CRIMINAL LAW - Factories, shops and industrial safety - Sentence - Appellant pleaded guilty to two counts of failing to provide and maintain a safe working environment contrary to s 21 of the Occupational Health and Safety Act 1985 - Judge imposed sentence on basis not open on presentment particulars - Whether failure caused death of the deceased - Appeal allowed and appellant re-sentenced.

EVIDENCE - Hearsay - Evidence of conversation with deceased as to instructions received from third party admissible as evidence of deceased's belief as to scope of job but not admissible as evidence of deceased's receipt of instructions: Walton v The Queen [1989] HCA 9; (1988) 166 CLR 283.

**1 This is an appeal against a fine of $120,000 imposed on the appellant on pleading guilty to two counts that, contrary to s 21 of the Occupational Health and Safety Act 1985 ('the Act'), in that it failed to provide and maintain so far as was practicable for employees a working environment that was so far as was practicable safe and without risks to health.

2 The plea was negotiated and opened by the prosecutor on the basis of the following particulars:

a) Of the first count: that the appellant failed to provide and maintain a system of work which ensured the provision of written job instructions and verbal information and instructions to workers including Grant Cocks and Michael Lenz involved in the maintenance of man-holes on the Henry Road project.

b) Of the second count: that the appellant failed to provide and maintain a system of work which ensured a written Job Safety Analysis was undertaken prior to the commencement of and during the carrying out of maintenance work by workers including Grant Cocks and Michael Lenz involved in the maintenance of man-holes on the Henry Road Project.

3 I have had the advantage of reading in draft the reasons for judgment of Neave JA and I agree with her Honour that the appeal should be allowed. Like her Honour, I consider that the judge erred in sentencing the appellant on a basis which was not open on the particulars, namely, that the appellant actually instructed the deceased, Grant Cocks, to replace damaged rungs in man-hole shafts on the Henry Road Project. Consequently, I would uphold the appeal on Ground 1, quash the sentence passed below and re-sentence the appellant.

4 I do not find it necessary to consider the other grounds of appeal, save for Ground 6: that the judge erred in finding that, if the appellant had maintained a system of work which ensured that the deceased was provided with written job instructions, it would have prevented the deceased entering the man-hole shaft from which he fell to his death in the confined space of the sewer below.

5 In essence the appellant's argument in support of that ground was that, even if proper written instructions (including a direction not to enter the man-hole shaft or not to enter the man-hole shaft without first taking proper confined space safety precautions) had been given to the deceased, one cannot exclude the possibility beyond reasonable doubt that the deceased would still have entered the man-hole shaft without first taking proper safety precautions.

6 Consequently, the appellant argued, one cannot say beyond reasonable doubt that, but for the appellant's failure to issue proper written instructions (of either sort), the deceased would not have gone into confined space without following confined space safety requirements and, therefore, one cannot say beyond reasonable doubt that the appellant's failure to issue proper written instructions (of either sort) caused the deceased's death.

7 I accept that argument as far as it goes. Given the facts which were admitted and not admitted for the purposes of the plea, I am not persuaded that one can say beyond reasonable doubt that, but for the appellant's failure to issue proper written instructions (of either sort), the deceased would not have gone into the shaft without following confined space safety requirements.

8 What I think one may say beyond reasonable doubt, however, is that, if the appellant had issued proper written instructions (either that the deceased do no more than grease man-hole covers, or that the deceased carry out general maintenance but, as part of that, not enter a man-hole shaft without following all the confined space safety requirements), it is distinctly possible - I would say probable - that the deceased would either not have gone into the shaft at all or at least would not have gone into the shaft without following confined space safety requirements; and, therefore, would not have been killed.**

**9 In the result, on the basis of no more than the facts admitted for the purposes of the plea, and such logical inferences as are open to be drawn from them beyond reasonable doubt, one can say that the offences admitted by the appellant were serious offences, productive of serious consequences, because they substantially increased the risk of the deceased entering the man-hole shaft without following confined space safety requirements, and that risk eventuated and resulted in his death.

10 On that basis, I agree in the re-sentencing orders proposed by Neave JA.**

**11 On 11 July 2003 Mr Grant Cocks, an employee of the appellant, FRH Victoria Pty Ltd ('FRH'), died after falling three metres into a sewerage pit. Following his death FRH was prosecuted for breaches of s 21 of the Occupational Health and Safety Act 1985 ('Act').

12 On 19 November 2007 FRH pleaded guilty to two counts of:**

... [failing] to provide and maintain so far as was practicable for employees a working environment that was safe and without risks to health in that it did fail to provide and maintain systems of work that was so far as was practicable safe and without risks to health.

**13 The maximum penalty for that offence was a fine of $250,000.[1] After hearing a plea in mitigation of sentence the learned sentencing judge fined the company $120,000.

15 FRH was contracted to work on live sewers (i.e. sewers which were connected and carried sewerage). The project had reached the defect liability period, when any

defects in the sewer were to be identified and rectified. Once this was completed the project would be certified as complete and handed over to SEW.

**16 SEW procedures required a permit to be obtained from SEW before a live sewer access chamber cover was opened. This permit was intended to guard against risks associated with the potentially hazardous build up of gases in the sewer and to enable SEW to make appropriate checks for discharges from the pipe in issue and other operational issues. The risk was such that SEW required that a telephone call, in addition to the previous written request, be made to it an hour before a man-hole was to be opened.

17 A permit was also required for entry into a confined space, which was defined as occurring 'when a person's head, i.e. the breathing zone, or upper body, is within the boundary of the confined space'. There were industry guidelines on the safety procedures which should be followed before entering a confined space. Although the sewer and the shaft leading to it were confined spaces, it was common ground that the men had not been instructed to do work involving entry into a confined space.

18 The deceased man, Mr Cocks, and Mr Michael Lenz ('Lenz') were employed as labourers by FRH. Each had completed training, which included a TAFE course and refresher courses, specific to working in confined spaces. Mr Cocks had been working with FRH for some years prior to the incident. Lenz began working for FRH as a pipe layer and back hoe operator in February 2000 and had been employed as a labourer on the maintenance truck since 30 June 2003.

19 On 10 July 2003 the men were involved in man-hole maintenance. Lenz's job was to assist Mr Cocks. As I explain below, the precise details of the task the men were undertaking are in contention, but it is agreed that they were required to open the man-holes and grease the covers. On 10 July 2003 the sewer was flowing and said to have smelled strongly.

20 On the following day, 11 July 2003, both men reported for work at FRH's yard at about 7.30am. According to Lenz's deposition, sworn on 23 July 2003, he was told by Mr Cocks that he had just got off the phone after speaking to Greg Brown, the site supervisor to whom both Mr Cocks and Lenz reported, telling him to go back down to the job where they had previously been working. The previous day the men had been greasing man-hole lids, had noticed that the top step in a man-hole was bent and had pulled out the bent step using a winch attached to the truck. Lenz deposed that on 11 July 2003 Mr Cocks told him that they were going to remove and replace damaged ladder steps. Lenz said that he did not know how they were going to do the job until they got to the site. They then took a truck to the site. The truck was loaded with equipment including a winch, a coil of access rope and safety harness, gas detection monitor, breathing unit, rungs and grommet inserts. Lenz said that the truck they were in did not normally carry the 'winch, personnel harness or sniffer' and it was possible that Mr Cocks had loaded that equipment. They also had with them an air compressor and drill attachment, which they collected on the way to the site.

21 It was common ground that no permit to open the sewer had been obtained from SEW, and that Mr Cocks and Lenz were not provided with any written job instructions as to how the maintenance task was to be undertaken. Nor was any written Job Safety Analysis prepared before they began carrying out the work on the man-holes in the Henry Road project. It was also common ground that they were not provided with details as to their precise location or contact details for the nearest hospital, doctors and emergency services. The mobile phone supplied to them contained the numbers of the FRH depot, Mr Brown, and the site engineer.

22 On arrival at the site, they lifted the cover of a man-hole relatively close to the man-hole they had opened the previous day. They did not test the air and Mr Cocks did not attach a harness to himself or set up a winch. They removed a damaged rung from the top of the ladder by attaching it to a chain secured to the truck and driving the truck forward. After setting up the pneumatic drill, Mr Cocks entered the sewer shaft and while standing on the second rung, attempted to drill the holes to insert grommets to which the repaired step would be fixed. In his deposition Lenz said that Mr Cocks's head, at that stage, was about 900 millimetres above the top of the shaft.

23 Because of the narrowness of the shaft, Mr Cocks had trouble getting into position with the drill in front of him. After turning the drill a couple of times he stepped down further into the shaft. Lenz became worried when his co-worker's head was about level with, or just below, the ground and warned Mr Cocks, asking him 'what the ... are you doing?'. Mr Cocks then fell three metres into the sewerage pit.

24 Lenz then tried to contact Mr Brown and the FRH depot, leaving messages with Mr Brown's message bank and the receptionist. He did not call 000 because he did not know how to describe precisely where the men were. Lenz opened up man-hole covers further along the sewer to let in fresh air, consistently with the training he had been given. About five minutes after Mr Cocks's fall, Lenz received a phone call from the depot, telling him emergency services were on the way. Unfortunately Mr Cocks had died of asphyxiation by the time they arrived.**

25 The particulars of the first and second count were, respectively, that:

[FRH] failed to provide and maintain a system of work which ensured the provision of written job instructions and verbal information and instructions to workers including Grant Cocks and Michael Lenz involved in the maintenance of manholes on the Henry Road project.

...

[FRH] failed to provide and maintain a system of work which ensured a written Job Safety Analysis was undertaken prior to the commencement of and during the carrying out of maintenance work by workers including Grant Cocks and Michael Lenz involved in the maintenance of manholes on the Henry Road project.

**26 As I have said, it was common ground that FRH's guilty plea was not based on any admission by it that the men had been instructed to do work requiring entry into a 'confined space'.

27 In his opening at the plea hearing counsel for the Crown said that the men were required 'to do a job that involved opening man-hole covers' and that the offences involved FRH's failure to provide written (or at the very least oral) instructions on the nature of the job. Counsel for the Crown said that the written instructions should have dealt with how the job should be done, drawn attention to potential hazards that ought to be the subject of a Job Safety Analysis (e.g. the dangers of gas, and the risk of falling from a height), referred to the remote location of the man-hole, set out emergency procedures, including contact details for the nearest doctor, hospital or emergency services if an accident occurred and included an express direction that no confined space entry should occur.

28 Count 1 was said to cover the failure to give the instructions described above, to obtain a written permit from SEW to open the sewer and to make a phone call to SEW an hour before the sewer was opened as was required by SEW's procedures. Count 2 was said to cover the failure to undertake a Job Safety Analysis. A Job Safety Analysis is a process by which risks and safety measures are identified following a process of consultation between workers and supervisors.

29 During the plea hearing the judge asked counsel whether FRH should be sentenced on the basis that the maintenance work which the men were to undertake included repairing and replacing bent steps on man-hole ladders.

30 When his Honour queried what the job involved, counsel for the Crown said:**

We know they were instructed to do a job ... which involved lifting manhole covers, but beyond that we're largely guessing because there was no written job instruction provided or even sufficiently detailed verbal instructions.

31 Later in the plea hearing his Honour asked whether this was a case of an employee doing a job in the way that was not envisaged. Counsel for the Crown said:

We would encourage your Honour to approach the sentencing task on the basis that they were instructed to go out there to do maintenance work that involved opening those manhole covers and that they were not provided with the material and instructions that they should have been provided with to do whatever that job was safely.

32 Defence counsel at the plea hearing submitted that FRH had pleaded guilty to counts 1 and 2 on the basis that the men had been instructed to undertake maintenance work which was limited to cleaning and greasing man-hole covers and noting defects which might require rectification at a later date. Accordingly he submitted that FRH should not be sentenced on the basis that the men had been expressly instructed to repair the steps, or that an instruction to repair and replace steps could be inferred from the instruction to carry out general maintenance. Since there was no evidence that the men had been told to do anything other than cleaning and greasing the man-hole covers, and noting any defects, there was no causal link between Mr Cocks's death and FRH's breaches of s 21 of the Act. In support of that submission, counsel relied on the fact that FRH had refused to plead to an earlier proposed presentment, alleging that:

The accused company tasked Grant Cocks and Michael Lenz to remove and replace steps within sewer access shafts in the Henry Road project.

33 In reply, counsel for the Crown submitted that in considering whether FRH failed to give instructions and prepare a Job Safety Analysis, his Honour was entitled to find that Mr Cocks:

... believed that he had been tasked to replace the steps and that he was not on a frolic of his own in doing the job. He also said that if the judge had to make a finding as to what the men were told to do, replacing the steps would be the most likely of the tasks.

34 The learned sentencing judge held that the facts raised an irresistible inference that the men were given the job of repairing and replacing the damaged rungs on the day of the accident. He said that:

Michael Lenz' state of mind as set out in his statement was that this is what they were to do. In his statement he says:

'On 11 July 2003, I started work at 7.30am at Dana Court. I did not know what the job was to be that day until Grant told me that we were going to remove and replace the steps. There was about 3 that I saw from the previous day. I didn't realise how we were going to do the job until we got on site. That's when Grant told me how we were going to do the job. We arrived around 8.45 am, I was told by Grant to run a chain around the bent step. I laid down on the ground to get an extra reach attaching the chain. I then attached the chain back to the rear of the truck attaching it to the main cross base of the tow bar and Grant drove the truck off pulling the step out. I stood well back as they can flick out pretty quickly, we had actually done one step the day previously.

The manhole once opened smelt of rotten eggs gas I could see that it was live [sic].'

The equipment they collected and had on the truck was to undertake that task. The company was operating within a defects liability period. A bent rung is a defect. According to Michael Lenz they had removed one rung the previous day. It was asserted that the compressor may have been used for some other task, and that there was no basis to conclude that the only task they were to do that day was the removal of damaged rungs.

In response the Crown invited [me] to act upon and to accept the statement of Mr Lenz. I do so. In those circumstances I reject the submission that any other inference is reasonably open on the evidence. In particular, I reject the submission that there is another hypothesis available that the men were to go out and do inspections, grease manhole covers, make a list of work that needs to be done, and come back later. I regard this as a fanciful scenario and reject it.

It was submitted that the Court was not able to draw a Jones v Dunkel[2] inference against the company in order to reach this conclusion.[3] I do not accept that the authorities prevent me from drawing such an inference arising from the failure to adduce evidence from Mr Brown, but I do not draw the inference in any event.

It follows from my conclusion that I cannot accept the narrow basis for culpability put by the company, namely that the task of the men was merely or confined to, lifting and greasing manhole covers. That is not what the particulars of the counts state, and it is inconsistent with the Crown opening, and the statement of Mr Lenz.[4]

35 His Honour said that he was satisfied beyond reasonable doubt that the breaches of s 21 particularised in the presentment had caused Mr Cocks's death. He said:

I have found earlier beyond reasonable doubt that Mr Cocks and Mr Lenz were tasked to replace the damaged step in the shaft. There were no written or verbal instructions as to how this was to be done. It was left to their discretion. A sewer manhole is inherently dangerous, both by reason of noxious gases, but also by reason of a fall risk. Both risks are present even in the event that a confined space entry is not proposed.

Mr Cocks was seeking to replace the step without making a confined space entry. When manoeuvring the drill in the restricted environment of the shaft, he proceeded to make an unauthorised confined space entry which led to his death. He took a short cut in the course of performing his designated task. He made the unauthorised confined space entry in circumstances where the company had failed to comply with its own procedures as to provision of written job instructions and verbal information and instructions, and had failed to undertake a job safety analysis.

In circumstances where Mr Cocks was tasked to undertake the step replacement, which involved working in and around a hazard, being the sewer shaft, it was reasonably foreseeable that he may have undertaken the task in an unauthorised or impromptu manner, namely by undertaking a confined space entry without approval and without using the available proper equipment. This was even though he was highly trained and experienced.

When the events are seen in this light, then it was these actions of the company which directly caused the death of Mr Cocks. His actions in undertaking the unauthorised confined space entry do not break the chain of causation. I find affirmatively that they are not a frolic of his own.

The fact that Mr Cocks was highly experienced does not mean that the company avoids causal liability for his death. I am affirmatively satisfied beyond reasonable doubt that had the company undertaken the practicable measures identified in the particulars to the two counts, then the death would not have occurred.[5]

36 Accordingly FRH was sentenced on the basis that its breaches of s 21 caused Mr Cocks's death.

Ground 1: That the Learned Sentencing Judge sentenced on a basis which was not open on the particulars which formed the basis of the plea, namely that Grant Cocks and Michael Lenz had been tasked on 11 July 2003 to replace damaged rungs in the manhole shafts.

Ground 2: That the Learned Sentencing Judge erred in considering inadmissible material, namely evidence of an alleged conversation on the morning of 11 July 2003 between the deceased Cocks and Michael Lenz.

Ground 3: That the Learned Sentencing Judge erred in considering an irrelevant matter, namely Michael Lenz' state of mind on 11 July 2003.

Ground 4: That the Learned Sentencing Judge erred in drawing inferences from the presence of certain equipment on the truck that Grant Cocks and Michael Lenz had been tasked on 11 July 2003 to remove and replace damaged rungs in the manhole shafts.

Ground 5: That the Learned Sentencing Judge erred in finding that it was 'reasonably foreseeable' that Mr Cocks may have undertaken an unauthorised confined space entry without approval and without using the proper available equipment.

Ground 6: That the Learned Sentencing Judge erred in finding that written job instructions or a written JSA would have prevented Mr Cocks from entering the manhole.

Ground 7: That the Learned Sentencing Judge erred by confusing the test for breach of an employer's duty under s 21 of the Occupational Health and Safety Act 1985 with the test for causation.

Ground 8: That the Learned Sentencing Judge erred in admitting into evidence the Victim Impact Statements.

38 Grounds of appeal 3 and 4 challenge the inferences his Honour drew from the equipment taken to the site and from Lenz's evidence about the nature of the job, while ground 1 alleges that it was not open to his Honour to find that the deceased man and Lenz were instructed on 11 July 2003 to remove and replace damaged rungs in the sewer shafts. Ground 2 alleges that his Honour relied on inadmissible hearsay evidence of Lenz in reaching that conclusion.

39 In support of ground 1 counsel for FRH relied on the principle that the Crown must provide clear particulars of the offence with which an alleged offender is charged.[6] He submitted that the breadth of the duties imposed by occupational health and safety legislation required particular precision in specifying the nature of alleged offences. The particulars of counts 1 and 2, as clarified in the Crown opening, were limited to a breach occurring in the context of a job which required the men to grease man-hole covers and report other defects. Thus it was not open to the sentencing judge to sentence FRH on the basis that the job required the men to remove and replace the steps in the sewer.

40 Further, the judge's finding that the task extended to replacing ladder steps was inconsistent with his Honour's finding (based on the Crown's concession) that there was no evidence that the men had been instructed to perform a confined space entry. It was submitted that it was not possible to replace damaged steps, without entering the sewer shaft, which was a confined space. So much was demonstrated by the incident itself.

41 In support of grounds 3 and 4 counsel submitted that even if the terms of the guilty plea had not precluded the judge from sentencing FRH on the basis that the task was limited to man-hole maintenance, it was not open to his Honour to find beyond reasonable doubt that the job involved replacing damaged ladder steps.

42 Counsel for the Crown submitted that the evidence justified the judge inferring either that the men were explicitly instructed to repair the steps, or that the instruction to them to undertake maintenance of the man-holes implicitly included that task. Because FRH had the opportunity to withdraw its plea on becoming aware that his Honour was considering imposing a sentence on that basis, no issue of procedural unfairness arose. [7]

43 Alternatively it was submitted that, at the least, his Honour could infer that Mr Cocks had believed that the job involved repairing the steps and had stepped down onto the ladder to perform that task.

44 Counsel submitted that evidence supporting one or other of those inferences included:**

• the fact that maintenance was being undertaken during the defect identification period, after which the structures would be handed over to SEW;
• the fact that the men were labourers, who had little option but to carry out the tasks allocated to them;
• the fact that the men would not have undertaken the unpleasant task of replacing the steps in a live sewer shaft, unless they believed they were required to do so;
• the fact that the men had identified a step requiring repair in a nearby man-hole on the previous day and the man-hole on which they were working was close by; and
• the fact that the men went to the work site with appropriate equipment for repairing and replacing the steps.

**45 In relation to ground 2, counsel for the Crown submitted that his Honour was entitled to rely on Lenz's deposition (which was included in the hand-up brief at committal) that Mr Cocks had told him they were to go to the site and replace damaged ladder steps. It was conceded that Lenz's evidence of his conversation with Mr Cocks was hearsay and was therefore inadmissible to prove that Mr Cocks had in fact been instructed to repair and replace ladder steps. However counsel relied on Walton v The Queen[8] in support of the submission that Lenz's statement that Mr Cocks told him the men were 'going to remove and replace the steps' was admissible as evidence of Mr Cocks's state of mind about the job which was to be done.

46 Counsel for the Crown also submitted that Mr Cocks's belief, when combined with the other evidence referred to above, provided circumstantial support for the inference that this is what the men had been instructed to do. He conceded that there was no authority on whether a statement admitted under the Walton principle as evidence of a state of mind, could be combined with other circumstantial evidence to establish the truth of facts to which the statement referred.

47 Counsel for FRH submitted that Lenz's evidence was not admissible under the principle in Walton,[9] because the Crown had relied on it as evidence that such an instruction had been given to Mr Cocks and not simply to establish that Mr Cocks believed that it had been given.**

**48 Counsel for FRH's submissions on ground 1 must be accepted. FRH pleaded guilty on the basis that the men's job was to lift and grease the man-hole covers. The particulars in the presentment did not allege that the men's job included repairing and replacing ladder steps, as had the previous presentment, to which the company declined to plead.

49 In Kirk the High Court[10] recently emphasised the importance of particularising alleged breaches of occupational health and safety legislation:[11]**

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.[12] In John L Pty Ltd v Attorney-General (NSW),[13] it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed.[14] In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet.[15] The common law requirement is that an information, or an application containing a statement of offences, 'must at the least condescend to identifying the essential factual ingredients of the actual offence'.[16] These facts need not be as extensive as those which a defendant might obtain on an application for particulars.[17] In Johnson v Miller, Dixon J considered that an information must specify 'the time, place and manner of the defendant's acts or omissions'.[18] McTiernan J referred to the requirements of 'fair information and reasonable particularity as to the nature of the offence charged'.[19]

**50 In this case, unlike Kirk, the particulars in the presentment adequately identified the breaches committed by the appellant.[20] But it would subvert the principle that an accused must be aware of breaches alleged to constitute an offence under s 21, if it were open to the judge to draw inferences inconsistent with those particulars.

51 Counsel for the Crown contended that it would have been open to FRH to apply to the judge to withdraw its plea, when it became apparent to counsel that the judge was proposing to sentence it on a different basis than that relied upon by the Crown. It was submitted that the failure to seek to withdraw the plea prevented FRH from now relying on ground 1.

52 In some circumstances it will be sufficient for a judge to alert an offender of a proposed reliance on facts which go beyond the ambit of an agreed statement of facts provided to the Court for sentencing purposes, so that the offender can then seek to withdraw the plea.[21] However in the circumstances of this case the inference drawn by the judge was directly relevant to the 'essential legal ingredients'[22] of the offences committed by FRH and to the question whether it should be sentenced on the basis that its breaches caused Mr Cocks's death. Thus it was not open to his Honour to infer that FRH instructed the men to repair ladder steps, when FRH did not plead guilty on that basis.

53 Further, even if, contrary to my view, the particulars, standing alone, were sufficiently broad to leave open the inference drawn by the judge, the Crown opening made it clear that its case against FRH was limited to breaches occurring in the context of a task confined to greasing man-hole covers. Accordingly, his Honour erred in sentencing FRH on the basis that the instruction to carry out man-hole maintenance included repairing and replacing ladder steps. For reasons explained below however, his Honour could have found beyond reasonable doubt that the men believed that this was the task they were required to do. Such a finding would not have been inconsistent with the basis on which the company pleaded guilty.

54 Since the first ground of appeal succeeds, FRH must be re-sentenced and it is unnecessary to consider grounds 3 and 4. I therefore do not consider whether, but for the basis of FRH's guilty plea, it would have been open to the judge to infer from the evidence (other than Lenz's evidence about what he was told by Mr Cocks) that the men were in fact instructed to replace damaged steps.

55 Because ground 2 is also relevant to re-sentencing I now turn to the submission that evidence of the alleged conversation on the morning of 11 July 2003 between Mr Cocks and Lenz was not admissible.

56 His Honour's sentencing reasons did not refer to an alleged conversation between Mr Brown, the men's supervisor and Mr Cocks, which Mr Cocks then repeated to Lenz. This would have been 'second-hand hearsay'. Rather, he referred to Lenz's statement in his deposition that 'I did not know what the job was to be that day until Grant told me that we were going to remove and replace the steps'.

57 His Honour referred to the statement as evidence of Lenz's state of mind about what the men were going to do[23] but also seems to have treated it as evidence supporting the inference that in fact the job went beyond the lifting and greasing of man-hole covers.[24] In particular, he said that the limited basis of culpability put forward by FRH's counsel was 'inconsistent with ... the statement of Mr Lenz'.[25]

58 Assuming that his Honour did admit the evidence for the purpose of deciding what instructions were given by FRH, he erred in doing so. As hearsay, Lenz's statement of what he was told by Cocks was not admissible as evidence of the truth of Mr Cocks's statement. However his Honour was entitled to rely on Lenz's deposition as evidence that Mr Cocks believed that the job involved replacing the ladder steps.

59 In Walton[26] the High Court (by majority) held that a witness's evidence that the deceased had told her that she was going to meet the accused was admissible as evidence of conduct from which the deceased's state of mind at the relevant time could be inferred.[27]

Statements by a person about his intentions or state of mind are often admitted into evidence, whether described as an exception to the hearsay rule or as original evidence. ... Wigmore on Evidence,[28] suggests that such statements are an exception to the hearsay rule on the ground that a statement about a person's intentions is direct and testimonial, whereas conduct indicative of such intentions is indirect and circumstantial. But the better view is that evidence of such statements is not merely hearsay. Even when the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author's intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness's testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule.[29]

61 In my opinion Lenz's statement was admissible as evidence of Mr Cocks's belief that the job the men were required to do on the day of the accident involved repairing the ladder steps.

**62 Grounds 5 and 6 contend that his Honour could not have been satisfied beyond reasonable doubt that FRH's failure to give written instructions about the job and to prepare a Job Safety Analysis caused Mr Cocks's death. Ground 8 alleges that his Honour erred by taking account of victim impact statement made by Mr Cocks's wife Ellen and by Lenz.

63 I consider the causation issue as part of the re-sentencing exercise. It is unnecessary to consider ground 7, though I would have held that it was not made out. His Honour's remarks during the plea hearing and his reasons show that he clearly understood that proof of offences under s 21 of the Act did not depend on the Crown proving that the alleged breaches caused Mr Cocks's death.**

64 Counsel for FRH submitted that it could not be established beyond reasonable doubt that FRH's failure to provide written instructions as to how to carry out the task of greasing the man-holes and to prepare a Job Safety Analysis caused Mr Cocks's death. In support of that submission he relied on the statement of the South Australian Supreme Court (in Banco) in R v Hallett[30] that:

The question to be asked is whether an act or series of acts (in exceptional cases an omission or series of omissions) [by the accused] is or are so connected with the event that it or they must be regarded as having a sufficiently causal effect which subsisted up to the happening of the event, without being spent or without being in the eyes of the law sufficiently interrupted by some other act or event.[31]

**65 Counsel submitted that Mr Cocks was an experienced and skilled worker who had received training on the safety precautions applicable to sewer work in 2000 and had completed three refresher courses and re-certifications. The most recent of these was completed in March 2003, only four months before the incident which caused his death. His training would have made him aware of the need to test the air prior to entry, to have a three person crew and to use the winch and safety harness, but he disregarded these precautions. It was apparent to Lenz that Mr Cocks was putting himself at risk when he stepped down below the opening to the sewer and Mr Cocks must have been equally aware of that fact. Mr Cocks's conscious disregard of the safety measures in which he had been trained broke the chain of causation, between his death and FRH's breaches. Accordingly FRH should be re-sentenced on the basis that it had committed two relatively minor breaches of s 21.

66 Counsel for the Crown submitted that FRH's failure to give clear instructions on the nature of the job and to emphasise safety precautions resulted in Mr Cocks forming the belief that the job required the men to replace ladder steps and attempting to replace a step at the top of the ladder without taking those safety measures. It is not uncommon for even experienced workers to forget their safety training when attempting to complete a job. Mr Cocks would not have got into the shaft if he had been given appropriate written job instructions and a Job Safety Analysis had been prepared. Accordingly FRH should be sentenced on the basis that it could be established beyond reasonable doubt that the offences caused Mr Cocks's death.**

67 I consider that the Crown established beyond reasonable doubt that the men believed that their job included removal and replacement of the ladder steps. My conclusion is based on:

• the uncontested fact that when the men went to the site they in fact removed a step (without entering the sewer shaft);
• Lenz's evidence that Mr Cocks intended to work on repairing and replacing the ladder steps; and
• an inference beyond reasonable doubt that the men would only have undertaken the task of repairing the step on the basis of such a belief. In my opinion the men would not have begun the job of step replacement and Mr Cocks would not have undertaken the unpleasant chore of getting into a strongly smelling sewer shaft, if he had not believed that this was what the job required.

**68 In his outline of submissions on grounds 1 and 4, counsel for FRH submitted that the fact that the truck carried equipment suitable for replacing the ladder rungs did not permit an inference to be drawn as to the nature of the task the men were to do.[32] It was said that the truck may have been carrying equipment for a variety of tasks including those to be done on other days. In my opinion the fact that the truck was carrying equipment which was actually used to remove one of the damaged ladder rungs would, in combination with the other matters to which I have referred, support the inference that Mr Cocks believed that the task involved ladder step replacement.

69 Despite Mr Cocks's belief, I consider that the Crown has failed to establish beyond reasonable doubt that, but for FRH's failure to provide written instructions specifying that the job was limited to greasing man-holes (or alternatively written instructions not to enter a confined space without using safety equipment) Mr Cocks would not have got into the man-hole.

70 In the context of civil liability, issues of causation must be resolved by reference to common sense and experience.[33] In my opinion, the provision of such instructions would, on the balance of probabilities, have been sufficient to prevent Mr Cocks from getting into the man-hole and falling to his death.

71 In the context of criminal liability however, causation must be established beyond reasonable doubt. Where the breach of occupational health and safety legislation relied upon by the Crown is a failure to give written instructions (i.e. an omission) there are inherent difficulties in proving that the omission has caused a worker to act in a particular way. In my opinion it cannot be proven to the criminal standard that Mr Cocks would not have got onto the ladder if he had received written instructions limiting the job to greasing man-hole covers, or directing him not to make a confined space entry without using safety precautions. There is a reasonable hypothesis that he might have done so, despite such instructions. Unfortunately it is not uncommon for workers to take short cuts or ignore safety measures. Accordingly, the company cannot be sentenced on the basis that it caused Mr Cocks's death.

72 Nevertheless written instructions limiting the task to greasing man-hole covers would have significantly reduced the possibility that Mr Cocks would have considered it necessary to step down into the sewer at all. Written instructions not to make a confined space entry without using safety equipment (and/or preparation of a Job Safety Analysis identifying risks and safety precautions) would also have significantly reduced the risk that Mr Cocks would ignore necessary safety precautions.

73 Mr Cocks initially stepped onto the second rung of the ladder, which did not involve a confined space entry. His step down probably occurred when he spontaneously decided to complete the task, believing that he could safely ignore safety precautions. The preparation of a Job Safety Analysis would have significantly reduced the risk of him doing so without using the safety equipment.

74 In R v Commercial Industrial Construction Group Pty Ltd[34] this Court said that:**

An employer should recognise that it is common experience that human error will be encountered in the workplace. Error can range from inadvertence, inattention or haste through foolish disregard of personal safety[35] to deliberate non-compliance with the prescribed safe system of work.[36]

**75 The offences to which FRH pleaded guilty did not involve a blatant disregard of employee safety, of the kind that occurred in R v Commercial Industrial Construction Group Pty Ltd. However the considerable dangers associated with sewer work required the company to make every effort to bring home its dangers to its employees. The provision of written instructions and the preparation of a Job Safety Analysis were important measures in doing so. Accordingly FRH must be sentenced on the basis that the offences to which it pleaded guilty were serious breaches of s 21, although it has not been established beyond reasonable doubt that they caused Mr Cocks's death.

76 Because the company has a good safety record and has put additional safety measures in place since Mr Cocks's death, I would not give great weight to specific deterrence. By contrast, general deterrence must be given significant weight in sentencing employers for breach of occupational health and safety requirements.[37]

77 The sentencing judge summarised relevant mitigating factors as follows:**

First, the company has been in business for 46 years without prior conviction. It spends considerable funds on safety and training programs for its employees. It has ISO certification.[38] It has won an award for safety. It has a good reputation within the industry, both as a corporate citizen and for safety. Following the incident it provided support for the family and launched a safety audit. It reinforces its safety structures and procedures by its remuneration arrangements for its senior executives. It gives safety a high priority at a corporate level and its lost time injury rate is tracking down. Its WorkCover premium rate is below the industry average. It was submitted that the Court could sentence on the basis that it was unlikely that there would be repeated failures in the future. [39]

**78 In addition to the above matters, account must be taken of FRH's guilty plea, (though as his Honour noted this occurred late) and to the fact that FRH did not seek to cross-examine Lenz at the committal.

79 Counsel for the Crown submitted that the two offences warranted the imposition of a fine in the range of $60,000 to $80,000. His Honour considered that it was appropriate to impose an aggregate fine for both offences, which arose out of a single course of conduct.[40] I will do likewise.

80 I would re-sentence FRH to a fine of $80,000. If the company had not pleaded guilty to the offences I would have imposed a fine of $120,000.

[1] It has since been increased to $1,051,380 (9000 penalty units).

[2] [1959] HCA 8; (1959) 101 CLR 298.

[3] Counsel for the appellant relied upon Dyers v The Queen (2002) 210 CLR 285.

[4] R v FRH Victoria Pty Ltd (Unreported, County Court of Victoria, Judge Murphy 23 November 2007) ('Reasons'), [20]-[24].

[6] R v ACR Roofing Pty Ltd [2004] VSCA 215; (2004) 11 VR 187, 198-9 (Nettle JA), citing Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 497-8 (Evatt J); R v Irvine [2009] VSCA 239, [127] (Neave JA); Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1 ('Kirk'), [26]-[28].

[7] Chow v DPP (NSW) (1992) 28 NSWLR 593 ('Chow'), 604-8 (Kirby P), 613 (Sheller JA), 622 (Cripps JA); R v Mielicki (1994) 73 A Crim R 72.

[8] [1989] HCA 9; (1989) 166 CLR 283 ('Walton').

[10] French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.

[11] [2010] HCA 1, [26].

[12] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J).

[13] [1987] HCA 42; (1987) 163 CLR 508.

[17] De Romanis v Sibraa [1977] 2 NSWLR 264, 291-2 (Mahoney JA), referred to in John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508, 520 (Mason CJ, Deane and Dawson JJ).

[18] [1937] HCA 77; (1937) 59 CLR 467, 486.

[19] Ibid 501; and see Smith v Moody [1903] 1 KB 56, 60 (Lord Alverstone CJ).

[20] Note that Kirk concerned breaches of ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW), which is differently drafted from the Act.

[21] For detailed discussion see R v Mielicki (1994) 73 A Crim R 72, 77-9 (Southwell, Ormiston and Coldrey JJ); Chow (1992) 28 NSWLR 593, 604-7 (Kirby P).

[22] Chow (1992) 28 NSWLR 593, 605 (Kirby P).

[26] [1989] HCA 9; (1988) 166 CLR 283.

[27] See Mason CJ (ibid 292) and Wilson, Dawson and Toohey JJ (at 300); cf Deane J (307). Deane J accepted that 'evidence of a relevant out of court statement is admissible to prove the maker's knowledge or state of mind in a case where that knowledge or state of mind is itself a fact in issue or provable (as against the party against whom the evidence is tendered) as a fact relevant to a fact in issue', but held that it was not admissible in this case, because evidence of the deceased's intention to go to the particular place did not satisfy those requirements.

[28] (Chadbourn revised edition, 1976) s1715.

[29] [1989] HCA 9; (1989) 166 CLR 283, 288-9 (Mason CJ). See also Kamleh v The Queen [2005] HCA 2; (2005) 213 ALR 97, 100, 103 (Gleeson CJ and Mc Hugh J). The reasoning of Mason CJ in Walton was criticised by Kirby J (103) and Heydon J (105-6) but the criticism related to use of a person's statement of intention as evidence that the intention was in fact carried out. By contrast in this case Lenz's evidence related only to Mr Cocks' belief.

[30] [1969] SASR 141.

[31] Ibid 149 (Bray CJ, Bright and Mitchell JJ).

[32] This submission was made in the context of challenging the judge's finding that the men were instructed to replace damaged rungs, but has some relevance to the men's belief as well.

[33] March v E & M H Stramare Pty Limited [1991] HCA 12; (1991) 171 CLR 506, 515 (Mason CJ).

[34] [2006] VSCA 181.

[35] Inspector Dieter Franke v Vin Heffernan Pty Ltd [2005] NSWIR Comm 16, [117] (Haylen J).

[36] R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181, [49] (Maxwell P, Buchanan and Redlich JJA).

[37] R v Irvine [2009] VSCA 239, [52] (Neave JA).

[38] This is accreditation from the Federal Safety Commission of construction companies which meet Federal Government criteria

[40] Sentencing Act 1991, s 51.