(a) it was not reasonably practicable for the person to comply with the provision, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.
5 Mr Wendler took the Court to a judgment of the High Court in Pemble v The Queen (1971) 124 CLR 107, submitting that, whether counsel mentions s 28 of the Act or not, or whether anyone else did, if there is a prima facie case in respect of s 28, the Court is obliged to deal with it.
6 Counsel referred to the judgment of Barwick CJ, McTiernan and Windeyer JJ (Menzies and Owen JJ not dissenting on this issue) in respect of this principle. Barwick CJ stated at 117 and 118:
... Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law. This involves, in my opinion, an adequate direction both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part.
In Mancini v. Director of Public Prosecutions [1942] AC 1, provocation was not relied upon by defending counsel. In Kwaku Mensah v. The King [1946] AC 83, provocation was not raised at the trial nor in the reasons in the appellant's case for the consideration of the Privy Council. But, there being material before the jury on which they could properly have found provocation so as to reduce the crime from murder to manslaughter, their Lordships considered the absence of any direction as to provocation when that matter was raised by counsel in argument before them for the first time; and for lack of appropriate direction set aside a conviction for murder.
Here, counsel for the defence did not merely not rely on the matters now sought to be raised; he abandoned them and expressly confined the defence to the matters he did raise. However, in my opinion, this course did not relieve the trial judge of the duty to put the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.
7 Menzies J stated at 133:
...Moreover, counsel for the defence cannot effectively disclaim a defence open to the accused upon the evidence. The judge must submit that defence to the jury. Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge as counsel for the defence rightly told the jury.
8 It followed, Mr Wendler submitted, that I was not precluded from considering whether upon the entirety of the evidence a defence was made out under s 28(a) or s 28(b) of the Act. However, Mr Wendler conceded that s 28(a) had no relevance but that s 28(b) may have relevance to the unusual circumstances of the case.
9 Mr Skinner of counsel, who appeared for the prosecutor, did not wish to be heard against the principle of law relied upon by Mr Wendler.
10 Although I have considered the statements made by their Honours in Pemble, given the approach of the parties, I do not propose to express any concluded view on the law as found in Pemble particularly as it involved a jury trial. However, I note more recently in Spies v The Queen (2001) CLR 603 at 617 the High Court (Gaudron, McHugh, Gummow and Hayne JJ) disapproved of the reasoning in Pemble.
11 Mr Wendler formally relied on the submissions that he had made during the hearing on 28 and 29 October 2004 as being equally applicable to the s 28 defence.
The Section 28 Defence
12 In relation to s 28 defences, the defendant called no specific oral evidence dedicated to this subject. The defendant bears the onus in establishing a defence under s 28 but does so only on the civil onus. Nevertheless, that onus is substantial: Sydney County Council v Coulson (1987) 21 IR 477 at 480; Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 457.
13 I have already found that the defendant entered into a contract with Mr Clissold to investigate why a dam on his land was leaking and what remedial measures were required to stop the leak. This necessitated the digging of a trench. Prior to the work being completed Mr Clissold entered the trench on three occasions. On the last occasion, the trench collapsed killing Mr Clissold.
14 In oral submissions, counsel for the defendant asserted that the causal connection between the act or omission of the defendant was broken by a novus actus which was described as the wilful and deliberate disobedient act of the deceased in proceeding to enter the trench when he had been warned not to do so on a number of occasions. Counsel relied on the circumstances described by the defendant, particularly, the last occasion, when the deceased entered the trench without, in fact, the knowledge of the defendant.
15 As I understand the defence raised by the defendant, it is that Mr Clissold was a curious, officious, or intrusive bystander, who had been warned off. Mr Wendler submitted it was the wilful and deliberate disobedience of the deceased in proceeding into the trench, which resulted in the commission of the offence. It is this conduct, as I understand the defence, that gave rise to causes over which the defendant says he had no control and against the happening of which it was impracticable for the defendant to make provision.
16 This characterisation, in my view, gives rise to a false concept. The reality is that Mr Clissold was a person not following warnings or directions. In Maclean v Tedman & Anor (1984) 155 CLR 306, Mason, Wilson, Brennan, Dawson JJ, (Gibbs CJ not dissenting on this issue) said at 311 - 312:
In such a situation it is not an acceptable answer to assert that an employer has no control over an employee's negligence or inadvertence. The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law defence: (Wheare v. Clarke (1937) 56 CLR 715, at p 723; Henwood v. Municipal Tramways Trust (S.A.) (1938) 60 CLR 438, at p 444). The employer is not exempt from the application of this standard vis-a-vis his employees, whether his obligation to provide a safe system of work is one which is expressed as a requirement of ensuring that the system is as safe as reasonable care can make it or is expressed as one which requires him to take reasonable care in providing such a system. The employer's obligation in this respect cannot be restricted to the provision of a system which safeguards the employee from all foreseeable risks of injury except those which arise from his own inadvertence or negligence. There are many employment situations in which the risk of injury to the employee is negligible so long as the employee executes his work without inadvertence and takes reasonable care for his own safety. In these situations the possibility that the employee will act inadvertently or without taking reasonable care may give rise to a foreseeable risk of injury. In accordance with well settled principle the employer is bound to take care to avoid such a risk.