WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales - [2001] NSWIRComm 90 - NSWIRComm 2001 case summary — Zoe

NSWNSWIRComm

WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales

[2001] NSWIRComm 90

Industrial Relations Commission (NSW)|2001-07-01|Before: Hungerford J, Mr P

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Court

Industrial Relations Commission (NSW)

Decision date

2001-07-01

Before

Hungerford J, Mr P

Source

Original judgment source is linked above.

Judgment (124 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales (Police Service of New South Wales) (No 2) [2001] NSWIRComm 90 PROSECUTOR WorkCover Authority of New South Wales (Inspector Ronald James Keelty) PARTIES : DEFENDANT The Crown in Right of the State of New South Wales (Police Service of New South Wales) FILE NUMBER: IRC 5288, 5289, 5290, 5291, 5721, 5722, 5723, 5724, 5725 and 5726 of 1997 CORAM: Hungerford J CATCHWORDS : Occupational Health and Safety - Prosecution of the Crown (in respect of the Police Service) for failure to ensure the health, safety and welfare of two police officers fatally injured while performing duty in an operational situation - Nature of the liability created by the statute - Identification of the relevant risk to safety - Whether the failure was that of the employer - Need for a causal connection between the failure and the detriment or risk to safety - Alleged failures related to weapons issued, training and radio communication equipment - No case to answer submission by defendant at close of prosecutor's case - Whether defendant had a case to answer - Test to apply on a no-case to answer submission - Question of law - Standard of proof to be beyond reasonable doubt.

[3]

Occupational Health and Safety Act 1983 s 4(3A) s 15 s 16 s 49(4) s 49A(1) s 53 cl 23 of Sch LEGISLATION CITED : Occupational Health and Safety Amendment (Police Officers) Act 2000 Police Service Act 1990 s 6 Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 Cullen v State Rail Authority (NSW) [1989] 31 IR 207 Doney v The Queen (1990) 171 CLR 207 Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 May v O'Sullivan (1955) 92 CLR 654 R v Murphy (1985) 63 ALR 53 CASES CITED : Torrance v Cornish (1985) 79 FLR 87 WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 WorkCover Authority of New South Wales (Inspector Batty) v Crown in Right of the State of New South Wales (Department of Education and Training) [2000] NSWIRComm 181 WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd, t/as Boral Asphalt (2000) 98 IR 246 WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 Zanetti v Hill (1962) 108 CLR 433 HEARING DATES: 02/20/2001; 02/22/2001 DATE OF JUDGMENT: 05/02/2001

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JUDGMENT: - 61 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Wednesday, 2 May 2001 Matters Nos IRC 5288, 5289, 5290, 5291, 5721, 5722, 5723, 5724, 5725 and 5726 of 1997 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RONALD JAMES KEELTY) v CROWN IN RIGHT OF THE STATE OF NEW SOUTH WALES (POLICE SERVICE OF NEW SOUTH WALES) Prosecutions under section 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm 90 1 At the close of the prosecutor's case in these matters, the defendant, the Crown in right of the State of New South Wales (Police Service of New South Wales), made a submission that there was no case to answer in respect of six summonses brought against it by Ronald James Keelty, the prosecutor as an inspector of the WorkCover Authority of New South Wales, for breaches of s 15(1) of the Occupational Health and Safety Act 1983. The charges arose out of an incident at Walker Street, Crescent Head in the State in the early morning of 9 July 1995 when two police officers were killed in the course of the performance of their duty. As to four other charges brought under s 15 (1) in relation to the same incident, the prosecutor offered no evidence and it was accepted by the parties that those charges should be dismissed with no order as to costs. 2 The circumstances in which these matters arose were not in the generality in dispute. For the purpose of considering the no-case to answer submission, it is therefore convenient to refer to the brief outline of the events given by counsel for the defendant, Mr P S Hastings QC who appeared with Mr G J Willis of counsel. The outline was accepted by counsel for the prosecutor, Mr S Crawshaw SC and Ms L McManus of counsel, as being a fair statement of what occurred. Mr Hastings said : On the night in question a lady had been subject of a call from a former boyfriend, John McGowan, in the course of which he made a threat saying he would kill her. She then went or complained to the police by ringing triple O and was put through to Port Macquarie. That was relayed to Kempsey, which was the nearest police station. The two officers shot, Senior Constable Addison and Senior Constable Spears, were given the job. They went to Crescent Head. By the time they spoke to the complainant it was also known that the man McGowan had damaged the vehicle of the complainant's boyfriend by spraying paint on it.

[44]

e) Senior Constable Addison and Spears suffered fatal injuries. 4 As to the four charges which were not proceeded with, Matters Nos IRC 5289 (systems to ensure operational police receive annual mandatory training for weapons control), 5723 (training in communication equipment), 5725 (instruction in the use of portable communication equipment) and 5726 (training in the use of portable communication equipment) of 1997, and in respect of which the prosecutor led no evidence, I propose to act in accordance with the joint view of the parties, that is, to dismiss each of those four charges with no order as to costs. 5 Section 15 of the Occupational Health and Safety Act , so far as is relevant, provides : 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) … (4) … Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

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Section 4(2) relevantly states : (2) For the purposes of this Act, risks arising out of the activities of persons at work shall be treated as including risks attributable to … the plant … used for the purposes of an undertaking … . 6 At the outset, I mention, whatever may have been the position before, that as from 8 May 2000 a police officer is, for the purposes of the Occupational Health and Safety Act, an employee of the Crown and is at work throughout the time when the officer is on duty at any place: see s 4(3A) of the Occupational Health and Safety Act as inserted by the Occupational Health and Safety Amendment (Police Officers) Act 2000 (Act No 11 of 2000) and which, by cl 23 inserted into the Schedule thereof, extends to proceedings commenced, but not finally determined, before the commencement of that amending statute on 8 May 2000. Thus, previous doubts in the present proceedings about the status of police officers as to whether they were employees of the Crown as an employer so as to make the defendant amenable to a charge for a breach of s 15(1) were removed. With those essential elements of the present charges settled, the no-case to answer submission focused upon the sole issue whether the prosecutor's evidence had established that in respect of each of the six charges the defendant could be found to have relevantly failed to ensure the health, safety and welfare of the two officers concerned at Crescent Head in the early morning of 9 July 1995. 7 In Mr Hastings' submission, the proper test to apply as to whether there was no-case to answer was "whether there is evidence in the prosecution case which is capable of satisfying a reasonable jury, properly instructed, of the guilt of the defendant". Senior counsel submitted that the evidence was not capable of satisfying that test. Shortly stated, the fundamental premise of Mr Hastings' submissions was that the defendant had not committed any offence under the Occupational Health and Safety Act because any risk to the safety of the two officers was "created externally from a source over which the employer has no control and no ability to predict". As senior counsel emphasised, the "situation of risk was created by the unlawful and criminal acts of somebody totally unrelated to the Police Service, namely, McGowan". The defendant's written outline of argument put it this way : There was nothing intrinsically unsafe or a risk to health in the system of work provided by the Defendant. For example, the issue of revolvers as the standard weapon did not create a situation of potential danger (other than the irrelevant consideration that an officer might shoot himself). Any situation of danger was created or liable to be created by the unlawful actions of McGowan over whom the Defendant had no control.

[68]

This case is fundamentally defective because it alleges that there were failures in relation to ensuring that officers receive training prior to being placed on operational duties. Both officers had been engaged in operational duties for many years before they were transferred to Kempsey. The transfer for Senior Constable Spears had no effect on the duties expected of him and there was no need to retrain him. Similarly, Senior Constable Addison had been continually on operational duties prior to his transfer including, while engaged in the North West Major Crimes Squad Drug Unit and then in the Surveillance Branch. The duties at Kempsey, if anything, were less demanding than his prior role, and there is no logical reason why he required retraining upon such a posting. 10 Mr Hastings did not deal in particular with the charges in Matters Nos IRC 5290 and 5721 of 1997, which charges both related to various aspects of the training of police officers. In submitting that those two charges also should be dismissed, he relied upon the broad submissions initially made by reference to the tests in Cullen v State Rail Authority and Haynes v C I & D Manufacturing . On that basis, senior counsel put that "one can't say that the provision of training would have ensured the safety of the officers because the training didn't create the situation of danger. It was created by McGowan." It was properly conceded by Mr Hastings , and I agree, that "one can't so neatly say that training is not causally connected to the ultimate risk as identified by the prosecution. … I would accept that one can't so readily say there is no evidence that training wouldn't have made any difference". I understood the submission to be drawing a distinction between these two charges concerning training and those four charges which were particularly addressed in relation to the speed loader, the adequacy of the service revolver compared to the self-loading pistol and the adequacy of the communication equipment in an operational situation. In any event, certainly on its face, the charge in Matter No IRC 5724 of 1997, which was individually dealt with, included alleged failures by the defendant in relation to the training of police officers prior to them being placed on operational duties. 11 Mr Crawshaw provided a detailed written outline of argument in response to that put for the defendant and supplemented it orally at the hearing. As to the question to be decided on a no-case to answer submission, senior counsel said it was "not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands the defendant could lawfully be convicted". Reference in support of that legal proposition was made to May v O'Sullivan (1955) 92 CLR 654 at p 658, Zanetti v Hill (1962) 108 CLR 433 at p 442 and Torrance v Cornish (1985) 79 FLR 87 at p 88. In emphasising the proper approach in terms of established principle, Mr Crawshaw cited the following conclusion from Doney v The Queen (1990) 171 CLR 207 at p 214 : It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty. 12 In joining issue with the defendant's general submissions as to the proper test to apply in determining the nature of the offence which s 15(1) of the Occupational Health and Safety Act creates, including an identification of the relevant risks to safety which the section proscribes and the causal connection therewith of the defendant as the employer, Mr Crawshaw put four basic propositions, namely - (1) The relevant failure by the defendant the subject of the charge in each summons was not the risk created by Mr McGowan but the risk arising from its various failures in a situation where the two police officers were working in an environment where they were at risk of being shot or experiencing physical harm; the relevant risk, therefore, was that brought into existence by the defendant. (2) Whilst the defendant was not aware Mr McGowan posed the specific risk which occurred, the defendant was well aware of the type of risk which could arise for police officers engaged on operational duties; it was not a question of the defendant being responsible for the actions of Mr McGowan. The defendant should be held responsible for its acts or omissions in circumstances where the type of risk posed by Mr McGowan was well known to it. (3) To interpret s 15, as did the defendant, as not extending to any risks to employees arising from the unlawful actions of third parties would be a mandate for employers to ignore such risks and there was no basis in the legislation for such a narrow approach. That was especially the case with police officers whose main role was to deal with unlawful activity and, given the intention of the statute to improve the safety of the working environment, no such narrow view should be accepted. (4) The defendant's submission that the prosecutor must prove that the absence of the act or omission allegedly creating the risk to safety would have ensured the health and safety of the two officers misapprehended the statutory duty on the employer pursuant to s 15(1) - rather, the duty was to show that the act or omission amounted to a failure by the employer to ensure or provide for the safety of the two officers; the prosecutor must show an act or omission which detracted to the relevant degree from the obligation to ensure safety in the workplace.

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In the present case, those four propositions all favoured the rejection of the no-case to answer submission. Mr Crawshaw referred to and relied upon various authorities in this Court, including those where the criminal activity of third parties posed risks to the safety of employees, namely : Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at pp 49-50; WorkCover Authority of New South Wales (Inspector Ankucic) v Drake Personnel Ltd, t/as Drake Industrial (No 1) (1997) 89 IR 374 at p 382; Drake Personnel Ltd, t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at pp 449-456; WorkCover Authority of New South Wales (Inspector Tuckley) v Crown in Right of the State of New South Wales (Department of Community Services) (1999) 96 IR 1; WorkCover Authority of New South Wales (Inspector Hannan) v Bitupave Ltd, t/as Boral Asphalt (2000) 98 IR 246 at pp 250-253; Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 at pp 65-67, 74-76; Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at p 97; and WorkCover Authority of New South Wales (Inspector Batty) v Crown in Right of the State of New South Wales (Department of Education and Training) [2000] NSWIRComm 181. 13 As did Mr Hastings , Mr Crawshaw then dealt with the individual summonses by reference to the detailed evidence called for the prosecutor. Again, as did Mr Hastings , Mr Crawshaw relied upon Haynes v C I & D Manufacturing (60 IR at p 157) but for the proposition that the "defendant's analysis of the deficiencies in the individual summonses is based on the misapprehension that the prosecution must demonstrate an actual risk to health and safety rather than the potential risk". 14 As to the four charges individually dealt with by Mr Hastings , the main features of Mr Crawshaw's response may be demonstrated by his following submissions : The speed loader charge - IRC97/5288

[85]

In relation to each of the submissions so put, Mr Crawshaw identified the particular evidence which he said supported them. 15 An aspect necessarily arising in these cases as affecting the way in which the no-case to answer submission should be viewed, having in mind the apparent broad terms and wide scope of the charges brought, is the nature and extent of the liability created on an employer by s 15(1) of the Occupational Health and Safety Act . This was a recurring theme during the proceedings thus far and was highlighted in the submissions made on the no-case application, particularly those by the defendant that the relevant risk to safety here was created by a third party, Mr McGowan, and with no relevant failures by the defendant affecting the two officers' safety. I have earlier in these reasons touched upon this aspect. It was a matter, I have to say, which much troubled me in considering the charges as to whether indeed, consistent with Mr Hastings' general submission, they were capable of sustaining breaches of the section. I think it appropriate to recite the salient points of the debate which occurred with counsel in this respect because it is from that debate I have been assisted in deciding the issue by applying the matters discussed to the settled authorities. The relevant passages from the debate are as follows : HIS HONOUR : Perhaps it's a matter of degree. This is an area that I'm really troubled about, I have to say to both of you because where is the line drawn? One might say, having in mind quite apart from the terms of the Act, even the common law duty to provide a safe working environment, but let's forget that, looking at the strict terms of the Act, there seems to be at least an argument supporting the proposition that the employer must provide certain equipment to ensure safety. Perhaps that's right, but how far does one go? This is what is troubling me. Does one say that the employer has to provide helmets, shields, bullet proof vests, Glock pistols, immediate back up support and so on? It is that question of degree where I'm trying to balance the obligations cast by the section and particular circumstances.

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Secondly, the arguments advanced on behalf of the appellant in this respect erroneously concentrate upon the foreseeability of the particular circumstances of the accident in question. The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158-159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work. 19 Their Honours then referred to the earlier cited passages from the decision in Haynes v C I & D Manufacturing and concluded that it was "a correct statement of law and principle in relation to s 15 of the (Occupational Health and Safety) Act". I too, bound as I am to those Full Bench findings but with which I respectfully agree, will so approach the present matters. 20 From those authorities, I would draw the following propositions as to the now settled nature of the liability created by s 15(1) relevant to the instant cases - (1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain. (3) The duty so created is directed at obviating "risks" to safety at the workplace, even absent any actual incident causing injury; that is, where the circumstances create a potential danger to the health and safety of employees at the workplace. (4) The duty cast on an employer is both preventive and remedial in nature and is not necessarily satisfied by carrying out what ought be done by a reasonable or prudent person in the circumstances. (5) It is wrong in considering whether a breach has occurred to reason from the actual incident causing injury as the necessary detriment to safety as such an approach may well lead to a misunderstanding of the real facts on which a charge is based. (6) An incident itself causing injury may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment. (7) It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. (8) It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer. (9) The commission of an offence does not require the demonstration by the prosecutor that particular measures should have been taken to prevent the risk, although there can be no relevant failure by an employer in not taking steps to preclude a risk which was impossible to anticipate. (10) There is no warrant for limiting the detriments to safety contemplated by the statutory duty to those which are reasonably foreseeable. (11) Whilst relevant risks should not be merely speculative or unduly remote, measures which may have been taken to prevent any failure might be relevant to the statutory defence under s 53 that either, firstly, it was not "reasonably practicable" to have complied with the duty or, secondly, that the commission of the offence was due to causes beyond the control of the employer and against the happening of which it was impracticable to make provision. (12) The liability of an employer is to ensure that employees are not exposed to risks to health or safety while at work. The liability thus created according to the criminal standard of beyond a reasonable doubt makes out the offence; it is then for the defendant employer to prove to the civil standard on the probabilities the elements available under the s 53 defence. 21 The question before me at this stage whether the defendant has a case to answer in relation to the six charges is a pure question of law whether the defendant could be convicted on the evidence as it presently stands at the close of the prosecutor's case. The proposition was so stated unanimously by the High Court in May v O'Sullivan (92 CLR at pp 658-659), as follows : When, at the close of the case for the prosecution, a submission is made that there is "no case to answer", the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a "case to answer" has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end. After the prosecution has adduced evidence sufficient to support proof of the issue, the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact. In deciding this question it may in some cases be legitimate, as is pointed out in Wilson v Buttery (1926) SASR 150 for it to take into account the fact that the defendant has not given evidence as a consideration making the inference of guilt from the evidence for the prosecution less unsafe than it might otherwise possibly appear: cf Morgan v Babcock & Wilcox , per Isaacs J (1929) 43 CLR 163 at p 178. But to say this is a very different thing from saying that the onus of proof shifts. A magistrate who has decided that there is a "case to answer" may quite consistently, if no evidence is called for the defendant, refuse to convict on the evidence for the prosecution. The prosecution may have made "a prima facie case", but it does not follow that in the absence of a "satisfactory answer" the defendant should be convicted.

[116]

I should only make clear by adding my understanding, and I so approach the evidence for the purposes of the present no-case to answer application, that the standard of proof to be applied in considering such an application at the close of the prosecutor's case is proof beyond a reasonable doubt: see R v Murphy (1985) 63 ALR 53 at p 78 and Amalgamated Television Services Pty Ltd v Marsden [2001] NSWCA 32 in [32] and [34] per Ipp AJA, with whom Powell JA in [1] and Giles JA in [3] and [18] agreed. It is to be emphasised too that even if it were to be found that the defendant has a case to answer on any one or more of the present charges it still would be necessary at the close of all the evidence, if there be any called for the defendant, to determine the ultimate question of fact whether the prosecutor has established a case as to each charge according to the requisite criminal standard of beyond a reasonable doubt - that process could still result in one or more of the charges being found not proven even though the defendant be earlier found to have a case to answer: see Zanetti v Hill (108 CLR at p 442 per Kitto J). And, of course, that further process would enable consideration of any submission by the defendant on the evidence as it then stands relying on the s 53 statutory defence. 22 The general submission made by Mr Hastings on which his no-case application was based as to all charges was that the relevant risk to safety here was Mr McGowan over whose unpredictable and unlawful conduct the defendant had no control; and, so senior counsel submitted, there was no causal nexus of the defendant to the detriment to safety of the two officers. In my view, that submission cannot be sustained. Mr Hastings went further and submitted that the significance of Mr McGowan's role was such that there was nothing the defendant could have done to obviate the risk caused by Mr McGowan; as senior counsel said - "There is nothing to provide the employees with safety in those circumstances". Even given, which I think clearly was the case, that Mr McGowan presented as a risk to the officers' safety, that is not what any of the charges were directed to. The charges identified what were alleged to be risks existing to the safety of the two officers apart from the ultimate actions of Mr McGowan in causing their deaths. The answer to Mr Hastings' submission in this respect is simply that it concentrated on the incident itself, that is the fatal shooting of the two officers by Mr McGowan, rather than the situation in which the officers were placed while performing operational duties at the time and place of the incident in terms of risks to their health and safety occasioned by the particular detriments identified in each of the charges. In other words, the defendant's submission fell into the same vice by concentrating on the incident itself as the Full Court in Haynes v C I & D Manufacturing found occurred there at first instance. 23 I do not doubt, and neither do I think does the defendant, that police officers engaged on operational duties will be faced with risks to their safety. However, it is no answer to say, but as did Mr Hastings , that "the objective facts causing the detriment to safety were not the absence of speed loaders or a pistol or any deficiencies in the radio communication system or training, but the actions of McGowan, with which there was no causal connection to the employer" and "it is impossible to guarantee or to ensure the health and safety of police officers, and you can provide them with all the equipment under the sun short of an armoured vehicle and they will always be exposed to risk. Even if you did all the things that the prosecution has alleged were not done here … those things had absolutely no bearing on the safety of Senior Constable Spears because he was simply surprised and ambushed before any of these factors had any capacity to come into play". Workplaces in very many industries have the potential to be unsafe and, to meet that situation in the interests of the well-being of employees, the legislature has created the absolute duty on employers in s 15, subject to the s 53 defence, to ensure the health, safety and welfare of those employees at their place of work. A corresponding duty on employers, I might add, has been created by s 16 of the Occupational Health and Safety Act to ensure the health and safety of persons other than employees at the employer's place of work. The point may be made by reference to the following observations made by me as to building sites in Kirkby v A & M I Hanson (55 IR at pp 49-50) : I think it notorious that workplaces have the potential to be unsafe and building sites, by their inherent nature, are certainly no exception. It may be undoubted, it seems to me, that the legislature had that in mind in enacting the Occupational Health and Safety Act which, as its long title states, has the purpose "to secure the health, safety and welfare of persons at work"; the objects of that Act in s 5(1) emphasise the point. And, so, Div 1 - General Duties of Pt 3, which includes s 16(1), of the Occupational Health and Safety Act was passed to effect the apparent purpose by creating absolute obligations on the relevant persons to remedy and protect against the perceived mischief of risks to health, safety and welfare in the workplace. Section 16(1) forms part of that statutory purpose and, I think, represents an instance of the legislature's concern to improve safety in the working environment. The High Court (Mason, Wilson, Brennan and Dawson JJ, with whom Gibbs CJ agreed) observed in McLean v Tedman (1985) 155 CLR 306 at 313: "Accident prevention is unquestionably one of the modern responsibilities of an employer". The approach was furthered by Mason, Wilson and Dawson JJ when their Honours said in Bankstown Foundry Pty. Limited v Braistina (1986) 160 CLR 301 at 309: "In so far as legislative requirements touching industrial safety have become more demanding upon employers, this must have its impact on community expectations of the reasonably prudent employer."

[118]

That passage was applied by me in Boral Asphalt (98 IR at pp 252-253 in [18]-[19] and was cited with approval by Full Benches of the Court in Kennedy-Taylor (102 IR at p 67 in [33]) and in Mainbrace Constructions (102 IR at pp 97-98 in [60]). In light of the general submission so forcefully put by the defendant here, it is perhaps timely to repeat the following comments of Hill J in WorkCover Authority of New South Wales (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at p 85 : This case is yet another illustration of the need for employers to exercise abundant caution, maintain constant vigilance and take all practicable precautions to ensure safety in the workplace. It is essential that the approach should be a pro-active and not a re-active one; employers should be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare which may exist or occur from time to time in the workplace. 24 Although the defendant may not be able to "control", or otherwise affect, the conduct of persons such as Mr McGowan who confront police officers from time-to-time in the performance of their duties, the defendant is able to directly control and dictate the measures which should properly be made in preparing and equipping police officers to perform operational duties which are of such a nature as will ensure the health, safety and welfare of those officers. In the same way, and notwithstanding the submissions of Mr Hastings to the contrary, comparable steps should be taken by employers in satisfying the statutory duty in respect of their employees liable to the effects of unlawful action by criminals, such as, as identified by Mr Hastings , those employees engaged in "service stations, pharmacies, shops, banks, cash delivery, cigarette trucks, buses and taxis". In identifying those occupations, Mr Hastings submitted as to them that "there is a known history of violent and unlawful attacks by criminals, for which negligible precautions are provided by employers". Senior counsel added that in the emergency services (fire brigade, bush fire brigade and emergency services) the "employees are inevitably exposed to the risks of injury and death by the very nature of their duties" so that "employees are routinely exposed to the risk of, and suffer, the risk of injury and death from fire and flood, for which negligible precautions are taken". There is no evidence before me, I have to say, to support such a submission and, in any event, I would be most concerned that where employees are routinely exposed to risks to their safety that the employer concerned did not take the necessary steps to ensure their safety. The submission is no answer to the present charges. I reject it. 25 In final answer against Mr Hastings' general submission that the relevant risk here to the officers was Mr McGowan and not the detriments alleged in the prosecutor's summonses (and by way of introduction to a consideration of the individual charges as they concerned a speed loader, training in the use of the service revolver, the issue of a self-loading firearm handgun, tactics in high risk situations, communication equipment and training needs for operational duties), I think it helpful to have in mind the relevant relationship between the risk created by Mr McGowan and that allegedly created by the identified safety detriments. As Bauer J said in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 at p 257 : Whilst in the tragic circumstances where a person was killed in an accident it was natural to concentrate on the events giving rise to the actual cause of the death, such a concentration exhibits an error in law as was pointed out by the Full Court in the passage from C I & D Engineering (1994) 60 IR 149 at pp 157-159 previously quoted. The actual event of the accident and injury is relevant; but it goes to satisfy the evidentiary burden that failure gave rise to a risk to health, safety or welfare.

[119]

I state my respectful agreement with that comment and repeat my reasoning to a similar effect in Boral Asphalt (98 IR at p 250). The important distinction between the two sets of risks was considered by me in WorkCover Authority of New South Wales (Inspector McMartin) v Broken Hill Pty Co Ltd (1999) 96 IR 32 at pp 43-44 in the following way where a structure collapsed when it was struck with an industrial hammer : I accept (senior counsel's) submission that the causa causans of the accident was the use of the industrial hammer to strike the legs of the structure. However, that was only the immediate cause of the collapse and which cause could not have become operative without the defendant's failure to assess the stability of the structure on the day it was to be demolished and to provide adequate supervision to ensure the planned system was followed. Put another way, although the causa causans may seem innocuous enough, and as not involving very much culpability on the part of the defendant itself, the real failure here by the defendant to provide or maintain a safe system of work was the causa sine qua non being the preceding link in the chain of causation in failing to assess the structure's stability by adequate supervision at the time it was to be demolished; the failure to ensure work was not performed on the structure prior to the arrival of the mobile crane was contrary to the proposed method as originally planned. 26 It follows, I would conclude, that Mr Hastings ' general submission in avoidance of all of the charges, namely, that the relevant risk here was created externally from the defendant by the unpredictable and criminal conduct of Mr McGowan over which the defendant had no control, must fail. I accept as the correct approach that as stated by Mr Crawshaw , to the effect that any failure by the defendant here was its acts or omissions as alleged in each charge in circumstances where the relevant risks to the two officers' safety were not created by Mr McGowan but by the officers being required by the defendant to work in an environment where they were at risk of being shot or otherwise suffering physical harm. In other words, the risks faced by officers engaged on operational type duties were well known to the defendant, even though the specific risk of Mr McGowan may not have been known, and who was therefore responsible under s 15 for its failures in ensuring against those risks. I accept too the submission of Mr Crawshaw that there was no basis for Mr Hastings ' submission that the Occupational Health and Safety Act was not directed to risks created by the unlawful actions of a third party. After all, and as Mr Crawshaw said, that was especially the case with police officers whose main role was to deal with unlawful activity: see mission and functions of the Police Service of New South Wales in s 6 of the Police Service Act 1990. 27 It is necessary, then, to consider each of the charges in turn - initially as to whether there was any evidence that the defendant had failed in terms of the particulars as alleged in the charges and, if so, whether there was a causal relationship or nexus between that failure and the consequent risk to the safety of the two officers; that is, and as the Vice-President ( Walton J) observed in WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at p 253, "the alleged failure must cause the detriment to the safety (the risk) of the person concerned": see also WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) v Maitland City Council (1998) 83 IR 362 at p 377 per Hill J and WorkCover Authority of New South Wales (Inspector Clark) v Jabboury [2001] NSWIRComm 78 in [37] per Boland J. 28 Matter No IRC 5288 of 1997: The charge in this matter alleged the defendant failed to provide a speed loader for the use of Senior Constable Addison to reload his .38 Smith and Wesson service revolver with the consequence that on 9 July 1995 at the scene of the subject incident he was placed at risk of injury because of the additional time and difficulty required in reloading with the speed strip. The charge was limited to Senior Constable Addison, whose revolver was empty after he had discharged the six rounds available and had removed the speed strip from the "dump" pouch on his belt as part of the reloading process, whereas Senior Constable Spears was shot by Mr McGowan after discharging only two rounds from his service revolver with four live rounds still in the chamber. The evidence was that use of the speed strip to reload required about eight to ten seconds whereas the speed loader took half that time; also, there was an amount of evidence that the speed loader was superior to the speed strip in terms of difficulty in the reloading process, particularly as here in stress situations, for left-handed persons like Senior Constable Addison and during periods of darkness or in poor light. 29 Although, understandably, some slight differences appeared in the account of the facts as between the prosecutor and the defendant as to precisely what occurred at the time in question, the facts sufficiently appeared from the evidence of the neighbours who variously witnessed parts of the events. What is clear from the evidence is that - · Senior Constable Addison's revolver contained six live rounds on attending the scene. · There was an exchange of fire between Mr McGowan and the two officers when they were located near the police vehicle in the driveway of Mr McGowan's house. · After Senior Constable Spears was shot, Senior Constable Addison crossed the road and ran between two houses. · He then entered the back door of one house and asked to use a telephone but none was available. · He went outside and moved between the two houses to the front corner of one of them. · He exchanged more shots (at least two) with Mr McGowan. · He then retired to the rear of the house he had previously entered. · He then moved away from that house towards the house next door and to the front of the two houses but away from the side of the house. · He was holding a lighted torch in one hand and the revolver in the other hand. · Mr McGowan had moved to a position on the driver's side of the police vehicle towards the kerb and adopted a crouched position taking deliberate aim in the direction of Senior Constable Addison. · Mr McGowan then fired several more shots hitting Senior Constable Addison who fell to the ground fatally injured. · Shortly thereafter, Mr McGowan took his own life by shooting himself in the head with the rifle. · Senior Constable Addison's revolver, which was recovered from beside his body, contained six discharged cartridges; the "dump" pouch on his belt housing the speed strip was open but empty. · His speed strip containing six live rounds was found approximately six metres away from him near the rear corner of the house he had earlier entered. · In September 1992, following concerns expressed by the Police Association of New South Wales in relation to the effective reloading of firearms by police officers, a recommendation was made to the defendant that officers be permitted to purchase speed loaders at the officers' own expense. In 1994, the defendant authorised officers to so purchase speed loaders to replace the speed strips issued by the defendant. 30 Mr Hastings' submission was succinct - any officer reloading while exposed to fire was likely to be shot, and in the circumstances available to Senior Constable Addison to reload his revolver inside or at the rear of the house negated any time difference in loading with a speed strip rather than a speed loader - there was, therefore, no connection between the speed strip and the risk to which Senior Constable Addison was exposed. On the other hand, Mr Crawshaw put that the charge had been made out once Senior Constable Addison was required to reload after discharging the six rounds because "he was placed at risk of injury … and he was required to reload whilst in a high risk situation and under fire". Mr Crawshaw added that it was immaterial "whether Senior Constable Addison was shot at the actual point of reloading or immediately prior to or after commencing the process of unloading … he was placed at risk because of the equipment he had been provided with to load his weapon". 31 I am satisfied that there was some evidence which, if accepted, could support a finding that the defendant had failed to provide Senior Constable Addison with a speed loader being an available and more effectively superior method of reloading the issued service revolver. However, I am unable to find any evidence in the factual circumstances of this case, as outlined above, which could establish a causal connection between that failure by the defendant and the risk faced by Senior Constable Addison to his health and safety by being shot while he was engaged on the operation concerned. It is plain, it seems to me, that the risk faced by him during the time he was required to reload his revolver was obviated by the fact that he could have done so not at the front of the house when he was under fire but when he was at the rear of the house before becoming exposed. In any event, in the factual circumstances from the evidence, particularly having in mind that a period of about four to five seconds was required to reload using the speed loader, I do not consider it would have made any difference if indeed Senior Constable Addison had had the use of that facility. The prosecutor has failed to make out a case on this charge; it should be dismissed. 32 Matter No IRC 5291 of 1997: This charge was not limited to the reloading process but focused on the inadequacy of the issued .38 Smith and Wesson revolver, containing six rounds with a reloading capacity by the speed strip of a further six rounds, compared to the self-loading Glock pistol containing 15 rounds and which could be reloaded by simply replacing the spent magazine with another magazine containing 15 live rounds. The prosecutor relied on the circumstantial facts as specified earlier in relation to Matter No IRC 5288 of 1997 and similarly identified the relevant risk as Senior Constable Addison being "required to reload … in a situation of high risk, under fire, in the dark or low light, carrying a torch and under stress. If he had been supplied with a self-loading pistol there would have been no need to actually reload after exhausting the six bullets, whereas the evidence is clear that at the time he died Senior Constable Addison could not shoot again before reloading". Mr Hastings joined issue with that assessment and countered "that there is no evidence that the issue of a revolver to Senior Constable Addison rather than a pistol, increased the risk faced by him, or failed to decrease it". Senior counsel relied on the evidence as failing to establish a causal connection between the advantage of the self-loading pistol and the detriment facing Senior Constable Addison; any additional detriment was said by Mr Hastings not to have been brought about by the defendant but rather by the officer "identifying his location with the torch, and remaining exposed to fire. He had the opportunity to reload in safety but through his own actions left himself in danger". 33 Like the charge relating to the speed strip/speed loader issue, I cannot in the circumstances find evidence of a causal connection between the failure of the defendant to issue a Glock self-loading pistol and the risk faced here by Senior Constable Addison. One may accept, as the evidence showed, that the pistol is a superior weapon to the revolver; however, in my view and without more, a case for the defendant to answer the specific charge is not made out by a mere comparison of weapon superiority only - Mr McGowan had, for instance, superior fire power to the officers. The task in terms of the charge brought is whether the defendant's failure to issue Senior Constable Addison with a Glock pistol rather than the Smith and Wesson revolver caused the officer to be exposed to the risk of injury in the circumstances as they occurred. I do not think that that was so. As with the earlier charge, Senior Constable Addison could readily have reloaded his revolver at the rear of the house away from the line of fire from Mr McGowan; alternatively, on the facts, he could have retired to the rear of the house and stayed there or moved to a more advantageous position. By advancing to the front of the house with an unloaded weapon, whether a Glock pistol or a Smith and Wesson revolver, simply exposed himself to the risk of being shot. The defendant in that situation should not be found to have relevantly failed to supply a particular weapon because, I would conclude, it would have made no difference. It follows that this charge should be dismissed. 34 Matter No IRC 5722 of 1997: This charge alleged a failure by the defendant to ensure the health, safety and welfare of both Senior Constables Addison and Spears on 9 July 1995 at the scene of the incident by not providing adequate radio communication equipment. As a result, it was alleged the two officers were placed at the risk of injury. It is perhaps trite to do so, but I observe that for police officers engaged away from their station with the potential to be engaged, as here, on operational duties involves inherent risks to their safety. In that situation, and as Mr Crawshaw correctly submitted from the evidence : Communication is essential in a high-risk situation. Effective communication allows a Police officer to have the opportunity of calling for assistance, alerting others to imminent danger and having some form of control. Police performing duties in country areas are regularly placed in predicaments where they are a considerable distance from any assistance. If an officer is unable to communicate he or she is effectively on his or her own. If a Police Officer is able to communicate then he or she may have time and space to protect themselves and ultimately save their life or the life of a fellow officer or member of the public.

[120]

The alleged failure here of the defendant related to two categories of communication equipment available to the officers at the time, that is, the radio in the police vehicle and a portable radio. 35 The evidence concerning this charge was underpinned by general evidence that there were regular difficulties with radio communications in the Kempsey area, as including Crescent Head where the incident occurred. Those difficulties as to radios fitted in police vehicles involved from time-to-time unclear or scratchy reception, loud static, one-way transmission only and broken or interrupted transmissions, together with the delays occasioned by the need for messages to be repeated - the evidence as to radio communications involving Kempsey 2 (Senior Constables Addison's and Spears' vehicle), Kempsey Police Station, Port Macquarie Police Station and police cars in the area at the time in question on 9 July 1995 affirmed that general evidence. As to the use of portable radios, the general evidence was equally fulsome of their inadequacies on various occasions: receive but not transmit, fail to operate beyond 500 to 600 metres from Kempsey Police Station, fail to operate at all in the township of Crescent Head, only operate from elevated ground, and transmissions tended to be broken, irregular and unclear - the evidence showed that on 9 July 1995 a portable radio could not contact the command post established at the scene even though it was no more than 100 metres away and the other difficulties identified in the general evidence on this aspect existed. 36 The evidence directly relating to the radio communications equipment may be summarised as follows - · The four-wheel drive police vehicle was reverse parked in the driveway of Mr McGowan's house rather than on the street, presumably some indication that the officers intended arresting Mr McGowan and placing him in the rear of the vehicle through the back door. · The vehicle was fitted with a radio; the officers had a portable radio, but it is not known whether one of them took it on first leaving the vehicle. · Senior Constables Addison and Spears went to Mr McGowan's front door and were confronted by him holding a Ruger self-loading rifle and wearing a hessian smock. · The two officers retreated to the front of the police vehicle nearest the street and shielded on each side of and behind it in crouched down positions. · They called on Mr McGowan to drop the rifle. Mr McGowan fired a number of shots at the officers and they returned the fire. · Senior Constable Addison used the vehicle radio to contact Kempsey Police Station to report in words to the effect of "Kempsey 2. Urgent assistance. Person with rifle". This message was heard by the officer on duty at Kempsey Police Station but the transmission was unclear and affected by static. Thereupon, officers were despatched to proceed to Crescent Head to assist at the scene. · Kempsey Police Station attempted several times to contact Kempsey 2 on the radio but there was no reply. · Senior Constable Spears was fatally shot in the head by Mr McGowan and fell onto his back on the roadway. · Senior Constable Addison used the vehicle radio to advise Kempsey Police Station in words to the effect of "Kempsey 2. Urgent. Shots fired. Officer down." This message was not clear and was not heard by the officer in the radio room at Kempsey Police Station but by another officer as he was preparing to leave for Crescent Head. Kempsey Police Station was then advised by Port Macquarie Police Station of this message from Kempsey 2. · Kempsey Police Station asked Port Macquarie Police Station to assist by calling Kempsey 2 as it had difficulty itself in contacting and hearing Kempsey 2. Port Macquarie Police Station made a number of calls to Kempsey 2 but without success. · In the meantime, Senior Constable Addison left the police vehicle and ran across the road; the events which then occurred concerning him are as set out earlier in relation to Matter No IRC 5288 of 1997, including that Senior Constable Addison unsuccessfully sought at one of the houses to use a telephone. · Senior Constable Addison did not take the portable radio but left it on the dashboard of the vehicle. · Two police officers in a vehicle at Port Macquarie heard the transmissions from Kempsey 2 and responded by going to the scene at Crescent Head. So too did two officers who were performing duties in a vehicle in the area and immediately headed to Crescent Head. The transmissions from Kempsey 2 were heard also by Port Macquarie Police Station. · Once a command post was established at the scene at Crescent Head after the incident, Kempsey Police Station continued to experience problems in radio reception, such as wavering communications, static and interrupted or broken messages. Messages were relayed to Kempsey Police Station from the scene by Port Macquarie Police Station. The radio in Kempsey 2 was later that night heard to receive messages but it was difficult to hear what was said. 37 Mr Hastings' submission, as set out in more detail earlier, was effectively that there was "no evidence that the radio communication equipment provided to the officers increased the risk to them". I do not agree. It is true, as senior counsel emphasised, that on Senior Constable Addison radioing for assistance the messages were received and acted upon; the position with the portable radio was frustrated, in any event, by Senior Constable Addison himself in leaving the unit in the vehicle. However, I consider the following submission by Mr Crawshaw to be compelling in causally relating the defendant to the risk caused by the alleged inadequate radio communications: Without the means of communication there was no option but to commit. If he sees the opportunity he has to shoot. If he had a portable radio or other means of communication then he may have known that the other cars were close, he could then have kept the subject under observation and remained under cover himself whilst directing the cars to a safe approach with a view to isolating and containing McGowan. Without knowing whether his communication had been received and receiving a response then he had to take the subject on. Communication would have given him more options.

[121]

I need only add that there was evidence, particularly the lack of two-way dialogue with Kempsey Police Station, from which it may be inferred Senior Constable Addison considered himself to be devoid of communication; his endeavour to use a telephone in a house across the road may well be seen to manifest the isolated position in which he found himself and which caused him to deal with the situation by confronting Mr McGowan. 38 Given the difficulties experienced with radio communication equipment in the area, as confirmed by the evidence of its operation on the night in question, I am satisfied that evidence existed which could disclose conduct by the defendant to relevantly expose the officers to a risk to their safety in being unable to adequately communicate during an operational situation. The defendant has a case to answer on this charge. 39 Matter No IRC 5724 of 1997: The essential element of this charge was that the defendant failed to provide systems of work to ensure Senior Constables Addison and Spears as operational police officers received training prior to being placed on such duties; as a result of that failure it was alleged both officers were placed at risk of injury on 9 July 1995 at Crescent Head. The charge was further particularised as the defendant failing to assess the training needs of the officers, failing to ensure training available to other police officers was undertaken by them, failing to assess whether Senior Constable Addison needed training in the .38 Smith and Wesson six-shot revolver and failing to ensure he had carried out such training after not having used and/or been trained in that weapon for a lengthy period of time. 40 The position taken by Mr Hastings was that both Senior Constables Addison and Spears had been engaged on operational duties for many years before their transfer to Kempsey. In effect, senior counsel's submission was that both officers did not need retraining in operational duties prior to their transfer and, if anything, the duties at Kempsey were less demanding than their earlier roles. Mr Crawshaw , on the other hand, pointed out that it was not alleged the two officers were not on operational duties prior to their transfer to Kempsey but rather they had not received mandatory training prior thereto. Specifically, the training not afforded to them included weapons handling, tactics in high-risk situations, method of approach to buildings, concealment and the use of lights and torches; such training was highly relevant to the operational duties performed by the two officers at Crescent Head on 9 July 1995 and by not receiving it they were thereby placed at risk of injury. 41 It is true from the evidence that the two officers had for some years been engaged in operational duties and, to that extent, had received appropriate training and experience in various postings. Nevertheless, the evidence disclosed that training in its various facets was a developing feature of the requirements for police officers and mandatory training at various points in an officer's career occurred to refresh and acquaint them in new techniques, such as in high-risk situations, defensive tactics, approach to buildings and concealment - those latter aspects, on the evidence, were of particular significance in the circumstances of the present incident. Whilst both officers had some years earlier received training in those areas they had not received up-to-date training. For instance, Senior Constable Spears did not undertake defensive tactics training in 1994 due to injury and being engaged on restricted duties; although he was scheduled to undertake survival training in February 1995 he did not do so as he was transferred to Kempsey in the meantime. As to Senior Constable Addison, he had not received recent dry fire training (nor any training in the use of the six-shot Smith and Wesson revolver having until some few weeks previously used a five-shot Smith and Wesson revolver during his service) and training in defensive tactics as he had not worked in general policing duties since 1983 when he received criminal investigation training. There was, therefore, evidence which could be found to support the proposition that neither officer had in fact received up-to-date training in subject matters relevant to high-risk operational situations. 42 However, the charge here alleged the defendant failed "to provide systems" to assess the training needs of the officers before being placed on operational duties and failed "to provide systems" to ensure such available training was undertaken before operational duties were allocated to them. In other words, the charge did not refer to an alleged failure of the defendant to actually provide the appropriate training as would ensure the officers' safety but only to a failure to provide systems in that respect. This may be seen to be a somewhat strict way in which to view the subject charge, but, in my view, in a criminal matter such as this that is the only proper way to do so. 43 I am unable to see any evidence which attended to the issue of the charge, that is, the defendant's failure to provide systems concerning the assessment of the training needs of the two officers. Very detailed and comprehensive systems may well have existed and I am unable to speculate to the contrary. Therefore, I conclude there is no case to answer and this charge should be dismissed. 44 Matters Nos IRC 5290 and 5721 of 1997: These two charges may, as did the parties, be considered together. Both concerned aspects of the training of Senior Constables Addison and Spears as being causally related to the alleged risks to safety faced by them at Crescent Head on 9 July 1995. Mr Hastings resisted these charges by his general submission, which I have disallowed, that the relevant risk to safety was not any failure by the defendant in the provision of training but only that created by Mr McGowan over whom the defendant had no control. Senior counsel, as indicated earlier, conceded nevertheless that it was difficult to say there was no evidence that training would not have made any difference. It becomes necessary, therefore, to consider the elements of each of these two charges as to the causal connection of the alleged failures as to training with what occurred on 9 July 1995. 45 It was alleged in Matter No IRC 5290 of 1997 that the defendant failed to provide Senior Constables Addison and Spears with sufficient training in the use of the .38 Smith and Wesson service revolver so that they thereby were placed at risk of injury. The evidence on this aspect was quite sparse and, I have to say, somewhat disjointed. I do not think it was capable of supporting the charges made and particularised. The facts providing the context in which it should be considered have been set out earlier in relation to Matter No IRC 5288 of 1997 (the speed loader charge) and need not be repeated - like the reasoning as to that charge leading to the conclusion that there was no causal connection of the defendant with the risk faced in the circumstances as they occurred, I similarly find as to this charge that the prosecutor has not made out a case. The charge should be dismissed. 46 As to Matter No IRC 5721 of 1997, it was alleged the defendant failed to provide a safe working environment for Senior Constables Addison and Spears in a number of respects, namely - · training which addressed in a practical way the tactics to be employed in high-risk situations; · systems to monitor and enforce the training available to police officers; and · mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communications.

WorkCover Authority of New South Wales (Inspector Keelty) v Crown in Right of the State of New South Wales

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Judgment (124 paragraphs)

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Legislation Cited (1)

Cases Cited (31)

Cited By (5)