option to refuse to undertake or continue with a task, and that included landing at a particular site. … 116 It is clear from the evidence that the pilots received training that an aerial reconnaissance was an important safety step before landing a helicopter. It is also clear that at the remote and unprepared landing sites, the pilots were in the best position to visually assess the site before landing. … 136 Much was made during the hearing about the pilot making the ultimate decision to land, and that the pilots were always free to refuse to land. Submissions were also made that the pilots were in the best position to assess any landing site. I accept both contentions.

60. The Commonwealth’s argument was as follows: In order for Charge 3 to have succeeded it was necessary for the prosecution to establish beyond reasonable doubt that the pilots were “required”, that they had no choice, but to land at a particular cache site. If this condition was not established then the charge immediately failed.

61. In my view the Commonwealth’s submissions overstate the use of the word “required”. The pilots were required to land in pursuit of their obligations to their employer, Helicopter Resources, and to the Commonwealth. But this did not mean they had to land if, in their judgement, a landing would be unsafe. The requirement to land and the existence of a discretion to land or not, in my view, were mutually exclusive.

62. The obligations under the contract would always have contemplated the ultimate discretion of the pilots about landing. This was a commercial agreement to be interpreted as such.

63. The High Court in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 256 CLR 104, from [46], stated the relevant principles to be applied in interpreting a commercial agreement: 46 The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. 47 In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. 48 Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning. 49 However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding "of the genesis of the transaction, the background, the context [and] the market in which the parties are operating". It may be necessary in determining the proper construction where there is a constructional choice. The question whether events, circumstances and things external to the contract may be resorted to, in order to identify the existence of a constructional choice, does not arise in these appeals. 50 Each of the events, circumstances and things external to the contract to which recourse may be had is objective. What may be referred to are events, circumstances and things external to the contract which are known to the parties or which assist in identifying the purpose or object of the transaction, which may include its history, background and context and the market in which the parties were operating. What is inadmissible is evidence of the parties' statements and actions reflecting their actual intentions and expectations. 51 Other principles are relevant in the construction of commercial contracts. Unless a contrary intention is indicated in the contract, a court is entitled to approach the task of giving a commercial contract an interpretation on the assumption "that the parties ... intended to produce a commercial result". Put another way, a commercial contract should be construed so as to avoid it "making commercial nonsense or working commercial inconvenience". (Citations omitted)

64. The making of a commercial contract involving the use of helicopters would necessarily have as an integral part of its interpretation the acceptance that in any flying manoeuvre the pilot would have the final say.

65. In my view the contract did require the pilots to perform the duties contemplated by the contract, but that was not a requirement that overrode their overarching discretion as to whether or not to actually land at any particular site.

66. I would add here that the discretion I have just referred to takes into account the various air safety regulations concerning a pilot’s discretion which could not be impugned by a contract.

‘Check’ or ‘ensure’

67. The second important exception is that the obligation required of the Commonwealth was the taking of the measures, whereas the obligation asserted against Helicopter Resources was to “ensure” that the Commonwealth took the measures.

68. A sub-issue that arose from the distinction is that Helicopter Resources asserted before me, that the Commonwealth had changed the nature of the allegation to allege that Helicopter Resources should have “checked” the measures were taken. Helicopter Resources submitted that the change was a “recasting” of the case which involved a lowering of the bar that the prosecution needed to overcome. Comcare said there was no intentional recasting and that checking should be equated with ensuring.

69. Ultimately I do not think much turns on the distinction. I approached the matter on the basis of the case put before the Magistrate, namely that the obligation on Helicopter Resources was to ensure the Commonwealth’s compliance with the measures. The existence of a risk

70. The Commonwealth submitted that when Mr Patterson landed his helicopter, on 8 December 2015, he did so on clear blue ice. There was no identifiable risk facing him because there was no crevasse in which to fall. This argument was equally applicable to the landing on 28 December 2015, forming the basis for Charge 2 against Helicopter Resources.

71. It followed, submitted the Commonwealth, as a matter of logic, that if there was no identified risk then there could not be a successful prosecution which relied on protection against, or minimisation of, a risk.

72. Comcare responded that the prosecution focussed on the measures being taken prospectively, in case there was a risk. It was common ground that a landing on blue ice did not carry the same risks as a landing on snow because any crevasse would be visible if contained within the ice. Blue ice was compared to concrete, which might have cracks, but any cracks would be readily visible. This was to be distinguished from a landing on snow which might cover the existence of a crevasse.

73. Comcare submitted that when a helicopter set off on a mission the pilot would not know if the landing was to be on snow or on blue ice. Accordingly, it was appropriate for measures to be taken in case the landing site turned out to be on snow. This was consistent with the protective nature of the Act. Incidentally it is also consistent, as discussed above, with the Informations requiring the measures to have been taken before each flight.

74. The argument came down to whether or not there was a duty to protect against potential risks or hazards or only actual risks or hazards. The learned Magistrate said that if the helicopters were to take off without knowledge of whether or not the landing site would be covered with snow, then it would be necessary to take the reasonably practicable measures before departing. This was because: The obvious potential for the pilots to suffer injury, including hypothermia, amounted to a risk of serious injury or death (at [127]).

75. His Honour based his approach on paragraphs [107] and [108] in Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297; 137 IR 253: 107 … focussing to [sic] closely on a narrow class of risk, defined by reference to the peculiarities of the incident under scrutiny, can lead to the error of concentrating on the incident itself. Such an approach may well lead to a misunderstanding of the real facts on which a charge is based. This is an error into which Peterson J fell. His Honour found, in effect, that the reason the roof fell and` caused the fatal injury to Mr Edwards was because of a particular weakness in the roof identified by three of the expert witnesses, which was exacerbated, his Honour seems to have considered, by the reduction in size of stook X. That is, his Honour found that the risk to safety lay in the roof weakness and because the weakness was not known to the defendant and was not detectable, there was no risk. 108 It may be seen that his Honour focussed on the specific detriment to safety (i.e., the weakened section of the roof that collapsed because of the mining of stook X) causing the fatal injury to Mr Edwards. This was not a risk to which the charges were directed. The charges ranged much more widely (and over a longer period than just the shift on 17 July 1998 when stook X was mined), They alleged there was a risk of the roof falling in while employees were in the vicinity of 1, 2 and 3 Headings adjacent to 25 cut through and that the defendant failed to avert the risk by not providing an adequate system for assessing the roof and not implementing and (sic) adequate system of recording and notification to employees of roof problems and roof history. This is the risk his Honour was required to address and it was not open to the trial judge to formulate a different risk.

76. His Honour’s reliance on these paragraphs ignores [100] of the same case: 100 The particulars in both charges referred to a "a potential risk" of the roof falling in while employees were working at 304 Panel 25 CT in the vicinity of 1,2 and 3 Headings at the Awaba Colliery, Awaba between 15 and 17 July 1998. We do not find the reference to a "potential" risk at all helpful. Either a risk exists or it does not. Section 15(1) is directed to obviating actual risks to safety in the workplace even absent any actual incident causing injury either by eliminating the risk or by protecting employees from the dangers presented by the risk. Use of the word "potential" could be interpreted as meaning the risk was yet to come into being but it is clear from the appellant's case, both at first instance and on appeal, that what was being alleged was that a risk existed, and that is how we have approached the matter.

77. The above excerpt from Morrison, at [100], was approved by a Full Bench in Newcastle Wallsend Coal Company Pty Ltd & Ors v Inspector McMartin [2006] NSWIRComm 339 at [403]. Marks J, separately, said from [665]: 665 I would conclude, therefore, that the appropriate approach in assessing whether there has been a breach of the overall and absolute obligation created by s 15(1) or a breach of the more specific obligations created by ss 15(2) and 16(1), is to look to a risk to health and safety that exists in a real and effective sense rather than a risk that is “remote” or “potential”. “Clear and present danger” is probably too strong in describing what is required, but it provides an example of a risk that is obviously within these provisions. 666 It is an essential ingredient of each of the offences under ss 15 and 16 of the Act that the defendant shall have failed to ensure the health, safety and welfare etc of the persons protected by each of the sections. It is only at that stage that any criminality arises under either of those sections. Unless and until there exists a risk of the requisite kind as I have described it, which is relevant for the application of the sections, no breach of either of the sections can have been committed. This is because an essential legal and factual ingredient of these offences will be missing…

78. It follows that I disagree with the conclusion reached by the learned Magistrate at [129], where he stated: I therefore find that on each relevant occasion, the relevant pilots were exposed to a risk of serious injury or death.

79. While this certainly was the case on 11 January 2016, it was not the position for the two earlier flights, at least as far as any risk created by the presence of crevassing was concerned. This is because there was no risk of the kind described in Newcastle which resulted from the landing on clear blue ice. On this basis I would have found accordingly in respect of the charges related to the earlier flights.

Causation under s 32

80. There was some discussion as to whether the s 32 had three or four elements. The distinction is not relevant here. The Commonwealth conceded that it owed the health and safety duty stipulated by s 32(a). The issues before me concerned whether there had been a breach of the duty and whether the causation element, in subsection (c), had been established.

81. A causation finding is necessary pursuant to s 32(c). It was submitted that this element had simply not been dealt with. The basis for the submission was that following his conclusion (at [157]) that “in relation to the first and third flights the Commonwealth failed to comply with its health and safety duty”, the learned Magistrate did not then go on to deal with causation. Dictated by the wording of s 32, causation should have been the next issue to be decided.

82. Comcare responded that the learned Magistrate had in fact dealt with causation although not, as logic might have dictated, following his finding in respect of s 32(b).

83. The findings on causation made by his Honour were said to be very plain. His Honour stated the relevant question at [10(f)]: Did any failure to comply with a duty expose an individual to a risk of death or serious injury?

84. The question was then answered, using the same wording, under the specific heading: Did any failure to comply with a duty expose an individual to a risk of death or serious injury? (Emphasis in original)

85. Answering the question, his Honour dealt with the issue from [125] to [129], concluding: I therefore find that on each relevant occasion, the relevant pilots were exposed to a risk of serious injury or death.

86. This conclusion, at [129], was said to be a causation finding because it should be read to state that as a result of the failure of the Commonwealth to comply with the duty under s 32(b), “the relevant pilots were exposed to a risk of serious injury or death”.

87. The difficulty with this reading is that his Honour’s conclusion at [129] is clearly a final answer to the question he posed concerning compliance with the duty. In other words, it is an answer to the requirements of s 32(b). This is confirmed at [157] where his Honour reached his ultimate conclusion that: I am satisfied beyond reasonable doubt that that the extant measures did not meet the health and safety duty, and the cascading series of steps of the specified measures, individually and together, were reasonably practicable to ensure the health and safety of the pilots. I therefore find that in relation to the first and third flights the Commonwealth failed to comply with its health and safety duty.

88. Once again, his Honour’s finding is an apparent conclusion concerning s 32(b). His Honour does not go on to then deal with s 32(c), as might be expected after his finding at [157]. There is a lacuna in respect of causation which would also have been fatal to the prosecution.

89. Another aspect of causation which was discussed in argument concerned the test to be applied. The argument arose from competing views expressed in the Magistrates Courts of Victoria and South Australia (Carmichael v the Commonwealth of Australia (Unreported, Magistrates Court of Victoria, Magistrate Hawkins, 19 November 2020) and Comcare v Cleanaway Operations Pty Ltd [2021] SAMC 54, respectively). Both decisions are under appeal. I think I need say no more than that in my view Carmichael is the correct decision in particular as it draws its reasoning from the New South Wales Court of Criminal Appeal decision in Bulga Underground Operations v Nash [2016] NSWCCA 37. I agree with Magistrate Hawkins’ statement (at [98]) that: The relevant question on causation is whether the act or omission of the accused was a significant or substantial cause of the worker being exposed to the risk of injury. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter. (Citations omitted)

Performance of a pre-landing reconnaissance

90. The next matter to be dealt with concerns the necessity for a pilot, before landing, to perform a reconnaissance of the immediate landing area. This was acknowledged to be a basic requirement. The Commonwealth and Helicopter Resources made two submissions about the reconnaissance:

(a) The learned Magistrate erred in failing to find that no reconnaissance, by Mr Wood, had taken place, and

(b) the absence of a reconnaissance from the alleged six reasonably practicable measures rendered the measures, as a package of measures, to be not reasonably practicable.

91. I disagree with both of the above two submissions.

92. His Honour discussed the landing site reconnaissance from [116]. He said that pilots were trained to conduct such a reconnaissance and that they “were in the best position to visually assess the site before landing”.

93. His Honour then referred to the evidence of Mr Sutton (the other pilot present on 11 January 2016) and recorded that Mr Sutton had not seen Mr Wood conducting the reconnaissance.

94. He then referred to video evidence from Mr Wood’s helicopter which had been viewed by the chief pilot for Helicopter Resources, Mr Lomas.

95. Mr Lomas gave this evidence during the hearing at page 1394 of the transcript: Mr O’Mahony: if we just pause there for a minute. The significance, if there is any, of the left hand turn you mentioned a couple of times?... Well, it shows that a reconnaissance of the landing site was not conducted in accordance with the procedures the pilots trained to do.

96. Then at page 1403, Mr Lomas said: Mr O’Mahony: thank you. Mr Lomas, when Mr Sutton did indicate to you that a thorough reccy hadn’t been conducted by him and Mr Wood and when he reiterated that at the meeting you’ve described with Mr English in October 2018, was that consistent with what you would already observed from the video?... Yes, it was.

97. Mr Sutton did not accept that he had told Mr Lomas that he had not conducted a reconnaissance. That, of itself does not however affect the strength of the evidence arising from Mr Lomas’ viewing of the video. However Mr Sutton also gave this evidence: Sir, you know, don’t you, that Mr Wood didn’t conduct a reccy on that occasion, or are you saying there is some doubt about that?--- I am saying I do not know. He did turn. Whether he was conducting a reccy or not, I cannot comment on. (Appeal Book B, page 323)

98. The learned Magistrate, having heard the evidence of Mr Lomas and Mr Sutton, concluded, at [120]: In the above circumstances, I am not persuaded to the requisite standard that I can make a positive finding that between them, Mr Wood and Mr Sutton did not conducted [sic] an aerial reconnaissance before landing at the incident site on the day of the incident.

99. At least as far as Mr Wood was concerned there was strong evidence to suggest he had not conducted the reconnaissance. I think there was enough contrary evidence however to enable the Magistrate to have a doubt about whether or not Mr Wood had performed a reconnaissance, at least sufficient to justify the finding he made. The fact I would probably have made a different finding does not necessarily bespeak error on his part.

100. Turning now to whether the absence of a reconnaissance requirement deprived the required measures of their reasonable practicability, I think the answer is ‘no’.

101. Although I have not dealt with the measures, besides the viewing of satellite images (which I found was not reasonably practicable), in any detail, there is no reason why they could not, individually, be regarded as reasonably practicable. This is especially so when one considers that Measures 2 (Air Task Risk Assessments), 3 (low-light reconnaissance) and 4 (helicopter-crevasse probing) are all measures that can be found in the manuals used by the AAD and Helicopter Resources.

102. If the additional measures could be viewed as alternatives, as the amendments to the Informations had proposed, then the fact that there was yet another reasonably practicable measure missing, would not have affected the status of the existing measures.

103. In addition, I think the necessity to perform a reconnaissance was such a recognised part of the standard obligations on a pilot before landing as to be accepted without specifically stating it to be the case. Costs of the required measures

104. The next submission to be dealt with came from Helicopter Resources to the effect that the absence of any evidence of the costs of the required measures rendered any assessment of them as reasonably practicable, to be impossible. The costs were said to include both the monetary aspect of complying with the measures and also the imposition on available resources including the exposure of staff to extra duties.

105. The learned Magistrate found that meeting the requirements could involve an “additional flight”. It is not clear however whether the additional flight would suffice for all of the requirements or just some of them (see [148], [149] and [152] of the judgment).

106. Comcare submitted that there was evidence of the costs of at least a helicopter flight, namely $720 per hour. An extra flight, taking two hours, would therefore cost an extra $1,440, or perhaps a little more. This information answers the question about the costs of flights but does not really deal with the overall issue of the total costs especially as related to the provision of extra resources.

107. Ultimately I do not think the learned Magistrate did deal comprehensively with the costs issue. However, I would not go so far as to say that his limited dealing with the issue was indicative of specific error.

The Notice of Contention

108. Helicopter Resources filed a Notice of Contention. It is not necessary for me to deal with it in the light of my findings. Nevertheless I note that some of the contentions in the notice accord with my findings. For example the notice states that the learned Magistrate was in error in finding that the satellite imaging measure was reasonably practicable.

109. Although it is difficult to imagine the mechanism by which this may have occurred, had Comcare succeeded in overturning the Magistrates reasoning in respect of the liability of Helicopter Resources, that liability would have been immediately extinguished by my findings in respect of the measures.

Orders

110. I make the following orders:

(i) The appeal in May v Helicopter Resources (CA 1 of 2020) is dismissed.

(ii) The appeal in the Commonwealth v May (CA 17 of 2020) is allowed.

(iii) The convictions of the Commonwealth in respect of charges cc 17/44149 and cc 17/44151 are set aside. (iv) The Commonwealth is acquitted of all charges against it (cc 17/44149 and cc 17/44151).

(v) The Notice of Contention is dismissed.

I certify that the preceding one hundred and ten [110] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 10 June 2021