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

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

PROSECUTOR Mr S Crawshaw SC and Ms L McManus of counsel Solicitor: Mr G McCann WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr P S Hastings QC and Mr G J Willis of counsel Solicitor: Mr M N Holmes Police Service of New South Wales

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.

The two officers then left the complainant's house where they had spoken to and taken details of the complaint and headed to McGowan's house. They parked the four wheel drive vehicle, reversed into McGowan's driveway - and there may be some significance about that because it seems to be an indication that they may have anticipated taking him into custody and had the vehicle placed strategically with the back door nearest the house so he could be put into the van most easily rather than leaving it in the street which would be further away.

What happened next is not entirely clear, … it seems there was some form of altercation initially occurred between the two officers and McGowan. At some point or other he has produced a weapon and the two officers have retreated for safety to the front of the police vehicle parked in the driveway. It seems then that McGowan then commenced to fire a number of shots at them while they were in this position sheltering behind the front of the vehicle which, of course, was furtherest from the house because it had been reversed in. It also seems to be that the police officers returned fire while in that position.

… At some point Senior Constable Addison gained access to the radio in the vehicle and sent off two messages which were received, one indicating they were in trouble and the second indicating an officer was down, which were received in various places and which will become the subject of more particular evidence in due course. Secondly, what happened in the middle of all that was Senior Constable Spears was shot in the head and fell out the front of the vehicle on the road way, …

What is also clear is thereafter Senior Constable Addison retreated across the road way between two houses, numbers 13 and 15 of Walker Street, and entered number 15 I think in an endeavour to find a telephone which was unsuccessful. He then left the rear of those premises and came down between those two houses, 13 and 15, which were the premises opposite that in which McGowan was. It was then that Senior Constable Addison had a torch in his right hand and his weapon in his left because he was left handed. There was an exchange of shots. One witness describes the torch as actually shining on McGowan, who was crouched in a firing position alongside the driver's door, it would be the driver's door of the police vehicle. He had come from the house towards the police vehicle and was crouched on the ground and in a shooting position on the lawn firing at Senior Constable Addison who was across the road. Addison, it seems, at some point had his torch shined on McGowan, which was an unfortunate thing, but perhaps not depending on what the facts alleged are. What seems clear from another witness is Senior Constable Addison may then have emptied his weapon and retreated back towards the rear of the house from which he has just come.

… He then seems to have gone backwards into the dark, and for reasons which are not clear, came forward again presumably with his gun empty but with his torch in his hand shining it across the road, and it seems at that point, I assume the case will be, McGowan shot him.

In fact what happened was McGowan, within a short period of time, took himself around the far side of the police vehicle, said something, and then shot himself unbeknownst to everybody else, the neighbours who were there at the time and the police who attended the scene shortly after because, for some hours, a stand off occurred because it was not known where McGowan was, and it wasn't until daylight someone observed what seemed to be his body on the lawn and finally it was revealed that he in fact was deceased. 3 Although all charges alleged a breach of s 15(1) of the Occupational Health and Safety Act in that on the relevant date the defendant failed to ensure the health, safety and welfare at work of all its employees, and in particular Senior Constable Peter Addison and Senior Constable Robert Spears, the respective charges related to separately defined ways in which contraventions of the section were said to have been committed and even though each charge arose out of the same incident on 9 July 1995. No issue arose in relation to this aspect, no doubt having in mind the terms of s 49A(1) of the Occupational Health and Safety Act which provides that "more than one contravention of section 15 … by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences". Nevertheless, it is necessary to state with precision the terms, including the particulars thereof, of each charge laid, as follows : Matter No IRC 5288 of 1997 (the speed loader charge)

On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constable Peter Addison, in failing to provide speed loaders for use with the .38 Smith and Wesson revolvers, as may be necessary, to ensure the health and safety of employees at work, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted.

a) at all material times the defendant employed Senior Constable Peter Addison;

b) failing to provide a speed loader that contained six rounds of ammunition which allowed for the ammunition to be loaded directly into the service revolver;

c) as a result of the said failures, Senior Constable Addison was placed at risk of injury;

d) Senior Constable Addison suffered fatal injury. Matter No IRC 5290 of 1997 (the sufficiency of training in use of the service revolver charge)

On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constables, Peter Addison and Robert Spears, in failing to provide such training, as may be necessary, to ensure the health and safety of employees at work, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted.

a) at all material times the defendant employed Senior Constables, Peter Addison and Robert Spears;

b) failing to provide sufficient training, in the use of the service revolver, as may be necessary, to ensure the health and safety of employees at work;

c) as a result of the said failures, Senior Constables Addison and Spears were both placed at risk of injury;

d) Senior Constable Addison and Spears suffered fatal injuries. Matter No IRC 5291 of 1997 (the inadequacy of the service revolver compared to the self-loading pistol charge)

On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constable Peter Addison, in failing to provide plant, to wit, adequate firearms, as may be necessary, to ensure the health and safety of employees at work, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted.

a) at all material times the defendant employed Senior Constable Peter Addison;

b) failing to provide a self loading firearm handgun with magazine;

c) as a result of the said failures, Senior Constable Addison was placed at risk of injury;

d) Senior Constable Addison suffered fatal injury. Matter No IRC 5721 of 1997 (the training in tactics to be employed in high risk situations charge)

On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constables, Peter Addison and Robert Spears, in failing to provide a safe working environment for its employees that is safe and without risk to health, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted.

a) at all material times the defendant employed Senior Constables, Peter Addison and Robert Spears;

b) failing to provide training, to wit, the content of which addressed in a practical way the tactics to be employed in high risk situations;

c) failing to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available;

d) failing to ensure that mandatory training in the use and reloading of weapons, use of torches, defensive tactics and communication was undertaken;

e) as a result of the said failure, Senior Constables Addison and Spears were both placed at risk of injury;

f) Senior Constable Addison and Spears suffered fatal injuries. Matter No IRC 5722 of 1997 (the adequacy of communication equipment charge)

On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constables, Peter Addison and Robert Spears, in failing to provide plant, to wit, adequate communication equipment, to ensure the health and safety of employees at work, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted.

a) at all material times the defendant employed Senior Constables, Peter Addison and Robert Spears;

b) failing to provide adequate radio communication equipment for operational police within Crescent Head;

c) as a result of the said failures, Senior Constables Addison and Spears were both placed at risk of injury;

d) Senior Constable Addison and Spears suffered fatal injuries. Matter No IRC 5724 of 1997 (the systems and training in operational duties charge)

On 9 July 1995, at Walker Street, Crescent Head, in the State of New South Wales, the defendant, being an employer, did fail to ensure the health, safety and welfare, at work, of all its employees in particular, Senior Constables Peter Addison and Robert Spears, in failing to provide systems of work that are safe and without risk to health, to wit, systems to ensure operational police receive training prior to being placed on operational duties, to ensure the health and safety of employees at work, contrary to section 15(1) of the Occupational Health and Safety Act, in such case made and provided and pursuant to section 49(4) of the Occupational Health and Safety Act, proceedings are now instituted.

a) at all material times the defendant employed Senior Constables, Peter Addison and Robert Spears;

b) failing to provide systems to assess training needs of police before police are placed on operational duties;

c) failing to provide systems to ensure that training available to police officers is undertaken by such officers prior to being placed on operational duties;

d) as a result of the said failure, Senior Constables Addison and Spears were both placed at risk of injury;

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.

"Plant" is defined in s 4(1) of the statute as including "any … equipment … ."

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.

… the Act is not directed to the responsibilities of employers to control risks created by the unpredictable and unlawful actions of third parties (or acts of God). The Act is directed to the elimination of risks created by the system of "work" of the employer.

The reported cases all deal with risks to safety arising from the internal systems of employers.

It is inherently implausible that an employer should be criminally liable for the consequences of criminal actions of a third party over whom they have no control.

During the hearing, and in consequence of Mr Hastings' submission that the relevant risk here was created by the acts of Mr McGowan, the following debate with senior counsel ensued : HIS HONOUR : In the performance of a police officer's duties they will, no doubt, from time to time, be confronted by the McGowans of this world. But is it not proper to consider, in terms of ensuring the officers' safety, that the employer, with that knowledge of the risks faced by an operational officer, does something by way of the provision of appropriate training, equipment and so on, in order to obviate the risk which is caused by the McGowans of this world?

HASTINGS : I don't want to play on words but there is nothing that the defendant can do to obviate the risk. There is no way in the world one could have removed the risk created by McGowan, short of sending them up in an armoured vehicle, I suppose, or some other extraordinary operation which would be totally inaccessible and impractical. There is nothing to provide the employees with safety in those circumstances.

I will come to this later in the submission but it is not just the police service confronted with this situation. Other organisations who deal with emergencies, which provide risk to the safety of employees, face the same situation. A fireman, for example is sent into a fire or to deal with a fire in circumstances where inevitably they are put at risk and there is no way that person can do his job in a circumstance which is safe.

Employees of the New South Wales Bushfire Brigade, for example, the two people killed last year at Mt Colah or wherever it was, there is no way employees of that organisation can carry out a job which is safe.

HIS HONOUR : Just assume for the moment that the fire brigades did not provide appropriate protective equipment; would that be a relevant detriment to safety? Or if the fire brigades, for example, just recruited people and sent them in to fight a fire without helmets and oxygen masks, fireproof jackets and no training, would that be a detriment to their safety?

HASTINGS : Well, there must be an extreme at which that can occur, but in a relatively normal situation, where the person is an experienced employee, and trained, and then sent out to deal with a fire, with all the training in the world and all the equipment in the world, he is still exposed to a risk to his safety.

The point of that is when one goes to each of these tests to which I have referred, by whatever formulation you use, the answer is the situation of danger is not created by the systems of the employer. It is created by an act of God or the McGowans of this world, who is out there lurking unknown to the employer, to create a situation of risk. 8 The approach so adopted by the defendant was said to be supported by the authorities and Mr Hastings in that respect referred to the judgment of Fisher P in Cullen v State Rail Authority (NSW) [1989] 31 IR 207 at pp 210-211 and to the reasoning of the Full Court ( Bauer, Hungerford and Cullen JJ) of the former Industrial Court in Haynes v C I & D Manufacturing Pty Ltd (1994) 60 IR 149 at pp 157-159. The application of the law so referred to led, so Mr Hastings submitted, to various alternatives in the formulation of the test, as follows - · Would the act or omission alleged in each summons have ensured the health, safety and welfare at work of the officers? · Would the act or omission have provided plant or systems of work that were safe and without risks to health? · Did the acts or omissions alleged create a situation of potential danger to the health or safety of the officers? · What were the objective facts causing detriment to safety and was there a causal connection therewith of the employer? · Has the prosecution proved beyond reasonable doubt that the events were caused by the failure of the employer and not some other unrelated factor?

In submitting that the prosecutor had failed to meet the test, whatever formulation was adopted, Mr Hastings in his written outline of argument summarised the general defects in the summonses thus : (a) the provision of speed loaders, pistols, an improved radio communication system or improved training would not have ensured the health and safety of the officers;

(b) the provision of speed loaders, pistols, an improved radio communication system or improved training would not have provided plant or systems of work that were safe and without risks to health;

(c) the circumstances were not such that the lack of speed loaders or pistols or any shortcomings in the radio communication system or training created a situation of potential danger to the health and safety of the officers;

(d) 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;

(e) there is a real doubt as to whether the events were caused by any failure of the employer to provide speed loaders, pistols, an improved radio communication system or training, but by the actions of McGowan. 9 Apart from the general defects referred to above, Mr Hastings identified the following particular deficiencies in respect of four of the individual summonses : The speed loader charge - IRC97/5288

The allegation is that the absence of a speed loader increased the time to reload a revolver, particularly in a situation such as this where Senior Constable Addison was required to reload "while in a higher risk situation and under fire" ... It is submitted that this case failed because any officer reloading while exposed to fire is likely to be shot. In the circumstances available to Senior Constable Addison of reloading while inside or behind the premises at 15 Walker Street, any time difference in loading with a speed strip had no connection with the degree of risk to which he was exposed.

The adequacy of the service revolver compared to the self-loading pistol charge - IRC97/5291

Similarly it is submitted 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. There is no causal connection between the advantage of the self loading pistol and the detriment facing Senior Constable Addison. The additional detriment, on top of the risk created by the actions of McGowan, was caused by Addison himself 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.

The adequacy of communication equipment charge - IRC97/5722

There is no evidence that the radio communication equipment provided to the officers increased the risk to them. They were able to transmit messages requesting assistance which were received and acted upon instantly. They did not hear the acknowledgements on the mobile equipment in the motor vehicle because of any deficiency in the system but because Senior Constable Spears had already been shot and Senior Constable Addison had moved away from the vehicle. Any capacity for contact to be made by portable radio was frustrated by the actions of Senior Constable Addison himself, in leaving the portable unit in the motor vehicle.

The systems and training in operational duties charge - IRC97/5724

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.

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

18. The defendant's submission concentrates entirely on the difference in time between a speedstrip and speedloader. This ignores the fact that in a high risk situation where split seconds can lead to injury or death, any time difference is time in which the police officer is not able to shoot thus increasing the likelihood of the police officer being shot.

19. Moreover, the prosecution alleges that the failure to provide a speed loader which allowed for the ammunition to be loaded directly into the service revolver placed Senior Constable Addison at risk of injury not only because it increased the time taken to unload and load the revolver but also because it increased the difficulty in unloading and reloading the revolver.

20. There can be no doubt on the evidence that the speed strip is a slower method of unloading and reloading than a speed loader and that it is more difficult to unload and reload a speedstrip than a speed loader. Moreover, it is even more difficult to unload and reload a speed strip for a left handed person, for a person holding a torch in one hand, in poor light and under stress.

21. Therefore by the defendant not providing Senior Constable Addison with a superior method of unloading and reloading his weapon Senior Constable Addison was placed at risk of being shot. The defendant's act or omission in failing to provide Senior Constable Addison with a speed loader created a situation of potential danger to Senior Constable Addison in that he was placed at risk of injury once the six bullets in his weapon had been fired and he was required to reload whilst in a high risk situation and under fire.

25. Irrespective of whether Senior Constable Addison was shot at the actual point of reloading or immediately prior to or after commencing the process of unloading (by disengaging his spare ammunition) he was placed at risk because of the equipment he had been provided with to load his weapon. The evidence shows that when he was required to reload it was in a situation of high risk, under fire, and under stress. The adequacy of the service revolver compared to the self-loading pistol charge - IRC97/5291

33. In this summons the prosecution alleges that the defendant failed to ensure the health and safety at work of Senior Constable Peter Addison in that it failed to provide adequate firearms, namely a self loading firearm with magazine.

34. This charge is not limited to the reloading. As particularised the Prosecution alleges that the failure to provide the officer with a self-loading firearm with magazine placed him at risk of injury in that it increased the frequency, time taken and difficulty in unloading and reloading his firearm; and it decreased the effectiveness of aim and handling. Therefore this decreased his capacity to use the firearm or use the firearm effectively in an environment where Senior Constable Addison was exposed to the risk of being shot.

38. In addition the .38 Smith and Wesson was an inadequate firearm in that the self loading pistol would have given Senior Constable Addison additional ammunition without the need to reload as frequently. If the need arose to reload the self loading firearm handgun this could be done in a simple and safe manner. When reloading the self loading firearm handgun Senior Constable Addison could have maintained vision with the target at all times.

40. As stated in IRC 5288 of 1997 above the evidence is inconclusive about whether Senior Constable Addison was actually reloading at the time that he was shot. Irrespective of whether Senior Constable Addison was shot at the actual point of reloading or immediately prior to or after commencing the process of unloading (by disengaging his spare ammunition) he was placed at risk because of the equipment he had been provided with to load his weapon. The evidence shows that when he was required to reload it was 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.

The adequacy of communication equipment charge - IRC97/5722

43. Radio communications equipment was inadequate in a number of respects on the night of the shooting. These inadequacies related to two broad categories: (i) Communications between Kempsey Police Station and the police radio in Kempsey 2. (ii) The portable radios available for use.

44. Senior Constables Addison and Spears were placed at risk of injury in that they could not communicate with other officers and vice versa. Therefore this decreased the options available to the officers and decreased access to information, assistance and advice in an environment where Senior Constables Addison and Spears were at risk of physical harm. This created a working environment in which there was a greater risk of physical harm. The systems and training in operational duties charge - IRC97/5724

54. The prosecution alleges that the defendant failed to ensure the health and safety at work of Senior Constables Addison and Spears in that it failed to provide systems of work to ensure operational police receive training prior to being placed on operational duties.

56. Contrary to what is suggested by the defendant, the Prosecution is not alleging that the officers were not on operational duties prior to their transfer to Kempsey. The prosecution alleges that the defendant failed to provide systems of work to ensure operational police received mandatory training prior to being placed on operational duties at Kempsey. Both officers had been transferred from different areas and had both had failed to attend mandatory training. This transfer was a critical point in time which provided an opportunity for the defendant to check what training had been carried out, especially in the circumstances of evidence as to lack of uniformity of training between country and metropolitan areas.

57. As a result of the failure to assess the training needs of the employees or to ensure they received the training that they had missed, the employees were placed at risk in performing their operational duties on the night of the shootings when they had not been afforded all the training available. The training they had missed addressed subjects such as weapons handling, high risk situations, approach to buildings, concealment and use of light and torches. Such training was highly relevant to the operational duties performed by the police officers on the night of the shootings and their missing of the training placed them at risk.

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.

HASTINGS : I understand what your Honour is wrestling with and it is something which troubles us as well and it seems to be the problem underlying our debate, and that is that it recognises that, really, 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; equip them with speed loaders, given them Glocks, training, whatever, radios, it would not have stopped Senior Constable Spears being shot, leaving Senior Constable Addison out of it for a moment. All of 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.

HIS HONOUR : I suppose the best answer to the question is one shouldn't try and philosophise too much on the generality because that makes the question very difficult to answer. One should perhaps concentrate on the facts of the particular case and let the matter develop case after case after case. Perhaps I'm trying to philosophise too much in raising these points with you, but they are troubling me because they tend to arise in this situation. I mean, you could have a situation, for example, where a police officer was called out, as these officers were, and they backed the wagon into the driveway and, as they were getting out, one of them was shot without anything, you know, before they even go to the front door, or you would have a police officer walking along the street and someone just fires and kills them.

HASTINGS: In Senior Constable Spears' case it is not far removed from that. He really had no opportunity to take any precautions once he was surprised by McGowan appearing at the door with the weapon.

HIS HONOUR : I'm mentioning these perhaps extreme situations in order to try to come to grips in some way with trying to define where a line should be drawn that the defendant has obligations in relation to safety, but in a particular situation where does one draw that line. That is the difficulty I'm having.

HASTINGS : It would be suitable to us if your Honour were not to engage in a philosophical debate. We would be happy if your Honour simply applies the tested formula which has been identified and approved in many cases, particularly the passages in Haynes case. If you apply that formula it simply does not attract liability to the employer in this case.

HASTINGS: The question of whether the acts or omissions of the employer created a situation of potential danger.

HASTINGS : Yes. Answer no. The situation of potential danger was created by McGowan …

CRAWSHAW : The only other matter I wanted to address was the question your Honour thought should have asked me. I can characterise it as amounting to how broad is potential risk or how broad is potential danger. One thing we do agree with my friend on is that you should apply Haynes. We say that is the appropriate test. That test in itself embraces the concept of potential danger and potential risk.

HIS HONOUR : I think Haynes, when it was decided in 1994, said what had been said in earlier authorities over a time of years, about a decade or so, that is what it really did.

CRAWSHAW : I think it's true to say that the terminology in some of the earlier authorities was confusing, and it might be WorkCover's fault in a sense because most of the cases that were brought and, indeed, no doubt are still brought to the Commission are offences that arise in the context of an accident or injury or death, and the simple fact of the matter is it's normally those circumstances where WorkCover is alerted to the breach of the Act. So, it was understandable in those circumstances that some judgments concentrated on the connection between the failure and the accident, it not being particularly an issue in those cases, but it's clear from Haynes and other judgments before it, indeed other judgments since, that the real test is looking at whether there is the detriment to safety, not whether there is an accident or injury.

HIS HONOUR : I think one can pick up from some of the earlier cases perhaps before Haynes where prosecutions have been brought. I think Waugh is probably an example of it, where a particular risk to safety was identified and the inspector required exercising his powers under the Act the employer to correct it as it happened the employer. As it happened an accident occurred some short time later and the employer was prosecuted for the relevant detriment to safety arising out of the fact of that accident; the prosecution wasn't earlier brought. So, perhaps what's happened is that where detriments to safety occur, it is an educative process adopted by WorkCover where they issue notices for correction and stop work and so on, but where that opportunity is not properly received by the employer and something happens, then the sanction of prosecution is used.

CRAWSHAW : For whatever reason, they are the sorts of cases that came and, therefore, there was an understanding, maybe there may be understandable conclusion but, in any event, we are agreed on the test in Haynes applying.

As we said in our opening argument on the summonses, despite the defence agreeing on that, their concentration in argument on the facts is all about whether there was the relevant connection with the actual deaths in this case, and that is why we keep hearing about the risk posed by McGowan being current. My friend says we have said ignore McGowan. We say, in the context of looking at this failure the relevant failure of the employee, the act or omission has nothing to do with Mr McGowan, it's failing to do whatever is specified in the summons, in a situation where they are sending police officers into a working environment where there is the risk of being shot or incurring physical harm.

That doesn't mean that you ignore what happened with McGowan on the night for working out whether there is a causal connection with detriment to safety or at the very least potential risk. Obviously these cases are based and pleaded on the failure having a connection with detriment to safety or at least in the sense of potential risk, on the day and night in question, and for those circumstances you have obviously got to look at the actions of McGowan to see whether the failure had a relevant connection with detriment to safety.

So, in that sense, your Honour's questions about whether there is an offence committed in relation to all police officers in sending them out in similar circumstances, we would say the failure is there but, in terms of section 15, we would be hard put to say there was the relevant detriment to safety and they weren't actually encountering a situation where they were under fire. The point of this case is they were under fire and that is why the relevant causal connection is established and why there is at least potential risk, if not an actual causal connection between the failure and the deaths of the two constables.

You will notice in the first two charges we haven't even particularised Senior Constable Spears. The summons in relation to the weapons charges relates to Senior Constable Addison. The difference between Senior Constable Spears and Addison was that Senior Constable Addison reached a point where his six bullets were used. So not only were we restricting the situation of detriment to safety to the police being under fire, but in the case of the weapons charges, we are restricting it to the situation where the policeman was under fire and his six bullets had expired and, with all due respect to my friend's submission, one can't call that a hypothetical or abstract situation. 16 No doubt the nature of the difficulties so posed by these present prosecutions will be obvious from the above instructive and very helpful debate with counsel. However, what does emerge as common ground, I think, as to the way in which the charges here under s 15(1) should be viewed are two propositions, namely - (i) the proper approach in terms of principle is that stated in Haynes v C I & D Manufacturing ; and, (ii) in applying that appropriate test, attention is to be directed to the precise terms of the charges brought by reference to the circumstances disclosed by the evidence concerning the particular incident in question which gave rise to each charge.

I propose to so consider the no-case to answer submission. 17 The relevant passages referred to by both Mr Hastings and Mr Crawshaw from Haynes v C I & D Manufacturing (60 IR at pp 157-159) were : … Her Honour focused attention on the accident itself, that is the front end loader hitting Mr Chen, as the relevant detriment to safety with which the respondents were charged. We think that approach emphasised too much the accident itself as the relevant detriment to safety of persons on the site. That overemphasis led to a misunderstanding by her Honour of the real facts disclosed by the circumstantial evidence and the proper inferences to be objectively drawn therefrom.

Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o secure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. …

… The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself 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; but, it seems to us, 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. … 18 The nature of the liability under s 15(1) of the Occupational Health and Safety Act has been attended to in many later decisions, both at first instance and on appeal. For instance, in Drake Industrial (90 IR at pp 449-452) a Full Bench ( Wright J, President and Walton J, Vice-President, Peterson J agreeing) reviewed the earlier authorities and reasoned : This court and its predecessors have frequently emphasised the breadth of the duty imposed by s15(1) of the OH&S Act: see, for example, WorkCover Authority of NSW (Inspector Piggott) v Capral Aluminium Ltd (1998) 82 IR 468 at 478 and WorkCover Authority of NSW (Inspector Egan) v ATCO Controls Pty Ltd (1998) 82 IR 80 at 85. The duty imposed by s15(1) on employers to ensure the health, safety and welfare at work of all their employees is an absolute duty. In Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at 469-470, Watson J said: "I am satisfied that the legislative intention contained in the new Occupational Health and Safety Act 1983, is quite clear.

Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the Industrial Safety, Health and Welfare Act 1972 (SA), where in reg 4 the phraseology used is 'shall take all reasonable precautions to ensure' (see Smith v Elliott Bros (1980) 26 SASR 138). ...

In their context and purpose, there would appear to be no reason to make any implication that the words 'to ensure' are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain."

See also Italo Constructions Pty Ltd v Parkes [1988] 24 IR 428. The duty created by s15(1) is not necessarily satisfied by the carrying out of what ought be done by a reasonable or prudent person in the circumstances.

However, a number of decisions of the Court have demonstrated, appropriately in our view, that the mere occurrence of an accident causing injury to employees of the defendant is not sufficient in itself to prove the commission of an offence under s15(1). It is necessary to establish both a relevant "failure" on the part of the employer and a causal relationship between the conduct of the defendant and the consequent risk to the health, safety or welfare of its employees. In the judgment of Fisher CJ in Cullen v State Rail Authority (NSW) [1989] 31 IR 207 at 209, his Honour observed: "In Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467, it was held that s 15(1) of the Act created an absolute liability in employers to conform with the terms of the section, but it is still necessary to prove that the employer failed in the language of the section in at least one of the many obligations laid upon him. It is correct to say that this failure is not the same as a failure of a duty to take care at common law where the standard of the duty is that of the reasonable and prudent man. Here, the standard is absolute. If there is a failure, subject to s 53 of the Act, however understandable the failure might be, liability is absolute."

His Honour also emphasised that: "In circumstances where it is surpassingly obvious that the elements of a safe system of work were not being observed, there is nevertheless a criminal onus upon the prosecution to prove the employer's failure. If at the end of the evidence there is any doubt raised as to whether the events were caused by the failure of the employer or some other unrelated factor, then the employer is entitled to the benefit of that doubt. Here it seems impossible to overlook the possibility that in his familiarity with his employment, the deceased was disregarding what he had been taught about safe clearances, about power outages and about the use of ropes and equipment in order to get the job over and done with. These matters do not have to be proved in an affirmative way so as to displace the prosecution's case. What has to be done is to raise a reasonable doubt as to the proof of the case alleged."

His Honour's approach has been followed and applied in subsequent decisions. In State Rail Authority v Dawson [1990] 37 IR 110 at 120-121, for instance, the Full Bench (McMahon DP, Hill and Hungerford JJ) stated: "Although s 15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. In other words, the mere fact that an accident occurs involving an employee, but without more, does not establish any liability in the employer; and that is so unless some causal nexus be established between the breach of statutory duty and the detriment occasioned to the employee. We agree in that respect with the observations by Grove J. in McMartin v. Broken Hill Proprietary Co Ltd (1988) 100 IR 241 to the effect that 'it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety'."

See also Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 49-50; Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 156; Rech v F M Hire Pty Ltd (1998) 83 IR 293 at 316-317; WorkCover Authority of NSW v Maitland City Council (1998) 83 IR 362 at 377; WorkCover Authority of NSW (Inspector Schultz) v Pioneer Road Services Pty Ltd (unreported, Marks J, IRC97/4274, 2 September 1998).

However, it is important not to misunderstand the requirement that the prosecutor establish a relevant "failure" on the part of the employer as an essential element of the offence. Proof of the commission of an offence does not require a demonstration that particular measures should have been taken to prevent the risk. Rather, it is sufficient either to show how the employer failed to provide for the health and safety of its employees or to prove the objective facts causing the detriment to safety and the causal connection to the employer's acts or omissions: see WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119. Measures which may have been taken to prevent any failure are matters which might be relevant to a defence under s53 of the OH&S Act, but are not necessarily relevant to whether a breach of the section has occurred.

We consider that this submission is misconceived. Firstly, the submission focuses on the foreseeability of the alleged risk to safety. The authorities cited above establish that in order to demonstrate a breach of s 15(1) the prosecutor is required to prove the existence of a failure on the part of the employer which is causally connected with the risk to safety. There can be no failure on the part of the employer in not taking steps to preclude a risk which was impossible to anticipate: see WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd (unreported, Peterson J). However, the appellant goes further and submits that no breach of s 15(1) is committed where the employer does not know of the hazard and could not reasonably know about it.

The concept of "reasonable foreseeability" is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances: see Carrington Slipways Pty Ltd v Callaghan [1985] 11 IR 467 at 469. Under s15(1) the obligation of the employer is "to ensure" the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote (see Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 50), the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1).

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.

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."

It is my view that the nature of the duties, and hence the question of whether an employer has offended against s16(1), are to be construed in that context. As was stated by Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 178-179 : "The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable" Again, and to a similar effect, Isaacs J commented in Rice v Henley (1914) 19 CLR 19 at 22: "In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit."

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.

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.

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.

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.

Those elements as particularised in terms of the evidence and the submissions of the parties were set out in some detail earlier where I considered the charge in Matter No IRC 5724 of 1997. Without repeating what was there said, I affirm it but do repeat the conclusion reached, that is, there was evidence which could support the proposition that the officers concerned had not in fact received up-to-date training in the various subject matters relevant to operational situations. Those subject matters, specifically, were weapons handling, tactics in high-risk situations, method of approach to buildings, concealment and the use of lights and torches. 47 The very nature of the circumstances as they existed at Crescent Head during the subject incident made relevant the type of training the two officers had not recently received. By failing to provide that training there arose, in my view, the necessary causal connection with the risk so experienced by the officers during the operation concerned. I exclude from this finding, however, particular (c) of the charge alleging a failure "to implement systems of monitoring and of enforcement to ensure that Police undertook the training that was available" - this particular effectively formed the substance of the charge in Matter No IRC 5724 of 1997 which is to be dismissed. The defendant has a case to answer on this charge as so amended by excluding the particular identified.

Conclusions 48 I find that the defendant has a case to answer the two charges in Matters Nos IRC 5721 and 5722 of 1997, other than particular (c) of that former charge alleging a failure by the defendant to implement systems of monitoring and of enforcement to ensure that police undertook the training that was available. I order that the costs thus far of the proceedings as to those charges be reserved. 49 I find that the defendant has no case to answer the four charges in Matters Nos IRC 5288, 5290, 5291 and 5724 of 1997. I order each of those charges to be dismissed, with the prosecutor to pay the defendant's costs in an amount as agreed or assessed. 50 As to the four charges in Matters Nos IRC 5289, 5723, 5725 and 5726 of 1997 in which the prosecutor led no evidence, I order that they be dismissed and with no order as to costs. 51 The parties will be advised in due course of arrangements for the continuation of the hearing of Matters Nos IRC 5721 and 5722 of 1997. ________________

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