WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Ltd

Industrial Relations Commission (NSW)|1994-06-22|Before: Marks J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Ltd [2000] NSWIRComm 221 PROSECUTOR WorkCover Authority of New South Wales (Inspector Rech)

FILE NUMBER: IRC5404, 5405, 5406 of 1999 CORAM: Marks J Occupational health and safety prosecution - No case to answer submissions - Formulation of charge - Approach to construction - Necessity for causal nexus - Whether court can determine to dismiss proceedings at close of prosecution case if prosecution case not made out. CATCHWORDS :

LEGISLATION CITED : Occupational Health and Safety Act 1983 s 15(1) Construction Safety Regulation 1955 122(4) Doney v The Queen (1990) 171 CLR 207 R v R (1989) 18 NSWLR 74 WorkCover Authority of NSW (Insp Wolfe) v Brown (unrep 22 June 1994 CT 454 and 455 of 1991) WorkCover Authority of NSW v SWR Constructors Pty Ltd (2000) NSWIRComm 115 May v O'Sullivan (1955) 92 CLR 654 Haw Tua Tau v Public Prosecutor (1982) AC 136 Wentworth v Rogers (1984) 2 NSWLR 422 Hocking v Bell (1945) 71 CLR 430 at 443 CASES CITED : De Gioia v Darling Island Stevedoring and Lighterage Co Ltd (1941) 42 SR(NSW) 1 at 4 The Queen v Prasad (1979) 23 SASR 161 Benney v Dowling (1959) VR 237 Sharp v Hotel International Ltd (1969) VR 103 at 108 O'Mara v Litfin, Ex parte O'Mara (1972) QWN 32 Wilson v Kuhl (1979) VR 315 Attorney General's Reference (No 1) (1983) 2 VR 410 The Queen v Bilick (1984) 36 SASR 321 Weissensteiner v The Queen (1993) 178 CLR 217 Reg v Galbraith (1981) 1 WLR 1039 HEARING DATES: 07/31/2000; 08/01/2000; 08/02/2000; 10/27/2000 DATE OF JUDGMENT: 12/13/2000

PROSECUTOR Mr P M Skinner of counsel SOLICITORS WorkCover Authority of NSW

LEGAL REPRESENTATIVES: DEFENDANT Mr S J Archer and with him Mr R E Dubler of Counsel SOLICITORS Corrs Chambers Westgarth

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR RECH) v WALTER CONSTRUCTION GROUP PTY LTD Prosecutions under s 15(1) of the Occupational Health and Safety Act 1983

1 These are three prosecutions commenced by Inspector Rick Rech on behalf of the WorkCover Authority of New South Wales against the defendant Walter Construction Group Ltd (previously known as Concrete Constructions). They arise out of an incident which occurred on 24 October 1997 at 30 Friendship Road Botany. The defendant was engaged in excavating a cavern to be used for the storage of liquid petroleum gas. On the day in question it is alleged that 12 employees of the defendant were descending from the surface into the cavern utilising a device known as an "Access Shaft Manrider". Whilst the device was descending one of two metal cables which were attached to it broke. A safety switch was activated which brought the device to a halt. All of the employees were able to leave the device safely and no injury was sustained by any of them. Each of the summonses alleges a breach by the defendant of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). 2 Section15(1) is in the following terms: 15(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

3 By agreement between the parties each of the proceedings was heard concurrently with evidence in the one being evidence in the other. 4 Each of the charges was in identical terms, although the particulars differed. Each charge was in the following terms: On 24 October 1997 at 30 Friendship Road, Botany in the State of New South Wales, the defendant contravened Section 15(1) of the Occupational Health and Safety Act 1983, in that being an employer it failed to ensure the health, safety and welfare at work of all its employees and in particular Neil Peter, Neville Ngawati, Peter Brownett, Robert McMekin, Phil Trainor, Julian Osmond, Barnie Osmond, Bruce Lindop, Darryn Wenlock, John Eldridge, Mark Bunk and Willy Ross. 5 The particulars of each charge are as follow: 5404 : The defendant failed to provide or maintain systems of work to ensure that the maximum live load of the Access Shaft Manrider was not exceeded.

5405 : The defendant failed to provide adequate supervision as may be necessary to ensure the health and safety at work of its employees, in that it failed to ensure that the maximum live load of the Access Shaft Manrider was not exceeded.

5406 : The defendant failed to maintain plant, to wit, a 16mm nominal diameter wire rope, which was one of two ropes supporting the Access Shaft Manrider, to ensure that it was safe and without risks to health. In particular, it failed to detect corrosion in the rope and ensure that all portions of the rope were adequately lubricated. 6 At the conclusion of the prosecution case, the defendant submitted that it had no case to answer and that the proceedings should be dismissed accordingly.

THE EVIDENCE 7 The defendant made a number of admissions for the purpose of the proceedings namely:

That Inspectors Rick Rech and Walter Hess were duly appointed Inspectors under the Act at all relevant times.
That the defendant was a corporation at the time of the alleged breaches.
That the defendant was an employer for the purposes of the Act at the time of the alleged breaches.
That five named persons, David Ngawati, Steve Teraki, Neil Peter, Peter Brownett and Bruce Mace were all employees of the defendant at the time of the alleged breaches.

8 The incident was investigated by Walter Hess who was at the relevant time an Inspector employed by the WorkCover Authority of New South Wales but who has since retired. 9 Mr Hess had been to the work site at Botany on many occasions prior to the incident which gave rise to these proceedings. He had also travelled down the Manrider device many times. This was a site which had been assigned to him and he had acquired substantial familiarity with it. He had also looked at the winches which operated the mechanism to raise and lower the device and had looked at the ropes although he had not inspected them. However when looking at the ropes he saw nothing about them which gave him "the slightest concern" about their condition. In particular Mr Hess did not at any time form an opinion that the ropes were not adequately lubricated. 10 Mr Hess inspected the site on 25 October 1997 the day after the incident. He said it was very wet. Whilst descending the shaft in another appliance he saw what he described as a rust mark on a beam and described it as brown corrosion. However in cross examination he said that the substance which was depicted in photographs may have resulted from an extrusion of ironstone and wash from the walls of the shaft. 11 Mr Hess said that he examined one end of the broken steel wire rope which was frayed and looked rusty. However some of the rust could easily be rubbed off by hand. 12 Mr Hess gave evidence about the existence of an electric trip switch which stopped the Manrider device if the cable snapped. 13 He also said that he received a number of daily inspection reports from representatives of the defendant including daily inspection reports relating to the day of the incident. These showed that the steel rope had been lubricated. There was nothing in any of the inspection reports which gave him any cause for disquiet. 14 Mr Hess received information that there were 12 persons in the Manrider device at the time of the incident. 15 He also gave evidence of having photographed the contents of a sign which was affixed to the inside of the device. The sign first contained the name of the Concrete Constructions Group and a header "Access Shaft Manrider". It read "Maximum Live Load 10 Persons or 1,000 kg". It was signed by Ian Ratcliffe of Concrete Constructions and Bill Kellerman of Sinclair Knight Merz. A sign affixed to the grill of the device read in part "Dead Load: 2.140 tonnes Live Load 10 persons or 1.0 tonne." 16 Evidence was given by Neville David Ngawati, an employee of the defendant who was travelling in the Manrider device at the time of the incident. He said that he weighed about 85kg but with the wet weather and other gear that he was wearing and the tools that he was carrying he would have weighed about 95kg. There were about 12 persons in the device at the time of the incident. He said that the device descended into the shaft and suddenly stopped. He heard the sound of the rope landing on top of the roof of the device and it then hung over the side. All of the employees jumped out of the device and were ultimately taken to the surface. 17 In the two years in which he had worked at the site Mr Ngawati had never seen a head count undertaken of the number of persons using the Manrider device. 18 Mr Ngawati described the broken end of the rope that had fallen to the top of the device. He described it as frayed and shiny, that is, the part that was broken seemed to be shiny compared to the remainder. The remainder was coloured grey "with grease all around". 19 Mr Ngawati said that he had been inducted into the use of the device and his attention had been directed to the sign indicating 10 people or 1,000 kg. He said that the device was not very big and that with 10 or 12 people in it of reasonable size it was cramped. 20 Warren Teraki was the shift boss at the time of the incident although he was not travelling on the device at the time the incident occurred. He did inspect the broken steel rope immediately after the incident occurred and saw that the ends "had been frayed open. You can imagine why a rope is all wound up tight, many strands, and that had been frayed open and there was a clean cut." Mr Teraki said that he had been told that there were 12 men in the device at the time that the incident occurred. 21 Mr Teraki was aware of the existence of the sign limiting the number of persons using the device to 10 and said that this was, in his experience, generally adhered to. In fact he had never been aware of more than 10 people using the device at any time. 22 Mr Teraki had watched the device in operation on many occasions and had looked at the steel rope going past. He had never seen any irregularity or anything else which gave him concern about the quality of the rope which always appeared to be well lubricated and to have grease on the surface. 23 Barry Mace was a mechanic employed by the defendant with about 30 years experience in the construction industry. He held the position of mechanical superintendent and had 14 years experience in that position. He had been at the site for about 18 months at the time the incident occurred. 24 It was Mr Mace's evidence that daily visual inspections of the steel ropes were carried out and that further and more detailed inspections were carried out weekly and monthly. The ropes were greased at monthly intervals. He also gave evidence about the system of records kept with respect to daily and other maintenance checks of the Manrider. 25 Mr Mace said that he had ridden on the Manrider device on many occasions and had not noticed more than10 people on it. He said that with 10 people in the Manrider the state of comfort would have been "very tight, very compact." 26 Mr Mace was asked to assume that the rope broke 31 metres from the point of the joinder of the rope to the device. It was his evidence that that part of the rope would have been observable on the winch drum when the device was being lowered. He had observed the rope on the Manrider device on many occasions and had seen that it was well lubricated. He had never observed any corrosion, defect or anomaly on the rope. As far as he was concerned it was a new rope at the time that the device was installed. 27 Evidence was given by Brian Hemsworth a Director of Australian Winch Haulage Co Pty Ltd. This company supplied the winch on a hire basis to the defendant. The cage was built by another company and was designed by Sinclair Mines. Mr Hemsworth's company provided the steel ropes as well as the winding equipment. It was also involved in the commissioning of the whole system. Mr Hemsworth identified a test certificate for the ropes. They were purchased from another company and had ultimately been manufactured by a mill in Korea. At the time the ropes were acquired Mr Hemsworth was provided with a certificate as to their specification. 28 Mr Hemsworth said that his company performed certain tests in connection with the installation of the equipment in May 1997. 29 Evidence was given by Peter Brownett who was formerly employed by the defendant and was in the Manrider device at the time that the incident occurred. He weighed at the time 140 kg "in the shower". He said that there were 12 persons in the device at the time. 30 He saw the exposed end of the broken rope. He said "it appeared to be typical of a rope that had been stretched and broken. It was not a clean cut. The ends were slightly splayed . . . . . The core did not seem to be very moist. They normally have a hemp core, the hemp core is an indication of adequate lubrication. It did not appear to be oily, moist because the shaft was wet, everything had water on it by the time we got out of the cage." It appeared to Mr Brownett that the rope had over-reached its limits and snapped. 31 In cross examination Mr Brownett said that the occasions on which more than 10 people rode in the device did not occur very often. In cross examination Mr Brownett said that whilst the core of the rope did not appear to be oily, the rope itself on its external surface appeared well lubricated and he did not see any obvious brown rust inside it. 32 Evidence was given by Frederick William Kellerman a consulting engineer with the firm Sinclair Knight Merz. It was that firm's role to provide engineering design services for various components to be used at the site including the cage and the foundations for the hoist system. The hoist was not designed by that firm. He said also that the ropes would have been selected by his firm. It was his firm which gave performance specifications to Australian Winch Haulage Co concerning the ropes. 33 Mr Kellerman said that when the design brief was originally given to his firm it referred to a cage which could carry 15 persons. However when the cage was finally constructed and additional work was carried out to it, it was significantly heavier than had originally been anticipated. Accordingly, it was designated in drawings produced by his firm as having a maximum live load of 10 persons or 1,000 kg. 34 Mr Kellerman gave evidence that in the design process a "rope factor of safety" of 10 was used. He said that this was in effect the breaking strain of the rope divided by the maximum static load. Accordingly if a factor of 10 was used the rope would be able to take ten times more than the maximum static load before it broke. The maximum static load was calculated by aggregating the weight of the device together with its live load and the weight of the suspended wire rope. 35 In cross examination Mr Kellerman said that when the device was originally designed he thought that the relevant all up weight would be 1,300 kg. After the device was weighed it was discovered that its weight was 2,140 kg plus or minus 2 kg. After discovering that the device weighed more than originally anticipated Mr Kellerman re-calculated the strength necessary for the rope. He also undertook those calculations in the course of giving his evidence. Mr Kellerman's calculations revealed that in fact the allowable load with respect to the Manrider device was 12.6 people allowing a safety factor of 10. He indicated that this was a conservative safety factor because when one rope broke the other rope was able to take the entire load of the weight of the Manrider, the weight of the ropes and the weight of the occupants. In coming to a calculation of 12.6 persons Mr Kellerman based his calculations on an average weight for each person of 88 kg. If an average weight of 80 kg were used the maximum number of persons who could safely use the device would be 14. 36 Mr Kellerman gave evidence concerning his experience in the mining industry and his work as an adjunct senior lecturer for hoisting and shaft construction and mine construction work at the University of New South Wales in the School of Mines. He also referred to a number of publications particularly those issued by the New South Wales Department of Mines entitled "Guidelines for Safe Mining". It was Mr Kellerman's opinion that a safety factor of 10 was conservative and that a safety factor of 7.5 would, in effect, have produced a safe result. In fact, if one applied a safety factor of 7.5 with an average weight of 88 kg, the maximum allowable load would have been 27 persons. 37 Evidence was also given by Christopher John Turner an engineer employed with the WorkCover Authority of New South Wales. He gave evidence about a large number of Australian Standards which applied to equipment analogous to that of the Manrider device the subject of these proceedings. It was his assessment that a basic and consistent safety factor operated throughout these Standards of 10. 38 It was Mr Turner's view that the defendant in these proceedings had breached its obligations by exceeding the loads stated in the sign attached to the device. It was the sign itself which determined the allowable load, not the underlying load calculated in the manner in which Mr Kellerman had put forward. (I interpolate that such an approach could lead to a ridiculous situation in that the sign that might be attached to the device could indicate an allowable load much greater than the true load calculated in the manner contended for by Mr Kellerman.) 39 Mr Turner agreed generally with the calculations undertaken by Mr Kellerman. 40 The final witness was David Ng, employed by the WorkCover Authority of New South Wales as an engineer in its Test Safe laboratory. Mr Ng is in charge of the mechanical testing unit which carries out destructive and non-destructive testing of wire ropes for mines and other sites. He has been engaged in that type of work for 17 ½ years. 41 Mr Ng conducted tests of three portions of rope. They were cut on 27 October 1997 and tested on 28 October. Sample 1 was one metre long and was taken from the broken rope immediately above the break. Sample 2 was four metres long and was taken from the same rope immediately below the break. Sample 3 was four metres long and taken from the adjacent part of the rope which was also attached to the cage but which had not broken. 42 Samples 2 and 3 were load tested. Sample 2 tested at 165 kN showing a 7% loss of original strength. Sample 3 tested at 169 kN showing 5% loss of original strength. 43 All of the samples showed the ropes to be generally in good condition "with negligible corrosion and only moderate wear on the crown wires" save for the condition of the wires at the break and at about four metres below the break where there was an area which was dry and indicated lack of lubricant. At the break there appeared to be severe corrosion "with pitting of the wires and generally showing a lack of lubrication." Photographs which accompanied Mr Ng's report indicated that near the area where the break occurred, the exterior of the rope showed marked signs of corrosion, easily visible in contrast with other areas of the rope where no such corrosion appears and where there is an appearance of grease or similar substance. 44 A written report of Mr Ng indicated that the rope which broke may have been severely weakened by the effects of corrosion resulting from the harsh environment in which the rope operated particularly coming into contact with a corrosive agent such as salt water. He thought that the onset of corrosion would have been significantly assisted by the absence of lubricant in the failed area. He said "It is not known whether the lack of internal lubrication in these two areas are due to omission during manufacture or as a result of incorrect maintenance procedures." 45 Under cross examination Mr Ng conceded that the lack of corrosion on the adjacent section of rope which had not broken at the same corresponding distance from the cage equally supported the possibility of a manufacturing problem. 46 Mr Ng also conceded that at the time that the rope samples were given to him there was no grease on the external surface of the ropes, so that it was possible that their condition at the time of examination was not the same condition of the ropes at the time of the incident. 47 Mr Ng was unable to say whether the break was caused by incorrect maintenance or due to some manufacturing omission. 48 Finally, Mr Ng said that a 5% or 7% loss of original strength was not significant. There needed to be a loss of strength of 10% or more before this affected safety.

PRINCIPLES TO BE APPLIED ON A NO CASE SUBMISSION 49 The relevant principles which apply to such a submission are now relatively uncontroversial. A convenient starting point is the decision of the High Court of Australia in Doney v The Queen (1990) 171 CLR 207. That decision settled a controversy which had arisen both in the United Kingdom and within certain states of Australia as the basis upon which a judge could direct a jury to return a verdict of not guilty by reference to the evidence adduced in the prosecution case. A practice had emerged in the United Kingdom which had been followed by some state courts in Australia to the effect that a trial judge might stop a trial if in the opinion of the judge a verdict of guilty would be unsafe or unsatisfactory. The High Court (Deane, Dawson, Toohey, Gaudron and McHugh JJ) in a unanimous judgment rejected this approach holding 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." (at 214-5).

50 The rationale for such an approach was that this preserved the role and function of the jury. If a judge were permitted to take a matter away from a jury on the broader basis that a verdict would be unsafe or unsatisfactory, the role of the jury would be usurped. 51 Whilst there are a number of decided cases in this area I mention by way of completeness the judgment of Gleeson CJ (as his Honour then was) in the New South Wales Court of Criminal Appeal in R v R (1989) 18 NSWLR 74 which is to the same effect as the judgment of the High Court in Doney. The judgment of Gleeson CJ deals at some length with the controversy which had previously existed and which, in his Honour's view, was resolved also by reference to the preservation of the role of the jury as the finder of fact in criminal proceedings. 52 For completeness, I make reference to an earlier judgment in WorkCover Authority of New South Wales (Inspector Wolfe) v Brown (unrep. 22 June 1994 CT 454 and 455 of 1991) in which I attempted to state the law in this area as follows: "In summary the task which I am asked to carry out on behalf of the defendant Edward Ernest Brown is to make an assessment as to whether on the evidence as it stands the defendant could lawfully be convicted or put conversely whether there is no evidence on which I could properly convict him.

Take the prosecution case at its highest and in doing so I may disregard any evidence favouring the defendant and have regard only to that evidence which favours the prosecution.

Not take into account the probative value of the evidence, the weight to be afforded to that evidence, or the credibility of the witnesses who gave it.

Take into account the fact that the evidence and inferences to be drawn from it must be capable of establishing a prima facie proof of each ingredient of the offence beyond reasonable doubt." (at p 7 ) 53 There was some discussion during the course of submissions in these proceedings as to whether the word "may" in para 1 should more properly read "must". Indeed, Kavanagh J in WorkCover Authority of NSW v SWR Constructors Pty Ltd (2000) NSWIRComm 115 reproduced the principle substituting "must" for "may". 54 Having reconsidered the relevant authorities including, in particular, May v O'Sullivan (1955) 92 CLR 654 I agree that "must" should be substituted for "may" subject however to a qualification which I think is permissible on the state of the authorities. This qualification goes to the quality of the available evidence. 55 In Haw Tua Tau v Public Prosecutor (1982) AC 136 the Privy Council, in discussing a no case to answer submission said: The proper attitude of mind that the decider of fact ought to adopt towards the prosecution's evidence at the conclusion of the prosecution's case is most easily identified by considering a criminal trial before a judge and jury, such as occurs in England and occurred in Singapore until its final abolition in capital cases in 1969. Here the decision-making function is divided; questions of law are for the judge, questions of fact are for the jury. It is well established that in a jury trial at the conclusion of the prosecution's case it is the judge's function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate , would establish each essential element in the alleged offence: for what are the essential elements in any criminal offence is a question of law. If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements, it is the judge's duty to direct an acquittal, for it is only upon evidence that juries are entitled to convict; but, if there is some evidence, the judge must let the case go on." (at 151). 56 The qualification as expressed by the Privy Council relates to evidence which is "so inherently incredible that no reasonable person could accept it as being true." In Doney the High Court of Australia also made allowance for such a qualification. It its joint judgment the Court said: "And it may sometimes happen (although it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with a consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed." (at 212, and see the authorities cited). 57 Gleeson CJ identified a similar situation in R v R concerning identification evidence which may be held to be so unsatisfactory as to justify withdrawal from a jury's consideration. (at 76). Another example is given by Glass JA in Wentworth v Rogers (1984) 2 NSWLR 422. At 431 his Honour said: "It is accepted doctrine that the sufficiency of the prosecution evidence to support a conviction cannot be reduced to its insufficiency by any amount of contrary evidence for the defence no matter how overwhelming or preponderant it may be: Hocking v Bell (1945) 71 CLR 430 at 443. To this principle one exception only has to be recognised. If a prima facie case has been made out only if some evidence remains unexplained and the defendant furnishes an explanation by evidence which cannot be treated as genuinely in dispute and which reasonable men could not reject, what appeared to be a prima facie case no longer exists in point of law: De Gioia v Darling Island Stevedoring and Lighterage Co Ltd (1941) 42 SR (NSW) 1 at 4. Only in such marginal circumstances can the sufficiency of the prosecution evidence be depressed below the sufficiency level." (at 431). 58 I propose to proceed on the basis of the principles as set out above.

SUMMONS 5404 of 1999 59 The parties were fundamentally opposed as to the subject matter of the charge in this summons. I have previously set out the text of the charge (see paras 4 and 5 above). The defendant submitted that in accordance with the evidence the maximum live load of the device had never been exceeded and accordingly the charge could not be established. The prosecution submitted that firstly the maximum live load was that fixed by the sign attached to the device which had been exceeded and, alternatively, whether or not the maximum live load was or was not exceeded was irrelevant because all that mattered was that there was a failure to provide or maintain systems at work to ensure that the maximum live load was not exceeded. 60 It was the prosecution case that the substantive allegation arising under this summons was a failure to ensure, that is guarantee, the health, safety and welfare at work of the defendant's employees. This failure was said to be brought about because of a failure to provide or maintain systems at work to ensure that the maximum live load was not exceeded. There was evidence that the defendant did not weigh persons including their equipment who used the device nor was a head count carried out as to the number of persons. 61 In addition, the prosecution made reference to regulation 122(4) of the Construction Safety Regulations which is to the following effect: Every crane and every hoist shall have constantly maintained upon it a permanent notice, prominently and legibly exhibiting all of the safe working loads of such crane or hoist, together with such information as to the conditions, incidence and manner in which such loads may be lifted or handled as is necessary or desirable for the safe use and/or manipulation of the crane or hoist. Such loads, conditions, incidences and manners shall be those determined by and in conformity with these Regulations as limiting values of such loads, conditions, incidences and manners of loadings. No other load or conditions of loading shall be marked or exhibited upon the crane or hoist, unless first approved by the Authority.

62 Mr Skinner, counsel for the prosecutor, did not rely upon any regulation which touched upon the determination of the manner in which limiting values of loads might be made under the regulations, and I have not made any attempt to have recourse to the regulations for this purpose. 63 Mr Skinner alleged that the phrase "maximum live load" as used in the summons is a reference to the limiting value of the safe live working load as expressed in the sign attached to the device. As previously indicated this sign stated that there was a maximum live load of 10 persons or 1,000 kg. Mr Skinner also pointed to the difference between the maximum live load referred to in the sign and the "maximum load" also referred to. 64 Mr Skinner submitted, and I accept that there is evidence to the effect that there were more than 10 persons in the device at the time of the incident and that there were about 12 persons in the device at that time. 65 As an alternative submission, Mr Skinner submitted that whether or not the maximum live load, whatever it was, had been exceeded was not an element of the offence as pleaded requiring proof beyond a reasonable doubt. It was only necessary for the prosecution to prove that there was a failure to provide or maintain systems at work to ensure that the maximum live load was not exceeded and there was evidence of this because no such system existed. 66 It was the defendant's submission that the maximum live load is a question of fact for determination and that the most conservative evidence given about this suggested was that at the least, the maximum live load was 1,123kg or 12.76 persons. There was no evidence that this had been exceeded. Indeed, there was no evidence at all about the aggregate weight of all of the persons in the device at the time that the incident occurred. I accept that there was no such evidence either specifically or that may be derived by implication. While there is evidence about the weight of two employees, it would in my opinion be unsafe, unsatisfactory and impermissible to attempt to extrapolate an aggregate weight of all twelve employees for the purpose of these proceedings. I accept also that there is no evidence that there were more than twelve people in the device at the time that the incident occurred. It was an integral part of the defence submissions that the defendant must have exceeded the maximum live load as referred to in the charge as a pre-requisite to being found guilty of the offence. The maximum live load could only be that determined by the experts and any amount stated on the sign was irrelevant. 67 There is obviously disagreement between the prosecution and the defendant as to the subject matter of the charge. The prosecution alleges against the defendant that there was a failure to provide and maintain systems of work to ensure that the maximum live load of the device, whatever it was, was not exceeded. This focused on the failure of the defendant to put in place any system to count the number of passengers and to weigh them. This failure, it was alleged, created a risk of injury and, thus, a breach of s 15(1). Whatever was the maximum live load, it was not an essential ingredient of the charge and the prosecution was not obliged to prove it beyond a reasonable doubt. In fact, when Mr Skinner opened the prosecution case he did so on this basis. The defendant always maintained that the fact that the maximum live load was exceeded was an integral and essential ingredient of the charge. Indeed, Mr Archer of counsel who appeared for the defendant raised this issue at the conclusion of Mr Skinner's opening. Both parties were content for the matter to proceed on this basis. The proper approach to the determination of this issue involves the construction of the charge to determine its essential ingredients. 68 On analysis the charge contained in the summons may be broken up into the following ingredients:

On 24 October 1997 at the named address in Botany
the defendant as an employer
failed to ensure the safety at work of certain particular employees referred to generally and by name.
Such failure resulted from a failure to provide or maintain a system of work to ensure that "the maximum live load" of the device was not exceeded.

69 It is this last ingredient which, in its formulation, is the genesis of the disputation between the parties as to the construction of the charge. Does this ingredient contain as an essential element the fact that the maximum live load was exceeded, or does it focus solely on a failure to provide or maintain systems of work for that purpose? On one basis the matter might be approached by having regard to whether or not there was indeed a risk of injury. However, even a failure to provide a head count and weigh employees could be said to create a risk of injury simpliciter. In my opinion one has to approach the question of a risk to injury in a realistic manner in terms of the overall philosophy and thrust of the legislation. Almost everything that is now undertaken by employees creates some form of risk of injury including, crossing the street as a pedestrian or driving on the road. However the Act is not designed to impact upon risks of injury which are remote of fanciful, and it must be presumed that the legislature intended that it would be applied in a pragmatic manner consistent with the objects set out in the Act. Assuming, that at the time that the rope snapped there had been only six employees in the device, nevertheless, the defendant had failed to put in place a system of head count and weighing of the occupants of the device. Would the charge as formulated apply to the defendant in those circumstances? I think not. Accordingly I intend adopting an approach to construction which would result in the charge being construed in a manner that related to a risk of injury which was neither fanciful nor remote. 70 Essentially, the question of construction revolves around the meaning of the words "to ensure" in the context in which they appear in the particulars of charge 5404. There are many meanings of the word "to" as an adverb, as will be attested to by reference to the Oxford English dictionary. In combination with the word "ensure" it seems to me that the "plain English meaning" of the charge is that the defendant failed to provide or maintain systems of work for the purpose of ensuring, in the sense of bringing about a result, that the maximum live load of the device was not exceeded. On this basis the fact that the maximum live load was exceeded becomes an integral component of this ingredient of the charge and, itself, an essential ingredient. 71 For present purposes it seems to me that there are four essential ingredients of the charge. These are as follows: a) There was a failure by the defendant to ensure the safety of the employees on the relevant occasion. b) That failure was brought about by a failure to provide or maintain systems of work. c) The systems of work should have been directed to ensure that the maximum live load was not exceeded. d) The maximum live load was exceeded.

The prosecution must prove all of these four ingredients. 72 On the evidence I am satisfied to the extent necessary that there was a risk of injury created by the breaking of the rope. No submission to the contrary was advanced by the defendant. Accordingly there was a failure to ensure, in the sense of guarantee, the safety of the relevant employees. 73 I am also satisfied on the state of the evidence as required for the purpose of this interlocutory application that the defendant did not employ a system of either weighing the employees and their equipment or of conducting head counts to ensure that any particular maximum live load was not exceeded. 74 My analysis of the charge as brought identifies the exceeding of the maximum live load as being an essential ingredient of the offence. Accordingly, the prosecution must establish beyond a reasonable doubt that there is the requisite degree of evidence to prove this ingredient. 75 As I have previously indicated the prosecution sought to rely on the sign attached to the device which might impliedly have been so attached in conformity with the defendant's obligations under regulation 122(4) of the Construction Safety Regulations, the provisions of which I have earlier set out. 76 There is no clue given in the manner in which the charge is framed that the maximum live load is that which is referred to in the attached sign. The defendant submitted that the maximum live load was that which could safely be carried in the device. In that the essential ingredients of the offence are directed cumulatively to a risk of injury it seems to me that it is more appropriate in dealing with the charge to look at what was in fact the maximum live load of the device which could safely be carried in the device so as to ensure the safety, health and welfare of the employees. Accordingly I agree with the defence submission that this is the preferred and appropriate manner in which the charge should be construed. In reaching this conclusion I have not had regard to any consideration of the necessity for the framing of charges in connection with proceedings which are in the nature of criminal proceedings with specificity so as to endeavour to avoid any possible ambiguity. I was advised that the defendant did not seek particulars of the charge, at any rate with respect to what was meant by the expression "maximum live load" therein contained. 77 It is then necessary to look at the evidence to ascertain what was the safe working load of the device. This consisted of the expert evidence of Mr Kellerman and that of Mr Turner. I ignore for the purpose of this discussion Mr Turner's views about whether the load stated in the sign attached to the device per se created any obligation on the defendant. In general terms Mr Turner agreed with the calculations made by Mr Kellerman. Mr Kellerman has undoubted expertise in this area. 78 The most conservative estimate of Mr Kellerman was in effect that a safe working load was 12.6 people. 79 There is no evidence that would establish, in my opinion, to the requisite extent and to the criminal standard of proof that there were more than 12 persons in the device at the time of the incident. Mr Ngawati said that there were about 12 persons in the device, Mr Teraki was told that there were 12 men in the device, and Mr Brownett said that there were 12 persons in the device at the time. There is other evidence to which I have previously referred to the effect that the size of the device made it very uncomfortable for more than 10 persons to ride in it at any one time. 80 Accordingly, I am not satisfied to the requisite extent that the prosecution has established that there were more than 12 persons in the device at the time of the incident and to this extent the prosecution has failed to make out this essential ingredient of the charge. 81 In adopting this approach I have thus far failed to deal with Mr Skinner's principal submission that it is for the prosecutor to describe and define the alleged offence. He said: "A defence interpretation of the pleadings is not to the point, except perhaps to indicate the need for, in fairness, further clarification." I respectfully disagree. If the prosecution wishes to formulate a charge in a manner which is inconsistent with the proper approach to construction of the charge as pleaded in the summons, then the prosecution must do so clearly. The approach contended for by Mr Skinner consistently throughout the proceedings was postulated on the basis of a permissible approach to construction of the charges contained in the summons. I have already rejected such an approach. However, in deference to the submissions of Mr Skinner I propose to deal with the charge which he contended the defendant was required to meet. That was a charge of failing to provide or maintain a system of work directed to compliance with a maximum live load whatever it might be. In dealing with the construction of the charge as contained within the summons I adverted to the hypothetical situation of there being six people in the device at the time the rope broke. In those hypothetical circumstances the failure to provide and maintain a system of counting and weighing the occupants could not per se create any risk to health or safety except in a hypothetical sense. The failure to count or weigh would not have created a real or tangible risk. As Hungerford J observed in Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40 at 51 "Care must be taken, it seems to me, in determining the commission of an offence under s 16(1) (of the Act) not to so liberally interpret the duty cast as would exceed the permissible limits." 82 This reasoning is collateral to one further essential element of any breach of the Act, namely the requirement that there be a causal nexus between the breach and the risk to health and safety. That this is so has been confirmed in a number of well known authorities of this Court and its predecessors. The first was a decision of the Industrial Commission of New South Wales in Cullen v State Rail Authority (NSW) (1989) 31 IR 207. The Bench in that matter consisted of Fisher P, Cahill VP and Sweeney J. Fisher P dissented. In the course of his dissenting judgment his Honour made some observations about the manner in which s 15(1) of the Act operates where an allegation is made by a prosecution that a defendant employer has failed to ensure that it has in place and maintains a safe system of work. Fisher P said: 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.

I consider that this safety code should be viewed in the light of the Industrial Commission's practical experience of industrial circumstances. The deceased was well trained by experience over many years and by qualification to both work at and supervise tree lopping. Neither qualifications nor experience were seriously challenged in the evidence, indeed, the evidence established the deceased's responsible behaviour and experience as a qualified linesman in this precise work. The employer was entitled to rely upon these qualities. The case against the employer is not strengthened by suggested reliance on ever higher levels of supervision.

The case against the defendant is not proved beyond reasonable doubt if there remains an acceptable hypothesis reasonably consistent with the innocence of the defendant, that is, a reasonable doubt as to whether the matter alleged has been proved beyond reasonable doubt and was causally connected to the breach. I consider that on the evidence and for these reasons, the prosecution has not made out its case to the exclusion of reasonable doubt.

Were it necessary to do so, I would also accept, this time on the basis of probabilities, that a probable cause of the events alleged, the unforeseeable and unanticipated conduct of a properly trained and experienced supervisor supervened to remove from the employer the ability to control the happenings of the day which the employer otherwise would have had. The absence of information to the employer about the supervisor's casual acts of negligence, including the abandonment of a number of safety measures it was his duty to put in place, made it impractical for the employer to make further provision.

My essential finding under this aspect of the case is that the accident probably came about because of the casual acts of negligence of the supervisor, and not by the neglect of any matter over which the employer had control. (at 210-211)

83 These observations of Fisher P were approved by the Industrial Commission of New South Wales in Court Session in State Rail Authority of NSW v Dawson (1990) 37 IR 110 (McMahon DP, Hill and Hungerford JJ). 84 At 120-1 the Full Bench observed: Although s15(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 The Broken Hill Proprietary Company Limited ((1988) unreported) to the effect that "it is necessary that a causal nexus be shown between such a breach and the fact of detriment to safety." 85 The requirement to establish a causal nexus between the breach of s 15(1) and the risk to health and safety requires in turn that the prosecutor establish that the failure of the defendant to count and weigh the occupants of the device led on this occasion to a risk to their health or safety. Such a risk was relevantly created only by the breaking of the rope. The only causal factor identified in the charge was the exceeding of the maximum live load. Accordingly, in order for the prosecutor to establish the essential ingredient of a relevant causal nexus the prosecutor must adduce evidence to the relevant extent and of the relevant standard which is capable of demonstrating that the maximum live load was exceeded. Accordingly, even if the prosecution were to confine the charge in the primary manner contended for by Mr Skinner, it would nevertheless be required to establish to the requisite extent and to the criminal standard of proof for the purpose of these interlocutory proceedings that the maximum live load was exceeded. I have already concluded that the only evidentiary basis available to the prosecution with respect to this matter revolved around whether it could establish that there were more than 12 persons in the device to the extent necessary for the purpose of these interlocutory proceedings. For reasons which I have previously given the prosecution has failed to do so. 86 Accordingly, for all of these reasons the defence submission on this charge must succeed.

SUMMONS 5405 of 1999 87 This matter may be dealt with shortly. The respective submissions of the parties in connection with this matter were to the same effect as those which applied to 5404. In my opinion this matter may be determined in the same manner as 5404. The manner in which the particulars of this charge are framed does not lead to the type of debate which was encountered in connection with 5404. In those proceedings the parties were diametrically opposed as to the proper approach to construction of the charge. Here, there is a clear allegation that the defendant failed to ensure that the maximum live load was not exceeded. Accordingly, the exceeding of the maximum live load is, and must be, an essential ingredient of the charge. The prosecution has failed to establish this essential ingredient to the extent necessary for the purpose of this interlocutory application, as I have previously concluded in connection with charge 5404. 88 Accordingly, this charge should also be dismissed.

SUMMONS 5406 of 1999 89 The allegation in this matter is centred around a failure to maintain the rope to ensure that it was safe and without risks to health. The allegation was "particularised" by reference to a failure to detect corrosion and to ensure that all portions of the rope were adequately lubricated. 90 The charge is confined to 24 October 1997 at the Botany site. 91 Perhaps, as with the two earlier charges questions of construction may arise as to whether there must be established by the prosecution a causal nexus between the breaking of the rope and the failure to maintain it in the manner particularised. Neither party addressed this issue but concentrated their submissions about the state of evidence concerning corrosion and lubrication. 92 The submissions made by the defendant with respect to the evidence concerning these matters were directed principally to the state of the evidence after considering all of the relevant evidence. For example, Inspector Hess examined the rope the day after the accident and gave evidence of seeing some corrosive material on the broken ends. However he conceded that the rope was used in a wet environment where all pieces of metal looked as though they were corroded. Mr Hess conceded in evidence that there was a reddish substance along the top of the beams which resulted from an extrusion of ironstone and which may have been washed from the walls of the shaft onto the rope. Certainly, a photograph indicates that the reddish, rusty looking material came off easily onto the hands of a person handling the rope. The defence sought to contrast evidence of this kind against other evidence which was to the effect that there were no signs of corrosion or rust immediately after the incident occurred. Such evidence was given by Messrs Ngawati, Teraki and Mace. These persons also gave evidence to the effect that the rope had been adequately lubricated and, in the case of some of the witnesses, appeared to have been well lubricated on the day of the incident. 93 The evidence of Mr Ng and the photographic material attached to his report, to which I have earlier referred, is supportive of the presence of corrosion on the rope albeit some days after the incident occurred and without any explanation as to the manner in which the rope had been handled and the environment in which it had been kept in the interim. 94 I refer in a more particular way to the summary of the evidence which I have previously set out. In particular I refer also to the evidence of Mr Ng contained within his report that the break was the result of the effects of corrosion as set out in para 44 above. 95 There are many instances where there is evidence available to the defendant to counter the evidence upon which the prosecution relies. For example Mr Ng was unable to say whether the corrosion and hence the break was caused by incorrect maintenance or due to an omission during the manufacturing process. There is the evidence of the employees of the defendant to the effect that the rope did not appear to be corroded other than where the break occurred. However, for the purpose of the current proceedings and for the purpose of the no case to answer submission it is not necessary, or indeed permissible that I endeavour to balance the evidence. Mr Skinner submitted that even if there were manufacturing defects in the rope involving a lack of lubrication, the defendant would still be liable for having failed to maintain the rope. He submitted that "even with a wholly latent defect, these failures would remain causative of the risk." 96 In my opinion there is some evidence, to which I have referred, which, taken at its highest, could support a finding that there was corrosion on the rope both internally and externally at the time that the incident occurred and that that portion of the rope which broke was not adequately lubricated either internally or externally. 97 Accordingly, the defendant's submission with respect to this matter must fail.

UNSAFE OR UNSATISFACTORY TO CONVICT? 98 During the course of the proceedings I raised with the parties whether, in the event that I found that the defendant had a case to answer I could nevertheless, find the defendant not guilty if I formed the view that the evidence adduced by the prosecution was such that a verdict of guilty based upon that evidence would be unsafe or unsatisfactory. 99 I was not referred by the parties to any relevant statutory provision such as that considered by the New South Wales Court of Appeal in Wentworth v Rogers (1985) 2 NSWLR 422. In those proceedings the Court considered provisions of the Justices Act dealing with the right of a magistrate in committal proceedings to discharge a defendant if the evidence was not sufficient to warrant the defendant being put upon trial for an indictable offence. There are other relevant statutory provisions dealing with appeals where an appellate court may discharge a defendant on appeal where a jury's verdict is unsafe or unsatisfactory. ( see the discussion in R v R (1989) 18 NSWLR 74). 100 It seems that this matter is governed to some extent by practice, which may vary from jurisdiction to jurisdiction. White J in the Full Court of the Supreme Court of South Australia in The Queen v Prasad (1979) 23 SASR 161 referred to varying practices of the courts concerning submissions that it would be unsafe to convict on evidence then before the Court made at the close of the prosecution case. See generally the discussion at 170 et seq. 101 The resources of counsel in the preparation of submissions have located a number of cases in which this matter has been addressed. The starting point is a decision of O'Bryan J in the Supreme Court of Victoria in Benney v Dowling (1959) VR 237. Those proceedings involved the review by way of order nisi of an order made by a magistrate dismissing an information. At 242 his Honour said: The third ground of the order nisi , viz. that the magistrate was wrong in saying there was no case to answer, is based upon what I think is a wrong view of a recent decision of the High Court in May v O'Sullivan (1955), 92 CLR 654; [1955] ALR 671. There their Honours in a joint judgment at p 658 stated this: "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." That proposition in my opinion was never intended to carry with it the proposition that a magistrate has no discretion to say at the end of the informant's case whenever there is, technically speaking, evidence upon which the defendant could lawfully be convicted that he does not want to hear the defendant but will dismiss the information. What the magistrate said here was this: "In this case I have the evidence only of two police constables and it is not sufficient to me to prove that the defendant was incapable of driving a motor car. I will not call on the defendant to answer the charge and the case will be dismissed." It is not clear whether he did or did not add something to the effect that the information given by the police officers had to be read in conjunction with the defendant's behaviour at the hospital and the evidence of Dr Dick. I would have no doubt, however, that the magistrate did have those matters in mind when he said that he would not call upon the defendant to answer the charge. At p 659, after the passage I have cited from May v O'Sullivan , supra , the judgment goes on in this way: "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." It is common practice both in courts of petty sessions and in trials before a jury that at the end of the case for the informant or prosecution, although the evidence as it stands might justify a conviction, for the magistrate or a jury, very often at the suggestion of the trial judge, to say that he or it does or do not require to hear any evidence for the defence and to acquit at that stage. That is a very convenient practice and I do not think that the passage I have cited from May v O'Sullivan was intended to say that there is anything improper in such action. I would not, therefore, make the order nisi absolute on that ground. (at 242). 102 The decision in Benney v Dowling was applied by Newton J in the Supreme Court of Victoria in Sharp v Hotel International Ltd (1969) VR 103 at 108. His Honour said: "The stipendiary magistrate was entitled to uphold a submission that there was no case to answer if, as the evidence then stood, he did not himself consider that the informant's case had been proved beyond reasonable doubt, even though it would also have been open to him to have held that the evidence as it then stood would have justified a conviction." (at 108). 103 Lucas J in the Full Court of the Supreme Court of Queensland specifically agreed with what had been said by O'Bryan J in Benney v Dowling in O'Mara v Litfin; Ex parte O'Mara (1972) QWN 32. Wanstall and Hoare JJ agreed with the reasons of Lucas J. 104 In Wilson v Kuhl (1979) VR 315 McGarvie J in the Supreme Court of Victoria considered "the principles to be applied by a magistrate in deciding whether to dismiss an information at the close of the prosecution case without calling on the defendant." His Honour identified two steps which might in an appropriate case be taken. The first step involved a decision as a matter of law as to whether there was evidence on which the defendant could lawfully be convicted. This involves the application of the principles which I have earlier identified with respect to a no case to answer submission. The second step which his Honour identified was what his Honour described as "discretionary dismissal" which assumed the rejection of a no case to answer submission. His Honour was involved in a review of the dismissal of an information by a magistrate and proceeded on the basis that the magistrate had exercised a discretion to dismiss the information which, in all the circumstances, did not reveal any error. In describing the discretion his Honour said: As the discretion is one to depart from the ordinary rules of procedure, it is to be exercised only when the magistrate is satisfied that it ought to be exercised. In this case that would involve the magistrate being satisfied, first that, because of the paucity or the lack of weight or reliability of the evidence, no reasonable tribunal could safely convict, and second that, in the exercise of a judicial discretion, he should dismiss the information. In my opinion this follows by analogy from the principle discussed in R v Lee (1950) 82 CLR 133 at pp 152-3; and Wendo v R (1963), 109 CLR 559 at p 565. See also: O'Mara v Litfin; Ex Parte O'Mara , [1972] QWN 32. When a defendant submits that the discretion should be exercised, it is for the defendant to satisfy the magistrate as to the weakness of the prosecution evidence and that the discretion should be exercised in his favour. (at 326)

105 The practice was also adverted to by King CJ and White J in the Full Court of the Supreme Court of South Australia in The Queen v Prasad, previously referred to. At 163 King CJ said: It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings: Archbold, Criminal Pleading and Practice 39th ed. (1976) p 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal which is the judge of both law and fact may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution's case. It is part of the tribunal's function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts. (at 163)

106 At 172 White J said: "This also leaves to the trial judge the right to make suggestions to the jury or to ask the jury their views where the evidence appears to be so unreliable that it could not support a verdict of a jury properly directed. Such suggestions and advice should not, I think, ever take the form of directing the jury what to do within their own province." 107 The matter was again referred to in the Full Court of the Supreme Court of Victoria in Attorney General's Reference (No 1 of 1983) (1983) 2 VR 410. In the course of its judgment the Full Court (Young CJ, Anderson and Gobbo JJ) said: "Where the same tribunal is judge both of law and fact the tribunal may be satisfied that there is a case for an accused to answer and yet, if the accused chooses not to call any evidence, refuse to convict upon the evidence. That this is the correct logical analysis appears clearly from May v O'Sullivan. There is no distinction to be drawn between cases sought to be proved by circumstantial evidence and other cases." (at 416). 108 Finally, I refer to a judgment of the Full Court of the Supreme Court of South Australia in The Queen v Bilick (1984) 36 SASR 321. In the course of his judgment King CJ (with whom Mohr J agreed) made reference to the Privy Council decision in Haw Tua Tau v Public Prosecutor to which I have earlier referred. Their Lordships had stated that the same principles which applied to no case to answer submissions involving trial by judge and jury also applied to criminal trials heard by a judge alone where the judge tried both issues of law and fact. Their Lordships observed that where the no case to answer submission was rejected the judge "must call upon the accused to enter upon his defence, and as decider of fact must keep an open mind as to the accuracy of any of the prosecution's witnesses until the defence has tendered such evidence, if any, by the accused or other witnesses as it may want to call and counsel on both sides have addressed to the judge such arguments and comments on the evidence as they may wish to advance." (at 152). 109 Having set out this passage from the Privy Council decision King CJ said: It is noteworthy that the Privy Council makes no distinction between the test to be applied in deciding on a submission of no case to answer by a judge who is also the decider of fact and a judge who is sitting with a jury. I do not think, however, that their Lordships could have intended to impinge on the right of a judge who is the decider of the facts, to dismiss the charge on the facts at any time after the close of the case for the prosecution; likewise I think that their Lordships' observations about the duty of a jury to suspend judgment until all the evidence had been given, could not have been intended to impinge on the entrenched right of a jury to bring in a verdict of not guilty at any time after the close of the case for the prosecution. It is also noteworthy that the Privy Council envisages the possibility of evidence which is so inherently incredible as to amount to no evidence." (at 336-7).

110 The above authorities, many of which are at appellate level, are indicative of a power to dismiss proceedings at the close of the evidence led for the prosecution on the basis set out in the various judgments which I have extracted above. 111 Of course, there will be circumstances where the defendant's failure to call evidence may be taken into account. However, as was pointed out by the High Court of Australia in Weissensteiner v The Queen (1993) 178 CLR 217, the failure of an accused to give evidence or to lead evidence will only be relevant in limited circumstances. It is not necessary for the purpose of these proceedings that I examine such circumstances, but they are referred to in some detail in the judgment of Mason CJ, Deane and Dawson JJ in Weissensteiner and the particular facts of that case provide a chilling example of the circumstances in which the relevant principles are to be applied. It is arguable whether the factual situation which applies in the case of these proceedings and the nature of the evidence given to date may impact upon any finding adverse to the defendant which could be made in the absence of any evidence called on behalf of the defendant. However, I have not reached any concluded view about this matter. 112 In his submissions Mr Skinner emphasised that these were summary proceedings by a superior court and, presumably, the discretionary power to dismiss referred to by McGarvie J in Wilson v Kuhl did not apply. It was Mr Skinner's submission that once a court had determined to reject a no case submission, the trial should be allowed to run its course. For this proposition Mr Skinner relied upon the decision of the English Court of Appeal in Reg v Galbraith (1981) 1WLR 1039, Attorney General's Reference (No 1) (1983) and R v R, previously referred to. (I must say that I was surprised to receive this submission from Mr Skinner because it does not accord with my understanding of the basis upon which criminal proceedings are conducted in New South Wales.) 113 I must say also, with respect, that I find nothing in these three authorities which would detract from the right of a jury to determine a matter on a factual basis at the end of a prosecution case or detract from the right of a judge of fact to come to a similar view. Indeed, the strongest statement in support of Mr Skinner's submission is that found in the Privy Council in Haw Tua Tau, to which I have previously referred. Again, what was said by the Privy Council in that case was the subject of detailed comment by the Full Court of the Supreme Court of South Australia in The Queen v Bilick to which I have earlier referred. 114 Mr Skinner also directed my attention to Blackstone's Criminal Practice 1999 an authoritative English text. Research undertaken by Mr Skinner was to the effect that in England summary trial can only be conducted by magistrates and that there is no jurisdiction for summary trials to be conducted by a superior court of record. There is a suggestion in Blackstone's Criminal Practice (at 1499) dealing with submissions of no case to answer that once the prosecution has raised sufficient evidence to rebut a no case to answer submission, a magistrate should allow the trial to run its course rather than acquitting. Perhaps the learned authors had in mind what was said by the Privy Council in Haw Tua Tau although no reference is made specifically to that decision. However, the totality of the material on the no case to answer submission in that text occupies less than one page and I do not accept it as representing a detailed analysis of the relevant principles or authorities in this area. 115 On one view of it, the prosecution having closed its case, the strength of the prosecution case could not theoretically increase. I am aware that parties to litigation proceedings sometimes advance their cases during the course of presentation of an opponent's case; for example, evidence called by a defendant may allow implications to be drawn which may favour the prosecution case. However, one has to balance as against this the exhortation to conduct proceedings speedily, efficiently and cost-effectively against an over-arching background which ensures to the fullest extent possible justice to all parties. 116 Having considered the authorities to which I have referred and the nature of the proceedings I intend to proceed on the basis as formulated in Benney v Dowling. I am unable to discern any relevant distinction between these proceedings and proceedings of a summary nature brought before a magistrate in terms of the processes utilised by magistrates in a pragmatic manner in order to determine proceedings speedily, efficiently and cost effectively. Lest either the prosecution or the defendant consider that they have not had an opportunity of directing the attention of the Court to the state of the evidence in connection with this process I intend standing over the proceedings to enable submissions to be made.

ORDERS 117 I make the following orders:

Each of the summonses in matters numbers 5404 and 5405 of 1999 is dismissed.
I find that the defendant has a case to answer in summons matter 5406 of 1999.
The prosecutor is directed to file and serve written submissions within 7 days as to whether on the state of the evidence contained within the prosecution case that case has been proven beyond reasonable doubt. The defendant is directed to file and serve any written submissions on which it wishes to rely in reply within 14 days.
Costs are reserved.

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