7 The appellant has a right to appeal its conviction on any ground which involves a question of law pursuant to s 196 of the Industrial Relations Act 1996 and s 5(1)(a) of the Criminal Appeal Act 1912.
8 In its grounds of appeal, the appellant contended that Boland J made the following errors of law:
(1) Equating the risk of accidental injury with that of injury from deliberate action, or in the alternative by failing properly to distinguish those risks; and
(2) Holding that the risk particularised was causally connected with the want of safety demonstrated by the particular occurrence of injury to officer Johnson.
9 The appellant did not raise any issue concerning the rejection at first instance of its defence pleaded under s 53(a) of the Act. Nor did it raise any issue concerning the severity of the sentence. It simply sought that the sentence be quashed on the basis that the conviction was in error.
10 Both at first instance and in the appeal, it appeared that the appellant was in substance putting an argument that has already been rejected by this Court in WorkCover Authority of New South Wales (Inspector Keelty) v The Crown in the Right of New South Wales (Police Service of New South Wales (No 2) (2001) 104 IR 268 which was followed in O'Sullivan v The Crown in the Right of the State of New South Wales (Department of Education and Training) (2003) 125 IR 361, which in turn was upheld by the Full Bench on appeal (see The Crown in the Right of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198).
11 It should now be beyond doubt that (subject to s 53 defences) employers are obliged to minimise or reduce risks which may be created by external factors outside the employer's control such as the uncontrollable, unpredictable acts of a violent armed member of the public (see Police Service of New South Wales (No 2) and South Sydney Junior Rugby League Club Limited v Inspector Bestre [2005] NSWIRComm 116) or the violent acts of severely intellectually disabled students considered recently by the Full Bench in The Crown in the Right of New South Wales (Department of Education and Training) v Maurice O'Sullivan.
12 In oral submissions the appellant disavowed any attempt to challenge that line of authority, and emphasised that its case centred upon delineation of the appropriate risk and the related issue of causation. As we discuss below, the appellant's arguments relating to risk were subsequently reduced to an argument concerning the adequacy of particulars. This had a corresponding impact upon its submissions as to causation.
13 The appellant contended that Boland J erred by conflating the risk of accidental injury with the risk of injury due to deliberate actions. According to the appellant's written submissions, the former was the risk particularised by the prosecutor; the latter was the risk actually proven; and the two did not marry. But we can find no reason to introduce such an artificial distinction. The entire case below proceeded on the basis of the general risk of collision between a police officer and a motor vehicle on the roadway - whether such a collision be deliberate or accidental.
14 We reject the appellant's written submission that "the matter was presented to the Court as one of risk to an employee of accidental injury"; in further and better particulars of the charge the prosecution alleged in writing on numerous occasions that:
· "the defendant's system of work placed employees at risk of being struck by moving motor vehicles";
· "The risk to safety about which the prosecutor makes complaint is the risk of the relevant officers being stuck by moving vehicles whilst the officers were present on the carriageway[s] for the purpose of signalling a driver[s] to bring their motor vehicle[s] to a stop on the side of the carriageway";
· "the system of work was not safe in that the defendant's employees were permitted, whilst undertaking Lidar operations, to step onto the carriageway for the purpose of signalling [a] driver[s] to bring their motor vehicle[s] to a stop at the side of the carriageway, thereby exposing the relevant officers to a risk of being struck by [a] motor vehicle[s]"; and
· " ...the Prosecutor alleges that Mark Wayne Johnson and Glenn John Hartley were at risk whilst on the carriageway for the purpose of signalling the driver[s] of [a] motor vehicle[s] to move to the side of the roadway and bring their vehicles to a halt in circumstances where inadequate steps had been taken to reduce - let alone eliminate, the risk of those officers being struck by a motor vehicle. In particular, Mark Wayne Johnson was placed at risk of being struck by and was struck by a motor vehicle bearing New South Wales registration number SWY-956. The Prosecutor also alleges that Glenn John Hartley was placed at risk of being struck at the relevant time and place by a motor vehicle driven by Helen Anne Robinson Styan."
15 These further and better particulars clearly include accidental and deliberate collisions and (despite being invited to do so by the Full Bench) the appellant did not refer to any statement or submission by the respondent in support of its contention that the charge should be read in a restrictive manner. Moreover, it was clear from the prosecutor's opening submissions at first instance that the prosecution planned to deal with the risk of both deliberate and accidental collisions. His Honour's judgment also makes it clear that in its case below the appellant sought to address the risk of an officer being struck deliberately while on the carriageway. At [49], his Honour noted the appellant's submission that:
....on 18 May 2000 no system of work, instructions, information or training regarding safety would have avoided the risk of Mr Johnson being hit whilst on the carriageway. Mr Dalton was apparently intent on hitting Mr Johnson and despite Mr Johnson's attempts to evade the vehicle - even crossing the centre line of the roadway to do so - he was unsuccessful.
16 Ultimately, in oral submissions the appellant resiled from its written submissions, conceding (a) that the prosecution did not at any stage confine their case to the risk of injury arising from an accident; and (b) that the charge related to one risk - the risk of being struck - which could arise in two ways: accidentally or deliberately.
17 The appellant relied upon the observations of Dixon J in Johnson v Miller (1937) 59 CLR 467 at 489 that a prosecutor:
"...should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be appraised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge."
18 We do not see that Johnson v Miller assists the appellant in this case. That case concerned a prosecution for breach of the Licensing Act (1932-1935) SA on the basis that a certain person was seen emerging from licensed premises during prohibited hours. The prosecutor failed to provide particulars as to the identity of that "certain person". In a prosecution under the Occupational Health and Safety Act 1983, the prosecutor is not restricted by the factual circumstances surrounding an injury in bringing a charge although those circumstances may provide evidence in support of the prosecution's allegation of exposure to risk. In this case, we are satisfied that the particulars provided were sufficient to enable the appellant to appreciate the case it was required to meet and that the proceedings at first instance were conducted on the basis of those unambiguous particulars and the prosecutor's opening submissions.
19 Nor do we accept that there was any failure in this case to properly distinguish the risk (a matter impliedly accepted by the appellant in its concession during oral submissions that there was only one risk which could arise in two ways): the risk considered by Boland J in concluding that the offence had been proven was quite properly the risk enumerated in further and better particulars. Indeed, his Honour would almost certainly have fallen into error had he artificially limited the charge to consider only the risk of being accidentally struck by a motor vehicle.
20 The observations of Boland J at [51], which we endorse, show how contrived the appellant's distinction is:
[51] This submission begs the question of whether Mr Johnson should have been on the carriageway in the first place given the obligations on the defendant to ensure the safety of its employees. It is accepted that policing is a dangerous occupation, highway patrol duties no less so. Standing on a roadway signalling drivers to pull over is patently a hazardous operation. Putting aside the obvious risk of the miscreant who may have a grudge against police and who might take the opportunity to exact retribution for some perceived past wrong by running a police officer down, even the normally responsible driver may present a risk to police involved in roadside detection duties. This could occur either through inattention or carelessness or because the vehicle being driven was mechanically defective. ...
21 In this case, there was no dispute that the appellant could not "control" or otherwise affect the conduct of a person such as Mr Dalton. However, as the respondent submitted, the appellant was equally unable to control the behaviour of a distracted driver, a negligent driver, a driver heavily effected by alcohol or drugs, a driver struck by panic, a driver who "blacks out" (for example due to diabetes), or of a driver whose vehicle experienced brake failure or some other mechanical defect.
22 By way of contrast, the appellant was able to plan, control and dictate the practices of its officers by specifying and enforcing standard operating procedures and safe work methods aimed at controlling risks which cannot be eliminated thereby reducing the risk of injury to its officers: see Police Service of New South Wales (No 2) and South Sydney Junior Rugby League Club Limited v Inspector Bestre. As the respondent noted, Lidar speed detection duties were planned, and carried out at pre-determined locations within a command. The evidence showed that when the appellant conducted other on-road enforcement duties (such as random breath testing) it adopted a high visibility approach using advance warning signs, flashing lights, illuminated roof top signs, designated stopping zones and barriers to put traffic on notice of the presence of police officers and to reduce the risk of motor vehicles colliding with officers. This evidence underlines the appellant's concession that officers were placed at risk by being on the road and that the appellant was aware of the risk. The appellant did not challenge his Honour's findings that there was no policy reason why drivers could not be warned about the presence of police at a Lidar speed detection site; that the marked police car could have been used as a barrier; that such an arrangement would have been significantly safer; and that there was no evidence that operating in this fashion would have been less effective.
23 We are similarly unpersuaded by the appellant's submissions concerning causation. Each of the appellant's written submissions was mired in its original contention that Boland J incorrectly considered the risk of being struck by a motor vehicle accidentally, rather than the risk of being deliberately struck (which we have already rejected). The appellant's written submissions in reply reiterated its submissions at first instance that the prosecution was required to (and failed to) establish a causal nexus between the defendant's failures and the risk of being struck by a motor vehicle deliberately.
24 The fact that Sergeant Johnson may have remained at risk from a driver deliberately intending to run him down even if he had stayed off the carriageway is irrelevant and speculative. The appellant's suggestion that high visibility may increase the risk to an officer engaged in Lidar operations was also speculative. There was no evidence on either point. It cannot be doubted that the relevant risk - that of Sergeant Johnson being struck by a motor vehicle - was heightened by his work practice of stepping on to the carriageway in order to signal vehicles to stop. Indeed, specific findings to this effect were unchallenged by the appellant. In a very practical sense, the risk to Sergeant Johnson's health and safety increased or become more serious as a consequence of the appellant's failures.
25 We refer, in this latter respect, to the approval given by the majority of the High Court (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ) in Royall v The Queen (1990) 172 CLR 378 (at 387, 411-12 and 425 respectively) to the statement made by Burt CJ in Campbell v The Queen (1981) WAR 286 at 290 as follows:
[it is] enough if juries [are] told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.
26 The observations in WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 could have been written in response to the present appellant's written submissions. After referring to O'Sullivan and Police Service (No 2), the court observed (at [133]):
133 It is clear from the foregoing cases that careful attention must be paid to the correct identification of the risk the subject of the charges: Police Service (No 2) and O'Sullivan make it clear that it is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.
(see also South Sydney Junior Rugby League Club at [42])