20 The prosecutor has sought leave to appeal pursuant to s197 of the Industrial Relations Act 1996 (the Act). After some consideration, we are inclined to grant leave. We do so primarily because there are issues arising in this matter in relation to sentencing on appeal that warrant our consideration, going as they do to the appellant's contention that the sentence imposed was manifestly inadequate and, in turn, to the proper administration of justice.
21 In relation to the cross-appeal, s53(1) of the Crimes (Local Courts Appeal and Review) Act 2001 provides:
Any person who has been convicted or sentenced by a Local Court, otherwise than with respect to an environmental offence, may appeal to the Supreme Court against the conviction or sentence on a ground that involves:
(a) a question of fact, or
(b) a question of mixed law and fact,
but only by leave of the Supreme Court.
22 Leave is required in relation to the cross-appeal.
23 On that point, we are not persuaded that leave to appeal should be granted to the respondent with respect to the cross-appeal. To the extent that the respondent simply contends that his Honour 'erred in law', we do not agree. Overall, the cross-appeal lacks any real issue of law or principle and no public interest issue properly arises.
24 To start with, the respondent cites as a ground of appeal that his Honour 'failed to appreciate that the required standard of proof in the case was proof beyond reasonable doubt'. Beyond that assertion, the respondent does not identify any relevant legal or factual error made by his Honour relevant to this point. In his judgment, his Honour stated at p6:
I am satisfied to the required standard that the particulars as alleged had been made out against both Dromore and Kanwa.
25 As was stated by the majority in Drake Personnel Limited t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 459:
The determination of whether an offence is proven according to the correct criminal standard is undoubtedly a fundamental feature of a criminal trial and the application of the wrong standard of proof would constitute a fundamental flaw in the trial: see Thomas v The Queen (1960) 102 CLR 584 at 593. However, it does not follow that a criminal trial is fundamentally flawed because the standard which is applied has not been expressly stated in the reasons for decision. In our view, there can be no doubt in proceedings of this kind what the appropriate standard of proof is, that the Chief Industrial Magistrate applied that standard or that the parties were in any doubt that the correct standard was being applied ... whilst it may be preferable for a judicial officer to state the standard of proof which has been applied, in our opinion there is no error of law in this case in failing to do so.
26 We would concur with the view expressed. Additionally, for further re-affirmation on this point, see R v Winner (1995) 79 A Crim R 528 at 529 - 530:
... It is not self evident that, in instructing himself or herself, a judge must express all of the matters which necessarily have to be stated to a jury unfamiliar with even the basic principles of the law. For example, it would not seem to be necessary for the judge to expressly refer, at least at any length, to rudimentary and uncontested principles, such as on the onus and burden of proof. It might be assumed that this is known and applied, in the absence of an indication that a mistake has occurred. ...
27 In a similar vein, in R v Timu [2002] NSWCCA 421 Sperling J (Buddin J agreeing) dismissed a ground of appeal averring that the sentencing judge had not applied the correct onus and standard of proof in finding the facts upon which the sentence was to be passed. In doing so, his Honour said at [25]:
In relation to disputed facts going to aggravation of the offence, the burden of proof was on the prosecution and the standard of proof was proof beyond reasonable doubt : Olbrich (1999) 199 CLR 270. The trial judge did not state those principles. However, it cannot be doubted that a judge of Neild DCJ's experience intended to apply them. It follows that his Honour was satisfied beyond reasonable doubt of the factual matters in dispute.
28 We also refer to the approach recently adopted by the Chief Justice (with whom Mason P and Handley JA agreed) in Powercoal Pty Ltd and Anor v Industrial Relations Commission of NSW & Anor (2005) NSWCA 345 at [71] as follows:
That in some parts of its judgment the Full Bench uses language that is not in terms the language of beyond reasonable doubt does not appear to me to be of any particular significance in the context of the judgment as a whole. No doubt there will be cases in which it is appropriate to conclude that the invocation of the beyond reasonable doubt standard was a mere invocation and that the Court did no more than pay lip service to the principle. (See, e.g. Harling v Hall (1997) 94 A Crim R 437 at [8]; Lions v Taylor (1999) WASCA 86 at [10] and [19].) This is not such a case. Considering the judgment as a whole, the Full Bench did, in my opinion, apply the criminal standard of proof.
29 We consider that, when consideration is given to the whole of the judgment of the Chief Industrial Magistrate (and, in particular, to his statement set out in paragraph [24] above), his Honour did apply the criminal standard of proof although he did not specifically define what he meant by 'required standard'. Further, the Chief Industrial Magistrate has many years of experience in dealing with criminal prosecutions, sitting alone. We are confident that, when his Honour asserted in his judgment he was 'satisfied to the required standard', he intended to and did apply the criminal standard of proof.
Considerations as to the cross-appeal going to the respondent's conviction
30 We turn to the other grounds of appeal relied upon in the respondent's cross-appeal that have been set out above. They all turn on issues of fact in relation to the evidence adduced and the conclusions able to be properly drawn by his Honour in determining that the offence against Kanwa and thereby the respondent was established.
31 As is evidenced by reference to those grounds of appeal above, the respondent focuses, wrongly in our view, on the circumstances of the accident rather than on the real nub of an offence under s15(1) of the Occupational Health and Safety Act 1983, that is, the risk to the health and safety of the respondent's employees, particularly Mr Caroma. As the agreed facts disclosed, there was no issue before his Honour that:
(i) Kanwa was an employer;
(ii) Mr Caroma was an employee;
(iii) the respondent/cross appellant was a director of Kanwa; and
(iv) the accident involving Mr Caroma happened at Kanwa's place of work.
32 Further, there was no dispute before his Honour that Mr Caroma was inside the vegetable washing machine when it was turned on and he was injured as a consequence. Ultimately, the only element of the offence left for his Honour to determine was whether there was a causal link between the failures particularised and the risk to health and safety.
33 The evidence relied upon by the prosecutor to establish that causal nexus were a number of statements/representations made by relevant persons, they being Ishaq Mohammadi, Antonio Iannelli, Wagner Caroma and Douglas Coote. Mr Iannelli was, at the relevant time, the Manager of Dromore. Mr Coote was engaged on behalf of Kanwa in supervising it's employees at Dromore Station on the day and Mr Caroma and Mr Mohammadi were employees of Kanwa. In addition to Mr Caroma and Mr Coote, Mr Mohammadi was present on 4 June 2001 in the vicinity of the vegetable washing machine. He assisted in rescuing Mr Caroma.
34 All four people were interviewed by Inspectors of WorkCover shortly after the accident. Inspector Franke, the prosecutor in these proceedings, interviewed Mr Mohammadi and Mr Iannelli on 20 June 2001 at Dromore Station. Mr Iannelli signed a record of that interview. Mr Mohammadi initialled the handwritten record of his interview written by Inspector Franke in his notebook.
35 Inspector Constable of WorkCover interviewed Mr Caroma at Canberra Hospital on 6 June 2001, two days after the accident. He made notes of that interview in his notebook. Inspector Constable interviewed Mr Coote at Dromore Station on 20 June 2001. Subsequently, none of the four were able to be located in order to subpoena them to give direct evidence based on their prior representations. In accordance with the provisions of s67 of the Evidence Act, notice was given to admit the representations made in accordance with s62(2) of the Evidence Act.
36 We observe no appellable defect in his Honour's reasoning in admitting the statements for the reasons detailed by him.
37 Critically, the oral representations made by Mr Caroma to Inspector Constable shortly after the accident included representations to the following effect:
(i) Caroma was directed to go inside the barrel of the machine by a person known to him as 'John Coops'.
(ii) Caroma was directed to clean the inside of the barrel of the machine.
(iii) Caroma had climbed inside the barrel of the machine and cleaned the barrel in this manner on a number of occasions previously.
(iv) Caroma estimated that it takes about 2 minutes to remove the rocks and stalks from the tumbler of the machine.
(v) Caroma was inside the barrel of the machine when it was suddenly switched on.
(vi) Caroma was not aware of any system to isolate the machine so that it could not be turned on while a person was inside the tumbler of the machine.
38 Inspector Constable was cross-examined as to the representations made by Mr Caroma as recorded in his notebook. He confirmed his conversation with Mr Caroma and he was not shaken in cross-examination.
39 As earlier stated, it is not in issue that reference to 'Mr Coops' by Mr Caroma was reference to Mr Coote.
40 In relevant and significant respects, the oral representations made by Mr Coote to Inspector Constable corroborated the representations made by Mr Caroma. Those representations included:
(i) Coote's position was that of foreman. His duties include supervising the pickers, irrigation and harvesting of the crop.
(ii) Coote was also employed as a foreman by Kanwa. His duties included supervising the staff. He stated that the property, machinery and building are owned by Dromore and the workers are employed by Kanwa.
(iii) Coote has been employed in these positions since 1995.
(iv) On 4 June 2001, Coote was setting up the plant and the vegetable washer ('machine') for a run of potatoes.
(v) On 4 June 2001, Coote instructed Wagner Caroma ('Caroma') to clean the rollers and the dirt section at the base of the tumbler of the machine. Three other employees, known to Coote as Joe Gun, Charlie Chami and Adnau Chami were working nearby.
(vi) Coote then started the potato packing section of the plant. He checked the packing plant to ensure that it was in working order.
(vii) Coote then started the potato washing section of the plant ('washing plant'), which included the tumbler of the machine. He stated that he had previously experienced problems with the drive chains. On this occasion, the drive chains were sliding or jumping cogs, so he turned the machine off immediately.
(viii) Coote then tightened the drive chains which took approximately 10 minutes.
(ix) Coote restarted the washing plant. The drive chain was still too loose so he immediately stopped the machine again to re-adjust the drive chain, which took approximately three minutes.
(x) Coote then walked up to inspect the washing plant. He saw Caroma in the tumbler of the machine.
41 In addition, the Notice given under s67 of the Evidence Act with respect to Mr Coote also included the following:
In accordance with section 5(b) of the Evidence Regulation 2000 (NSW), the substance of all other relevant representations made by the person who made that previous representation are as follows:
1. Inspector Martin Constable asked 'Was there any instructions that staff were not to climb into the tumbler?'
Coote answered 'No, it was only done once or twice a year, it was not normal procedure.'
2. Coote stated that it was not normal practice to climb inside the tumbler of the machine to clean it out.
3. Coote stated that he did not know if there was any reason for Caroma to be inside the tumbler.
42 Inspector Constable was also cross-examined as to the representations made to him by Mr Coote and recorded in his notebook. He adhered to the substance of those representations and his evidence on those matters was not undermined.
43 In all the circumstances, his Honour was entitled to accept the veracity of the representations made to Inspector Constable by Mr Caroma and Mr Coote. Taken together, the representations of Mr Caroma and Mr Coote establish that, as Mr Caroma's supervisor, he directed Mr Caroma to 'clean the rollers and the dirt section at the base of the tumbler of the machine'. While Mr Coote could give no reason why Mr Caroma would be inside the tumbler, he acknowledged there were no instructions to staff not to do so and that 'it was only done once or twice a year, it was not normal procedure'.
44 Further, as Mr Caroma represented, it was 'Mr Coops' (that being Mr Coote) who 'told me to get in and clean it out. I have done it lots of times',
45 Clearly, his Honour accepted that evidence without qualification. He was entitled to do that. Significantly, he did so against the background of the absolute nature of the duty cast by s15(1) on employees and the need only to be satisfied with respect to the one remaining element of the offence, that being the causal nexus between the particularised breach and the risk to safety.
46 His Honour did hear direct evidence from the respondent/cross appellant. Mr Kanawaty confirmed Mr Cootes role to supervise the workers, including Mr Caroma, who were involved in the cleaning and packing of vegetables. Mr Kanawaty also stated that he left the training of the workers to Mr Coote and other supervisors.
47 As reference to the offence details set out above reveals, the particularised breach alleged failures going to the provision of plant and systems of work, particularly as to the operation of the vegetable washer as well as instruction, training and supervision in relation to the safe operation of the vegetable washer. There was also a particularised failure going to a failure to provide adequate information about the safe use of the vegetable washer.
48 Beyond the above considerations, it is apparent his Honour had sufficient evidence to satisfy himself in relation to the other breach failures particularised. It is convenient, we believe, to consider them separately as follows:
(i) The defendant failed to provide or maintain plant and systems of work which were safe and without risks to health.