WorkCover Authority of NSW (Inspector Simpson) v CNH Australia Pty Ltd

CATCHWORDS: Occupational health and safety - admissibility of expert witness statements pursuant to s 79 of the Evidence Act considered - consideration as to specialised knowledge for the purposes of s 79 of the Evidence Act - principles considered - Australian and international Standards admitted subject to weight and in the context of being satisfied as to specialised knowledge - publications relied upon not only as basis for expert opinion expressed but also as evidence of truth of their content - s 60 of the Evidence Act applicable - application for direction under s 136 of Evidence Act to limit use of evidence in publications considered and rejected - admissibility of publications relied upon by expert witness that were not available at or before the date of the alleged offences admissible as evidence of risk to safety known at the time of the alleged offences - evidence objected to directed to statutory defence of reasonable practicability - ultimately a question of weight - whether the publications in issue should be excluded pursuant to s 135(a) or (c) of the Evidence Act - balancing exercise between probative value and unfair prejudice relevant to s 135(a) and s 137 of the Evidence Act considered - discretion to exclude under s 135(a) refused - no basis to exclude publications under s 135(c) with exception as to part of one publication - evidence of expert opinion relevant to offence as pleaded - statements admitted subject to weight and rulings - rulings made.

Evidence Act 1995 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Adler and anor v Australian Securities and Investments Commission (2003) 46 ACSR 504 Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Limited (Unreported, FCA, 31 July 2002) Clark v Ryan (1960) 103 CLR 486 D F Lyons Pty Limited and ors v Commonwealth Bank of Australia (1991) 28 FCR 597 Drake Personnel t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 HG v R (1999) 197 CLR 414 John Fazio v The Crown: SCCRM-97-29 Judgment No 6196 (1997) 69 SASR 54 Koninklijke Philips Electronics NV and anor v Remington Products Australia Pty Limited [2000] 100 FCR 90 Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 O'Brien v Gillespie and ors (1997) 41 NSWLR 549 Onetech Pty Limited v Shaw [1999] WASCA 289 CASES CITED: Papakosmas v The Queen (1999) 196 CLR 297 PQ v Australian Red Cross Society and ors (1992) 1 VR 19 Quick v Stoland (1998) 87 FCR 371 R v Carusi (1997) 92 A Crim R 52 R v Mallah (2005) 154 A Crim R 150 R v Shamouil [2006] NSWCCA 112 R v Welsh (1996) 90 A Crim R 364 Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354 Velevski v The Queen (2002) 76 ALJR 402 Ward v The Ritz Hotel (London) Limited [1992] PIQR 315 Wright v Edgell Birdseye No 53/1992: Judgment No B65/1995 Zaknic Pty Limited v Svelte Corporation Pty Limited and ors (1995) 61 FCR 171

HEARING DATES: 15/2/2006, 16/2/2006, 17/2/2006, 20/2/2006, 21/2/2006, 22/2/2006, 23/2/2006, 24/2/2006, 10/4/2006, 11/4/2006, 12/4/2006, 21/4/2006, 26/6/2006 and 27/6/2006.

PROSECUTION: Mr D Buchanan SC and Mr D Jordan of counsel SOLICITORS: Carroll & O'Dea

CNH AUSTRALIA PTY LIMITED: Mr B Hodgkinson SC and Mr M Shume of counsel SOLICITORS: Coleman and Greig

LEGAL REPRESENTATIVES: DAVIBRAY PTY LIMITED: Mr A Britt of counsel SOLICITORS: Gordon Garling Moffitt

RAYNJUNE PTY LIMITED: Mr L King SC and Mr R Royle of counsel SOLICITORS: Leitch Hasson Dent

Matter No IRC 3257 of 2004 WorkCover Authority of New South Wales (Inspector Simpson) v CNH Australia Pty Limited (formerly Case Corporation Pty Limited)

Prosecution arising under s18(1) of the Occupational Health and Safety Act 1983

Matter No IRC 3258 of 2004 WorkCover Authority of New South Wales (Inspector Simpson) v Davibray Pty Limited as Trustee for B & S Carruthers Trust trading as Carruthers Machinery Co.

Prosecution arising under s11(1) of the Occupational Health and Safety Act 2000

Matter No IRC 3335 of 2004 WorkCover Authority of New South Wales (Inspector Simpson) v Raynjune Pty Limited

Prosecution arising under s8(1) of the Occupational Health and Safety Act 2000

1 In these proceedings to date the prosecution have sought to tender four expert reports prepared by Professor Stephen Johnston. I have conditionally admitted them subject to Professor Johnston's evidence and objections raised. I now rule in relation to those disputed reports, in whole or in part. 2 Professor Johnston has been called by the prosecution as an expert witness predominantly focussing on the fields of mechanical engineering, machine design and occupational health and safety. Professor Johnston does not limit his expertise to those areas, identifying additional fields of specialised knowledge that he possesses and upon which he has drawn to express the opinions that he does in his reports. In brief form, those areas were identified by him as follows: · fluid mechanics; · solid mechanics; · dynamics of machinery, in particular kinematics and kinetics; · machine design; · industrial design involving ergonomics; · materials handling; · applied mechanical engineering; · human factors engineering; · occupational health and safety including the use and limitation of relevant Australian codes and standards; and · the philosophy of engineering and the philosophy of technology. 3 In expressing his opinions, Professor Johnston also refers to matters relating to electronic and electrical circuitry. His asserted specialised knowledge is more in the field of electrical circuitry rather than electronic circuitry. The relevant differences as between electrical and electronic circuitry was never teased out in evidence. In any event, the combine harvester at the centre of the present offences has an electrical circuit whereas different and later models of the same brand of combine harvester rely on an electronics circuitry. Reliance for Professor Johnston's expertise in electrical circuitry is that he taught electrical engineering to mechanical engineers at undergraduate level and undertook a six month course in industrial automation at Masters level 'some time ago'. 4 The level of knowledge and experience underpinning Professor Johnston's claimed expertise in electronic circuitry was expanded upon in that he stated he had enough expertise to appreciate the significance of an electronics circuit but not to interpret it in detail. In relation to electrical circuitry, he acknowledged that he had never designed such circuitry for a machine and that he would defer to an electrical engineer for expert knowledge about that aspect of machine design. He does however assert, as I would express it, specialised knowledge as to the general principles of electrical circuitry sufficient for the purpose of the opinions he has expressed relating to that issue in these proceedings. 5 Professor Johnston has a Bachelor of Mechanical Engineering (Honours) from the University of New South Wales obtained in 1961 followed by a Masters of Engineering from the same university in 1967. He graduated with a Certificate in Higher Education from the University of Technology in Sydney in 1997. In 1999, he was awarded the Boeing Medal for Excellence in Engineering Education by the Australasian Association for Engineering Education and in 2002 he completed his Doctor of Philosophy by thesis at the University of Technology. His PhD topic was Engineering and Society: Broadening the Discourses of Engineering Practice. 6 In addition to his academic qualifications, Professor Johnston has supplemented that by relevant professional membership of bodies such as the Institute of Engineers of Australia of which he is currently a Fellow and the Australasian Association for Engineering Education, amongst others. 7 Professor Johnston has gained on the job experience both at undergraduate and graduate level, particularly, it would appear, in the design and implementation of machinery and equipment for use in diverse industries. 8 Professor Johnston's academic research work at undergraduate and Masters level involved turbomachinery design leading to research in the area of fluid dynamics. 9 Additionally, Professor Johnston's work experience between 1965-1970 involved participation in designing and commissioning plant and equipment in a number of diverse heavy duty industries including engineering design work on rail equipment, a grain elevator/thrower for stacking wheat into temporary storages and materials handling equipment for mining applications. 10 Since 1971, Professor Johnston has been associated with the Faculty of Engineering at the University of Technology, Sydney in the roles of Lecturer, Senior Lecturer and Associate Professor until assuming his role of Adjunct Professor in or about 2001 to the present. From 1991 to 1996, Professor Johnston was Head of the School of Mechanical Engineering at the University of Technology and from 1998 to 1999 he was the Director of the Engineering Practice Programme at the University. As Professor Johnston detailed in his curriculum vitae, that is a programme directed towards active student engagement with the learning opportunities that diverse workplaces present and which works towards aligning the assessment of student experience with professional competencies developed for the Institute of Engineers in Australia. 11 During his period as a Lecturer with UTS, Professor Johnston lectured in materials handling and was involved in projects for the Grain Elevators Board. 12 In addition to his full-time lecturing position at UTS, Professor Johnston has held part-time or visiting appointments at the University of New South Wales lecturing in mechanics and at the then Cumberland College of Health Sciences lecturing in physics and biomechanics. 13 Professor Johnston has also travelled and lectured extensively abroad on subjects associated with his areas of expertise. He described his professional and academic areas of activity, inter alia, as follows: My teaching areas have included applied mechanics, design and solid mechanics, including some bio-mechanics and ergonomics. A deep interest in the social context and impact of engineering led to the development of subjects in the areas of Appropriate Technology, Engineering and Society, and for supporting students in preparing for engineering experience and in reviewing their learning during that experience.

During 1983 my interest in design led me to sit in on a number of subjects in Industrial Design at the Sydney College of the Arts. ... The School subsequently became part of UTS, and I have maintained a connection with its work, partly through my membership for many years of the School Board and then the Faculty Board. I identify design as the core engineering activity. Although my own contribution has been more in terms of review and appreciation of design work by others, over many years I have developed my understanding of the design process and kept in close touch with colleagues and ex-colleagues who are active in the design.

My more than 60 Published Papers and Conference Presentations and over 120 Research and Consulting Reports cover areas including Occupational Health and Safety, Materials Handling, Mechanical Design and Fatigue, Engineering Education, Appropriate Technology, and Philosophy of Engineering. My engineering consulting is in the areas of machine design and assessment of machinery, and on occupational health and safety matters, as can be seen from the more detailed material below.

For many years I have given lectures on Occupational Health and Safety as part of one or more of the mechanical engineering design subjects, and in 2004 I was part of an AccessUTS team preparing teaching material on "Safe Design" for the National Occupational Health and Safety Council. This material is designed to introduce engineering students to changes in engineering design associated with the move from a "Safe Worker" model to one based on a "Safe Workplace". The Safe Design approach reflects the cultural and legal changes associated with the move from "negligence" to "strict liability". These issues are clearly relevant to this matter.

14 From 1989 to the present, Professor Johnston has been a director of Jacana Consulting Pty Limited. That is a company set up to carry out strategic, engineering, economic and environmental assessment of projects from a social and environmental perspective. Clients of that corporate entity have included the Railway Industry Council, NRMA and local government bodies in Sydney, Brisbane, Auckland and Hong Kong. Major studies which Jacana Consulting has been involved in have focussed on public transport systems, energy and waste planning and management and ecological sustainability. On a reading of his curriculum vitae, the extent of Professor Johnston's involvement in those projects is unclear and he was not asked to elaborate upon it in his evidence before me. 15 From 1973 to the present, Professor Johnston has been a consultant with accessUTS Pty Limited. accessUTS is the University of Technology's expert advice and consulting company. As a consultant with that entity, Professor Johnston has undertaken some seventy five engineering consulting reports. Those reports have been mainly in the areas of mechanical design involving occupational health and safety considerations and materials handling. The consulting projects which Professor Johnston has been engaged in span the period 1986 to 2005 and include the reports prepared for the matters currently before me. 16 The four reports prepared by Professor Johnston in these proceedings are as follows: (i) Report 1 dated 31 August 2004; (ii) Report 2 dated 24 November 2005; (iii) Report 3 dated 11 January 2006; (iv) Report 4 dated 30 January 2006. 17 In preparing his first report, Professor Johnston was provided with the eleven volumes of the prosecution brief as well as copies of the specific charges laid by the prosecution. 18 For the purposes of his first report, Professor Johnston confirmed that the relevant background factual circumstances of the matters as advised to him were as follows: 1.4.1 At about 10:30 am on 8 December 2003, Mr Rodney Langfield was injured while working on a Case 2388 Axial Flow Combine Harvester. 1.4.2 Mr Langfield's injury took place while he was working in the grain tank (or grain bin) of the harvester with the unloader screw augers running. Mr Langfield slipped and his foot was caught by an unguarded section of one of the horizontal augers. 1.4.3 At the time of the injury, Mr Langfield was employed by Raynjune Pty Limited at "Glencoe", a property between Canowindra and Cowra.

1.4.4 The harvester, Serial Number JJC266995, was manufactured in the USA and imported to Australia by Case Corporation Pty Limited (Case IH), which in 2002 became CNH Australia Pty Limited (CNH Australia). 1.4.5 The harvester was originally sold to Mr and Mrs G Whitty in November 1999 by Farm Implement Tractor and Motor Company Pty Limited, an authorised dealership of Case IH. 1.4.6 In September 2001 the harvester was purchased from Mr and Mrs Whitty by Davibray Pty Limited, trading as Carruthers Machinery Co, another authorised dealership of Case IH. Carruthers Machinery Co overhauled the harvester and in November 2001 they sold it to Raynjune Pty Limited, as a second-hand machine. 1.4.7 The Case 2388 harvester is still a current model, distributed in Australia by CNH Australia Pty Limited. 1.4.8 A WorkCover Inspector, Ms Karen Simpson, investigated the circumstances of Mr Langfield's injury. Following this investigation, Ms Simpson initiated a prosecution of Raynjune Pty Limited, Davibray Pty Limited and CNH Australia Pty Limited. The prosecution was based on Inspector Simpson's assessment that the guarding of the machine did not meet NSW legal requirements. 19 The further reports provided by Professor Johnston were to deal with specific additional questions posed by the prosecutor including the applicability of specific Australian and international standards. 20 As a general description of the reports prepared, Professor Johnston was asked to express his opinion on certain aspects of the particular combine harvester in question with specific reference to the grain bin of that harvester and the augers that form part of the design and operational function of the grain bin. In doing so, Professor Johnston was also asked to consider the particular machine in question when compared with similar type machines produced by other agricultural machinery companies with specific reference to certain design and safety features relevant to the grain bin including, in particular, the guarding of the augers in the grain bin. 21 Finally, Professor Johnston was asked to express his opinion on the applicability and relevance of certain Australian Standards to relevant aspects of the machine in question with particular emphasis on the grain bin and the guarding of the attendant augers. 22 Reference to guarding of the augers in the grain bin is used by me in this judgment to refer to the physical structures that enclose the augers in the grain bin in whole or in part. 23 In tendering Professor Johnston's reports, the prosecution has already identified those parts of the reports upon which it does not rely except to disclose matter referred to by Professor Johnston. Those parts are known to all the parties and do not require any further consideration by me. 24 There are three corporate defendants in these proceedings and each has lodged objections to Professor Johnston's reports. Some of the objections can be explained by reference to the dates of the offences alleged with respect to each of the three defendants. I will return to that issue shortly. 25 Adopting the most general of approaches, Professor Johnston's reports could be said to be prima facie admissible. That is, the reports constitute evidence that, if accepted, 'could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding': see s 55 of the Evidence Act (1995). Having said that, it should be noted at this point that, in addition to objecting to the admissibility of Professor Johnston's reports on 'specialised knowledge' and associated grounds, objection is taken by Raynjune to all of the Professor's reports on the basis of relevance. I will consider that issue in more detail later in this judgment. 26 Clearly, prima facie admissibility of the reports are affected by s 76 of the Evidence Act that renders evidence of an opinion inadmissible. The exception to that rule is provided in s 79 of the Evidence Act that provides: If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge. 27 The objections raised to Professor Johnston's reports on behalf of CNH, supported by counsel representing Davibray and Raynjune go, in the first instance, to the submission that Professor Johnston does not have the specialised knowledge to express the opinions that he does as required by s79 of the Evidence Act (1995). On that basis, objection is taken to the whole of Professor Johnston's reports. 28 In the alternative, objection is taken to parts of the reports identified where it is said Professor Johnston's expertise/specialised knowledge is not such as to permit him to express the opinions that he does as to the specific matters canvassed. 29 Further, it is said, objection is based upon Professor Johnston's asserted reliance on data that came into existence after November 1999. That objection is particularly pressed on the part of the defendant CNH given that the offence alleged with respect to it is said to have occurred between August and November 1999. A similar objection is raised on behalf of Davibray but centred on the alleged date of it's offence, which is November 2001. 30 The above objection goes to the fact that, in expressing the opinions he does, Professor Johnston has relied upon reference to other machines and, it is said, technological developments, that had not been developed at the time of the alleged offences with respect to CNH and Davibray. By referring to them and relying upon papers, articles and texts that themselves were not available in 1999 or 2001 (as applying to CNH and Davibray respectively) he has expressed the opinions that he now does. In other words, it was submitted, Professor Johnston is expressing opinions based on learning, understanding, information and technological developments that came into existence after November 1999 (with respect to CNH) and after November 2001 (with respect to Davibray). 31 Further objection is raised, particularly to the second, third and fourth reports of Professor Johnston in that it was said, in large part they simply represent a regurgitation of opinions already expressed in the first report and, as well, they are nothing more than a drawing together by Professor Johnston of a collection of other people's learning by way of reference to reports, articles and certain Standards. In doing so, it was submitted, Professor Johnston is relying upon opinions expressed by others in academic papers, journals and the like, post 1999 with respect to CNH and, in the case of Davibray, post 2001. Accordingly, it was said, in expressing the opinions that he does, the second, third and fourth reports are largely speculative or speculation being essentially based on untested hypotheses. 32 Objection is also taken on behalf of the defendants to Professor Johnston's reliance upon the Standards that he refers to in that he cannot be considered an expert in that regard. Further, in referring to some of the Standards, what he has done is draw attention only to those parts of the Standards that suits the particular point he wishes to assert. Given that approach, it was submitted, his reports dealing with certain Standards were ultimately partial in the sense of being an advocate of his own cause. 33 The particular Standards referred to by Professor Johnston and upon which he predominantly relies in expressing the opinions that he does is AS 4024.1 (1996): Safeguarding of Machinery: Part 1: General Principles and AS/NZS 2153 (1997) Parts 1 and 7. That latter Standard is titled Tractors and Machinery for Agriculture and Forestry - technical means for ensuring safety. Part 1 of AS/NZS 2153 deals with general principles and Part 7 deals with combine harvesters, forage and cotton harvesters. AS/NZS 2153 Parts 1 and 7 are identical with and have been reproduced from ISO 4254-1 (1989) and ISO 4254-7 (1995) respectively. 34 There are other Australian and international Standards referred to by Professor Johnston but more in the nature of adjunct references in support of the opinions he expresses in relation to AS 4024.1 and AS/NZS 2153 Parts 1 and 7. 35 On behalf of Raynjune in particular and in addition to objections taken to the whole of Professor Johnston's reports, objection is also taken to parts of the first report on the basis that the opinion expressed goes to the ultimate issue to be determined by the Court. In support of that objection, reliance is placed on the decision of Levine J in O'Brien v Gillespie and ors (1997) 41 NSWLR 549 at 557 where his Honour said, relevantly, in relation to the matter before him: Reviewing the state of the law before the enactment of the Evidence Act and such authorities as exist on that legislation and considering particularly the nature of the proposed testimony of Mr Penhall, I can come to the view that s 80 does not and cannot represent a complete codification of the law of evidence to the exclusion of the development of a body of principles referred to in the cases decided prior to its enactment. ... 36 Finally, in raising objections to significant parts of Professor Johnston's reports, the defendants submit that the Court should exercise it's discretion to refuse to admit certain evidence pursuant to s 135 of the Evidence Act. The written submissions received did not identify which particular arm of s 135 the defendants relied upon in making such a submission. Further oral submissions identified s 135(a) and (c) as the basis for such objections. I will deal with those submissions later in this judgment.

37 The approach to be taken to expert opinion evidence and it's admissibility pursuant to s 79 of the Evidence Act is relatively well settled. It was considered in some detail by Heydon JA (as he then was) in Makita (Australia) Pty Limited v Sprowles (2001) 52 NSWLR 705 at para [85] where his Honour stated: So far as the opinion is based on facts observed by the expert, they must be identified and admissibly proved by the expert; and so far as the opinion is based on assumed or accepted facts, they must be identified and proved in some other way. It must be established that the facts on which the opinion is based form a proper foundation for it and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached. That is, the expert's evidence must explain how the field of specialized knowledge in which the witness is expert, by reason of training, study experience, and on which the opinion is wholly or substantially based applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialized knowledge. If the court cannot be sure of that, the evidence is, strictly speaking, not admissible and, so far as it is admissible, of diminished weight. 38 The above dicta has been the subject of further and detailed consideration at first instance and appellate level. If anything, that later consideration has placed his Honour's observations in Makita at [85] above into an appropriate evidentiary context for the proper consideration and admissibility of expert opinion evidence that in no way detracts from the fundamental principles that s 79 of the Evidence Act requires. 39 The approach enunciated by Heydon JA in Makita was considered by the Full Court of the Federal Court in Sydneywide Distributors v Red Bull Australia Pty Limited (2002) 55 IPR 354. It was described by Branson J at [7] as constituting a 'counsel of perfection'. More relevantly, in the same decision, Weinberg and Dowsett JJ, by reference to [85] in Makita as set out above, expressed the following approach as properly reflecting the reception of expert opinion evidence: [87] The use of the phrase "strictly speaking" in the last sentence should not be overlooked. It may well be correct to say that such evidence is not strictly admissible unless it is shown to have all of the qualities discussed by Heydon JA. However many of those qualities involve questions of degree, requiring the exercise of judgment. For this reason it would be very rare indeed for a court at first instance to reach a decision as to whether tendered expert evidence satisfied all of his Honour's requirements before receiving it as evidence in the proceedings. More commonly, once the witness's claim to expertise is made out and the relevance and admissibility of opinion evidence demonstrated, such evidence is received. The various qualities described by Heydon JA are then assessed in the course of determining the weight to be given to the evidence. 40 The above approach was subsequently considered and applied by Nicholson J in Australian Competition and Consumer Commission v Emerald Ocean Distributors Pty Limited (Unreported, FCA, 31 July 2002) at [6] and [7]. 41 Counsel for the defendants submitted that the approach enunciated in Red Bull is properly to be distinguished from the circumstances before me in considering Professor Johnston's reports. In making that submission, counsel would appear to be relying on the views expressed by Branson J in Red Bull at [9] as follows: It is no longer common practice for a witness from whom expert opinion evidence is intended to be adduced to be examined by opposing counsel on the voir dire . This may be because, perhaps regrettably, the practice has come to be regarded as of little practical value where the judge, and not a jury, is the trier of facts. As a result the judge is likely to be asked to rule on the admissibility of the affidavit, report or oral evidence of a witness put forward as an expert before the witness is subject to any questioning by opposing counsel. For this reason, it may prove to be the case that evidence ruled admissible as expert opinion will later be found by the trial judge to be without weight for reasons that, strictly speaking, might be thought to go to the issue of admissibility (eg that the witness's opinion is expressed with respect to a matter outside his or her area of expertise or is not wholly or substantially based on that expertise). 42 In the proceedings before me, Professor Johnston has given his evidence and has been extensively cross examined. All prosecution witnesses having been called, the Court is now in a position to make a determination as to the admissibility of Professor Johnston's evidence as an expert. In such circumstances, it was submitted, the principles espoused by Heydon JA in Makita should be strictly applied. 43 Reliance for that submission is placed on the dicta expressed by Gleeson CJ in HG v R (1999) 197 CLR 414 as follows: [43] To paraphrase what was said by Dixon CJ in Clark v Ryan about the expert witness in that case, the evidence the defence sought to lead from Mr McCombie really amounted to putting from the witness box the inferences and hypotheses on which the defence case wished to rely. [44] This was not a trial by jury, but in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79, to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinions", (sometimes merely their own inference of fact), outside their field of specialised knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted. 44 In relying on the above passage the clear inference as submitted was that there was a stricter test for admissibility of expert opinion evidence in criminal proceedings heard by a judge sitting alone rather than the approach referred to by Branson J in Red Bull at [9]. That 'stricter test', it was submitted, was exemplified by a strict adherence to the principles enunciated by Heydon JA in Makita at [85]. 45 As a reading of HG v R makes clear, the above dicta of Gleeson CJ has to be considered in light of the factual circumstances of the particular case underpinning his Honour's statement. That is, as described in Adler and anor v Australian Securities and Investments Commission (2003) 46 ACSR 504 at [631], 'the disconformity in HG v R ... to which his Honour referred was gross ...'. No such situation arises here. 46 Further, it would appear to me that counsel for CNH is being inappropriately selective in relying on but one aspect of Branson J's dicta in Red Bull as a reading of paras [8] to [10] in the judgment makes clear. More importantly, at [1] her Honour concurs generally with the reasons expressed by Weinberg and Dowsett JJ. 47 It would be reasonable to infer, in my view, that such agreement, when taken with her Honour's own comments, would embrace their Honours' dicta at [87] in Red Bull as set out at [39] above. 48 More importantly, the approach enunciated by Weinberg and Dowsett JJ, supported by Branson J, was reinforced and supported by the Court of Appeal in Adler v Australian Securities and Investments Commission at [631] as follows: Whether an opinion has been shown to be based on the specialised knowledge is a question of fact, and s 79 provides that it is sufficient that it is substantially based on that knowledge. What is required by way of the explanation of which Heydon JA spoke in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at [85] will depend on the circumstances . The disconformity in HG v R (1999) 197 CLR 414; 160 ALR 554 to which his Honour referred was gross, in that the psychologist's evidence went to when the complainant was abused and who abused her, outside a psychologist's expertise and based on matters other than a psychologist's expertise. Other circumstances will be quite different. And, as was said in Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd (2002) 55 IPR 354, absolute certainty that the opinion is based on the specialised knowledge is not required (at [14]) and many of the stated qualities of the opinion evidence by Heydon JA "involve questions of degree, requiring the exercise of judgment" (at [87]). (emphasis added) 49 Adopting the above approach and in considering the evidence of Professor Johnston to determine its admissibility pursuant to s 79 of the Evidence Act, it is sufficient, in my view, that I be satisfied on the balance of probabilities that Professor Johnston has drawn his opinion from known or assumed facts by reference wholly or substantially to his specialised knowledge: See s 142 of the Evidence Act. 50 There is one other matter to consider before turning to Professor Johnston's asserted specialised knowledge. That is, the objection raised by counsel for Raynjune to parts of Professor Johnston's first report on the basis that the opinion expressed fell within the well known 'ultimate issues' principle. Reliance was placed on the decision of Levine J in O'Brien v Gillespie and ors referred to above. 51 Having considered his Honour's conclusion in relation to s 80 of the Evidence Act, the ultimate issue rule, I would have to say, respectfully, that I do not agree with his Honour's conclusion on that point. Where expert opinion evidence is given that goes to 'a fact in issue or ultimate issue', it is, in my view, no longer to be considered inadmissible. Section 80 of the Evidence Act makes it clear that the previous common law and ultimate issues rules are abolished. In that respect, I concur with the view expressed by Branson J in Red Bull at [18]. 52 It should be noted that in O'Brien v Gillespie his Honour concluded that the opinion evidence sought to be admitted was not expert opinion such as to satisfy the test for admissibility under s 79 of the Evidence Act. Professor Johnston's specialised knowledge and considerations arising 53 In the reports prepared by Professor Johnston for the current proceedings, the opinions he has expressed are based predominantly, as I would understand it, on mechanical engineering principles allied with Professor Johnston's knowledge of machine design going to functionality and safety considerations in the operation of machinery generally. 54 In relation to the matters before me, the word 'functionality' is to be understood to refer to the operational function of the machine in question but with particular regard to the speed and effectiveness of the loading and unloading of the grain bin. Further, it is clear, integral to the overall functionality of the grain bin is the type, size and placement of the auger guards in the grain bin. 55 The notion of specialised knowledge for the purposes of s 79 of the Evidence Act was highlighted in the judgment of the High Court in Velevski v The Queen (2002) 76 ALJR 402 and particularly at 416 where Gaudron J stated: The concept of ' specialised knowledge' imports knowledge of matters which are outside the knowledge or experience of ordinary persons and which is 'sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience ' (citing Clark v Ryan (1960) 103 CLR 486 at 491 per Dixon CJ; Murphy v The Queen (1989) 167 CLR 94 at 111 per Mason CJ; Farrell v The Queen (1998) 194 CLR 286 at 292-293 per Gaudron J and at [28]-[29] per Kirby J; and R v Bonython (1984) 38 SASR 45 at 46-47 itself cited with approval in HG v The Queen (1999) 197 CLR 414 at 432 by Gaudron J). 56 That Professor Johnston has specialised knowledge outside the experience of ordinary persons is without doubt. His courses of study in mechanical engineering have clearly been added to by professional experience in areas related to diverse aspects of mechanical engineering and machine design embracing safety considerations that would have added to his initial specialised knowledge base. 57 The extent of Professor Johnston's knowledge and experience in a number of areas emanating from his primary expertise in mechanical engineering is well established by reference to his curriculum vitae earlier referred to. In cross examination, no challenge was made to those areas of Professor Johnston's professional background detailing, relevantly, his employment history, professional and academic areas of focus in the field of applied mechanics and machine design, amongst others, and his participation as primary or participating author in published books, journals and conference papers relevant to his areas of claimed expertise. They are, on any view, considerable. 58 In cross examination, issue was taken as to the extent of Professor Johnston's specialised knowledge and experience in relation to electrical and electronic circuitry. Professor Johnston has qualified his expertise in that area and I have earlier referred to it. I am satisfied he is able to express an opinion as to general principles relevant to electrical and electronic circuitry to the extent that such a matter has been raised in these proceedings. 59 I am, however, not satisfied that Professor Johnston is able to express an opinion as to precise steps that would need to be taken to design or modify an electrical or electronic circuit as an integral component of machine design. By his own admission, that is a matter about which he would defer to an electrical engineer. 60 Issue was taken with the Consulting Reports prepared by Professor Johnston over the period 1986 to 2005, of which there were some seventy five identified, in that none of them dealt with combine harvesters incorporating grain bins. In identifying them, Professor Johnston highlighted approximately twelve (excluding the ones prepared for these proceedings) which he stated to be generally relevant to materials or grain handling. In cross examination, Professor Johnston conceded that none of his prior consulting reports had involved consideration of mobile combine harvesters incorporating grain bins such as the machine involved in the matters now before me. Notwithstanding that, with the exception of the four prepared for these proceedings, approximately twelve of those consulting reports involved consideration of machine design across a wide variety of occupational activity. 61 For example, Professor Johnston has been involved in the preparation of consulting project reports that have required considerations and opinions going to machine design relevant to safety related issues involving machinery as diverse as a pneumatic conveyor, front-end loaders, potato bins, the handling of fish boxes, the Cat RD6 bulldozer, tractor seat runners, the walk behind mower and ride-on motor mowers. One report produced in 1996 followed Professor Johnston's appointment by the Supreme Court of New South Wales as 'a referee to enquire and report as to the cause, if any, of the overheating of the plaintiff's bulldozer'. As Professor Johnston said, his role was 'to review the overheating problem and in the process to make sense of a number of conflicting expert reports'. 62 The consultant project reports referred to, as I would understand it, were all directed to drawing upon Professor Johnston's expertise in the areas of mechanical engineering and machine design, particularly from the perspectives of occupational health and safety and materials handling. 63 No challenge was made to any aspect of those consulting reports. To put it another way, no question was put to Professor Johnston in cross examination that undermined the reliance placed by him on those specific reports, amongst others, going, as he asserted, to further establishing his expertise in mechanical engineering and machine design with particular emphasis on occupational health and safety and materials handling. 64 Further, in expressing the opinions that he does, in addition to his knowledge and experience in mechanical engineering, Professor Johnston stated that he relied upon his expertise in occupational health and safety in the context of machine design. 65 It is not entirely clear to me what Professor Johnston means when he asserts an expertise in occupational health and safety. That is a very broad and general subject matter in itself capable of complex detail across diverse industries. I am not persuaded Professor Johnston is an expert on all aspects of occupational health and safety. I am, however, satisfied that within the accepted parameters of mechanical engineering involving machine design, Professor Johnston has the knowledge and experience to enable him to express an opinion as to the principles relevant to safety considerations in machine design generally. 66 Overall, I am satisfied Professor Johnston has sufficient knowledge and experience in relation to mechanical engineering and machine design as well as safety factors relevant to machine design such as to equip him to express the opinions that he does in relation to those aspects of the machine in question. There is, however, an important rider to be placed on that conclusion. 67 It is clear that one of the fundamental issues to be determined in these proceedings will be the defence of 'reasonably practicable' as provided in s 53(a) of the Occupational Health and Safety Act 1983 with respect to CNH and s 28(a) of the Occupational Health and Safety Act 2000 with respect to Davibray and Raynjune. That defence, as I would anticipate, will, inter alia, centre around factors designed to establish that, given all the circumstances, any alteration to the current guarding of the augers in the grain bin was and is, not 'reasonably practicable'. One of the principal reasons, as I anticipate, will go directly to the issue of the functionality of the grain bin as earlier described. 68 In anticipation of such a defence, Professor Johnston has been asked to express his opinion as to how the risk to safety should have been better addressed by the respective defendants, particularly in relation to the guarding of the exposed augers in the grain bin. 69 In doing so and relying on his specialised knowledge, Professor Johnston has pointed to a number of design proposals, particularly as to guarding, designed to address the alleged risk to safety that the exposed augers in the grain bin of the machine in question currently represent. It is those proposals, inter alia, that Professor Johnston has expressed an opinion about relying on his specialised knowledge of mechanical engineering and machine design allied to occupational health and safety. 70 The proposals that Professor Johnston has expressed an opinion about involve changes to the guarding that currently exists to the augers in the grain bin, particularly the in-feed and horizontal augers. Arising from his evidence and cross examination, it is abundantly evident that design decisions as to the guarding of augers in combine harvester grain bins is significantly influenced by the impact or effect that such guarding has on the efficient and effective grain flow into and out of the grain bin. In other words, proposals about increasing and/or altering the current guarding in the grain bin in question brings with it significant argument going to the 'reasonable practicability' of such proposals relevant to the functionality of the grain bin as far as ensuring relatively unimpeded grain flow into and out of the bin. 71 While Professor Johntson has specialised knowledge about machine design allied to materials handling, his practical experience with grain flow issues as part of assessing the functionality of a grain bin is limited to his observations of a combine harvester in operation on two occasions for a limited duration for the purposes of preparing his reports in these proceedings. 72 In putting forward a number of diverse guarding proposals, Professor Johnston was unable to say with any certainty whether any of those proposals would affect the functionality of the machine and the grain bin in particular. By his own admission they are, in some respects, entirely hypothetical and/or untested or are proposals at the early research and design stage. In short, they have had no or limited testing in the field which is critical in determining the ultimate functionality and practicability of such proposals. Accordingly, at this stage, it would appear those particular guarding proposals would be unable to be relied upon to any reasonable degree as far as the Court being satisfied that the prosecution have been able to rebut any statutory defence raised as to the reasonable practicability of the particular guarding proposals put forward by Professor Johnston. 73 As Professor Johnston was unable to say the extent or otherwise to which the particular guarding proposals he identified would affect the functionality of the machine and in particular the grain bin, counsel for the defendants submitted he had strayed outside his area of specialised knowledge. In short, it was said, Professor Johnston had resorted to putting inferences of fact outside his field of specialised knowledge as identified in Clark v Ryan (1960) 103 CLR 486 at 492. 74 I have to say I do not agree. I have already identified Professor Johnston's field of specialised knowledge underpinning the opinions expressed. In relation to the guarding proposals put forward, he acknowledged functionality as a fundamental criterion if they are to be reasonably practicable and function effectively. In doing so, he has further and, in my view, quite properly acknowledged that he is unable to express a view as to the functionality of those proposals for the reasons explained. I am unable to see how that translates into Professor Johnston putting inferences of fact in support of any particular proposition the prosecution might wish to rely on. 75 The fact that Professor Johnston cannot express an opinion as to the functionality of the particular proposals he has identified is an issue that goes to weight, not admissibility. 76 Ultimately, they are matters that go directly to the statutory defences available to the defendants and any final view as to the weight to be attached will only be able to be properly determined in light of any evidence, expert or otherwise, to be adduced by the defendants. 77 As earlier indicated, in expressing the opinions that he does, Professor Johnston relies, in summation, on the general principles as enunciated in AS 4024.1 and AS/NZS 2153 Parts 1 and 7. In doing so, counsel for the prosecutor submitted, as recognized Standards, they were admissible in that Professor Johnston relied upon them in expressing the ultimate opinion that he does in relation to the machine in question. In other words, based on his own professional knowledge and experience, Professor Johnston refers to the above identified Standards as correctly stating the principles underpinning the opinions he has expressed. 78 On behalf of the defendants, it was submitted that Professor Johnston could not be considered an expert on those Standards he seeks to rely upon in expressing the opinions that he does. In support of that proposition, counsel pointed to the fact that in providing his first and second reports, Professor Johnston made no mention of AS/NZS 2153.1 and 2153.7. 79 In his first report, Professor Johnston was asked to report on the existing guarding of the grain bin and 'the extent to which they meet or fail to meet New South Wales legal requirements'. He was also asked to suggest ways in which the guarding might be improved without 'prejudicing the performance of the harvester'. 80 In providing his first report, Professor Johnston devoted a section to what he titled 'Relevant Legislation and Standards'. The Standard he identified as being relevant for the purposes of that report was AS 4024.1 - 1996, Safeguarding of Machinery, Part 1: General Principles. A copy of that Standard was produced and is exhibit 53. 81 No mention was made by Professor Johnston to AS/NZS 2153 Parts 1 and 7 in his first report or his second report. In his second report, Professor Johnston was asked to comment on a number of matters 'in relation to the issue of guarding of the horizontal augers'. Those matters were: 1.7.1 Has the issue been dealt with by workplace safety regulators, farmers' organisations or unions in other jurisdictions in Australia, or in overseas jurisdictions such as the United States, Canada, Europe or New Zealand? 1.7.2 Has the issue been referred to in agricultural industry publications?

1.7.3 Has the issue been looked at in the context of negligence or product liability litigation arising from a similar farming accident? 1.7.4 What systems are used by other major manufacturers, such as John Deere, to unload grain from the grain bin on equivalent machines? 82 It was not until his third report that Professor Johnston made reference to AS/NZS 2153 Parts 1 and 7 and only then, it would seem, because his attention was directed to it. In his third report, he was asked to comment on the relevance of AS/NZS 2153 Parts 1 and 7 'to this matter'. 83 It is perhaps surprising that Professor Johnston did not make reference to AS/NZS 2153 in his first report, particularly given that he devoted a section to 'relevant standards'. It would also appear that Professor Johnston was unaware of AS/NZS 2153 until it was specifically drawn to his attention and he was asked to comment as to it's relevance in his third report. 84 Notwithstanding the above, Professor Johnston's apparent lack of ready familiarity with AS/NZS 2153 Parts 1 and 7 up to the time of his third report does not mean that he is unable to bring his specialised knowledge to bear to that particular Standard in considering it's relevance to the issue he has been asked to comment on which, in relation to AS/NZS 2153 Parts 1 and 7, is guarding of augers in grain bins. 85 I am satisfied Professor Johnston has the requisite specialised knowledge based on his training, study and experience in mechanical engineering, machine design and allied safety considerations to enable him to understand, apply and endorse the particular Standards in issue, they being AS 4024.1 and AS/NZS 2153 Parts 1 and 7. 86 Counsel for the prosecutor relied on a number of authorities in support of the admissibility of the Standards in question. Without canvassing all of them for the purposes of this judgment, it is useful nevertheless to refer to some of them. 87 The first is the decision of Wright J of the Supreme Court of Tasmania in Wright v Edgell Birdseye No 53/1992: Judgment No B65/1995, where, in relation to reliance placed by counsel on Standards Association publications, his Honour said at para [38]: It has been my experience in the past that from time to time, counsel for an injured plaintiff has sought to rely upon Standards Association publications as constituting some kind of standard, design or operational criteria, non-compliance with which constitutes prima facie evidence of negligence. This is not necessarily so. Frequently such publications provide valuable guidance within an industry and, on many occasions, engineering or other experts will acknowledge the publication as being an appropriate and recognised authority within a particular field. Such is not always the case however and disputes between experts as to the status and acceptability of published standards is by no means unknown. Without expert endorsement or agreement between counsel an SAA Australian Standards Publication will not normally be admissible in evidence and will certainly not constitute an unassailable basis for a finding of negligence. (emphasis added) 88 On behalf of the prosecutor, it was said that the decision of Wright J in Wright v Edgell Birdseye was authority for the proper admission of the Australian Standards documents before me as part of Professor Johnston's expert opinion reports. Reliance is placed on the words of Wright J in the penultimate paragraph of the passage quoted above and particularly the words 'without expert endorsement.' In other words, counsel for the prosecutor contended, Professor Johnston as an expert has 'endorsed' the Standards documents and as such, they are admissible in evidence as part of the authoritative material upon which he relies to express the opinions that he does. I agree with that submission. 89 Such an approach, it seems to me, is analogous to the approach taken by courts at first instance and appellate level in relation to the admissibility and evidentiary use that may be made of information in authoritative scientific publications. I refer in the first instance to the decision of McGarvie J in PQ v Australian Red Cross Society and ors (1992) 1 VR 19 where his Honour said at page 34: It is made clear in Borowski v Quayle (1966) VR 382 that expert witnesses may not only base opinions they give in evidence on such data, but may give evidence of fact which is based on such data. Expert witnesses may do this although the data on which they base their opinion or evidence of fact will usually be hearsay information in the sense that they rely for such data not on their own knowledge but on the knowledge of someone else.

and further at 34: An expert witness, in relying on data in authoritative publications, is not confined to confirming or correcting a recollection of what is stated in the data. The witness may rely on the data without a previous knowledge of it .... the data relied on may be a statement of fact or opinion. When an expert witness bases evidence on data in an authoritative scientific publication, it is the evidence of the witness which is thus put before the Court. The publication itself is not evidence of the truth of statements it makes as to data. If the witness refers to or quotes from an authoritative publication as correctly stating a fact, what is referred to or quoted is part of the testimony of the witness (authorities excluded). 90 The above passage was relied upon with approval by the Court of Criminal Appeal of South Australia in John Fazio v The Crown: SCCRM-97-29 Judgment No 6196 (1997) 69 SASR 54: paras [41] to [43]. 91 Counsel for the prosecutor also referred to the decision of the Full Court of the Supreme Court of Western Australia in Onetech Pty Limited v Shaw [1999] WASCA 289 at [17] where the Court said: It can be accepted that the Australian Standard, like the British Standard, represents "the consensus of professional opinion and practical experience as to the sensible safe precautions" ( Ward v The Ritz Hotel (London) Ltd (1992) 1 PIQR 315 at 327), but in the end the learned Judge was entitled to have regard to the evidence which related to the Australian Standard and to conclude that whilst the level provided by the Standard "might be quite safe in some pedestrian areas" it might nevertheless be unsafe (as indeed it was found to be) on the barge inside a door where people had to step to enter a room. ... 92 It is clear that in Onetech their Honours accepted the relevant Australian Standard at appellate level. However, it is not clear on a reading of the judgment whether the trial judge had admitted the Standard over objections as to it's admissibility. The clear inference from a reading of their Honour's decision is that this was not the case and that any argument as to the particular Standard in question was it's relevance in determining an employer's liability for negligence in a personal injury action. 93 Notwithstanding that observation, I am satisfied, to the extent Professor Johnston seeks to rely upon the Standards he refers to in support of the opinions that he now expresses, they are admissible. Ultimately, it will be a question of weight to be attached to them, taking into account Professor Johnston's evidence in totality and having regard to the principles applicable to expert opinion evidence. 94 On that basis, I would concur with the decision of the Court of Appeal in Ward v The Ritz Hotel (London) Limited [1992] PIQR 315 where, by majority, (Nourse and McCowan L.JJ.) the Court held in relation to the weight to be attached to British Standards as follows: ... Such standards represented the consensus of professional opinion and practical experience as to sensible safety precautions. Whilst they were not legally binding, they were guides which provided strong evidence of competence at the date when they were issued. ... 95 In his dissenting judgment in The Ritz Hotel, Lloyd LJ said: The judge ...rightly observed ... that the British Standard is no more than a recommendation. It has no statutory force. Failure to comply with the recommendation does not create a cause of action. Obviously it is an important factor. If the judge had ignored it altogether it may be that we should have had to intervene, but he did not. It was for the judge to decide how much weight it deserved in the particular circumstances of this case. 96 Taken together, the principle established is correct in my view. That is, that in admitting AS 4024.1 and AS/NZS 2153 Parts 1 and 7, it is on the basis that they represent the 'consensus of professional opinion and practical experience' but the weight to be attached to them will depend on the circumstances they are relied upon by Professor Johnston in expressing the opinions that he does having regard to his own specialised knowledge and experience. 97 In some limited respects, Professor Johnston's reliance on AS 4024.1 in particular could be said to be selective. I say that in the sense that, as he properly conceded, in considering the applicability of AS 4024.1 as being relevant to the opinions he was expressing based on his knowledge and expertise, he selected for emphasis those parts of AS 4024.1 which, in his view, properly reflected the opinion he ultimately expressed. Such an approach is perhaps not surprising. However, if AS 4024.1 is to be admissible, it must be considered as a whole and not in part. It is my understanding that that latter proposition is not in issue as AS 4024.1, in its entirety, is before me as exhibit 53. 98 Objection was taken by counsel for the respective defendants on the basis of relevance to the admissibility of certain scientific publications, predominantly reports, relied upon by Professor Johnston in expressing the opinions he does and that were published after the date of the alleged offences, particularly with respect to CNH and Davibray. 99 Putting aside for the moment the issue of the date of the particular publications and other matters arising, I am of the view that the publications referred to are 'information in authoritative scientific publications' as described by McGarvie J in PQ v Australian Red Cross Society and others [1992] 1 VR 19 at 34 as follows: By "information in authoritative scientific publications" I mean information of the type which scientific experts of the relevant categories ordinarily treat as data on which they may rely in forming opinions and making decisions within the area of their expertise. Included in such data are facts and opinions stated in articles or reports in scientific publications or in statements by organisations, public authorities or persons regarded by such experts as having knowledge and expertise in the relevant area. Such data includes facts in tables or statistical material on which such experts ordinarily rely. 100 I endorse such a description as being applicable to the material relied upon by Professor Johnston and to which objection is taken. 101 On behalf of the defendants, it was submitted, in order for the publications referred to by Professor Johnston to be relevant, they would have to have been available at or before the date of the respective alleged offences so that, at the relevant dates, regard could be had to them. Given that the date on which some of the publications were published was after the relevant offence dates (particularly but not solely with respect to CNH and Davibray) those publications were, it was submitted, irrelevant and therefore inadmissible. Further, they could not be relied upon by Professor Johnston as the basis for the opinions he has expressed as he has no specialised knowledge that would assist the Court as to the content of the publications and whether the content and conclusions contained in them could have had any impact on the machine in question and it's safe operation. As such, it was said, any opinion he has expressed based upon any of the particular publications referred to is speculation and inadmissible. 102 The defendants further submitted that if such material was admitted, it would require the defendants to meet, as a statutory defence, a standard that was unavailable at the time of the alleged offences. That is, it would require the defendants, particularly CNH and Davibray, to meet a case based on developments canvassed in the publications relied upon by Professor Johnston that had occurred past the date of the alleged offences. 103 In the circumstances, it was said the publications should be excluded pursuant to s 135(a) and (c) of the Evidence Act. 104 In pressing their admission, counsel for the prosecutor submitted, in addition to being relied upon by Professor Johnston as the basis for the opinions he has expressed on the fact in issue, the scientific publications were also relied upon as to the truth of their content. Such a submission, in my view, brings s 60 of the Evidence Act into play. That is, in addition, to be used as a factual basis in support of the opinion expressed by Professor Johnston, the provisions of s 60 of the Evidence Act renders the content of those publications receivable and usable as to the truth of them, not just their existence. 105 That approach was consistent, it was submitted, with the purpose intended by the provisions of s 60 of the Evidence Act. The ALRC explained the reasoning behind the provision (ALRC 26, vol 1, para 685) as follows: Under existing law hearsay evidence that is admissible for a non-hearsay purpose is not excluded, but may not be used by the court as evidence of the facts stated. This involves the drawing of unrealistic distinctions. The issue is resolved by defining the hearsay rule as preventing the admissibility of hearsay evidence where it is relevant by reason only that it would affect the court's assessment of the facts intended to be asserted. This would have the effect that evidence relevant for a non-hearsay purpose - e.g. ... to prove the basis of the expert's opinion - will be admissible also as evidence of the facts stated .

A major change made to the law, however, is to allow consistent and inconsistent statements to be used not only to assess the credibility of the witness but also as evidence of the matters stated. ... Under the proposal, evidence by an expert of the facts on which his opinion is based will be admissible as evidence of those facts . (emphasis added) 106 In Quick v Stoland (1998) 87 FCR 371 at 377, Branson J dealt with the admissibility of an accountant's report considering the insolvency of a company. In providing his report, the accountant (Mr Madden) had summarised the contents of certain financial records of the company that were not in evidence before the primary judge. In upholding the admissibility of the report and the purpose for which it could be relied upon pursuant to s 60, her Honour said: The report of Mr Madden, to the extent that it does not amount to evidence of his opinions based wholly or substantially on his specialised knowledge of accounting and insolvency matters was, in my view, admissible before the primary judge on the basis that it was relevant for a purpose other than proof of the facts thereby asserted. That purpose was the purpose of establishing the factual basis upon which Mr Madden held the expert opinions expressed in his report. The weight to be accorded to the opinions expressed by Mr Madden depended to a significant degree upon the factual basis for such opinions. Evidence of the factual basis for his opinions was thus relevant in the proceeding as evidence which, if it were accepted, could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding, namely the duration of the insolvency of the company. 107 The conclusion of Branson J as to the operation of s 60 as set out above was agreed by Emmett J at 379 and Finkelstein J at 382. 108 On this point see also R v Welsh (1996) 90 A Crim R 364 at 368 where the Court of Criminal Appeal held that once evidence of a statement made out of court is admitted not in order to prove the truth of what was said but only to prove the fact that the statement was made, s 60 of the Evidence Act makes it evidence of the truth of what was said. 109 I am satisfied I can properly admit the publications in issue on the twofold bases as contended by the prosecution. That is, as a factual basis for the opinion expressed by Professor Johnston and as evidence of the truth contained in them relevant to the fact in issue, namely, the risk to safety that exposed augers in agricultural machinery, including combine harvester grain bins, represented and the guarding principles and concepts designed to address that risk to safety. 110 Counsel for the defendants argued that if I admit the publications relied upon by Professor Johnston as evidence of proof of the facts in issue contained in them, I should accordingly limit the use to which such evidence may be put pursuant to s 136 of the Evidence Act. The major reason for such a ruling, it was said, was that the persons who were the authors of the representations made in the publications relied upon by Professor Johnston were not available for cross examination. This point was commented upon by Odgers in Uniform Evidence Law (2004) at 1.3.14640 where the author states: … where the hearsay rule does not apply pursuant to s 60 (because the representation is a relevant fact or the basis of an admissible opinion) and the person who made the representation is not available for cross-examination, there may be a strong case for applying s 136. On this point, see also the dicta of Finkelstein J in Quick v Stoland at 382. 111 Section 136 of the Evidence Act provides: The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing.

112 In all the circumstances, I am not persuaded that a direction pursuant to s 136 is warranted in relation to the admissibility of the publications in question. I say that notwithstanding that the authors of the representations in the particular publications relied upon by Professor Johnston are not available for cross examination. In the first instance, as the trier of fact in the absence of a jury, the likelihood of the representations in the particular publications being used in a misleading or confusing way is remote. Further, the use to which such publications may be put is ultimately one of appropriate weight having regard to the opinions expressed by Professor Johnston going to one issue only. That is, guarding concepts and proposals identified by Professor Johnston relevant to the statutory defence of reasonable practicability at the time of the alleged offences in addressing the known risk to safety that the augers in the grain bin represented. 113 That a number of publications Professor Johnston relied upon in expressing the opinions that he does were not published until after the dates of the offences alleged with respect to CNH and Davibray does not of itself render the publications either irrelevant or inadmissible to the extent that they contain data that addresses risks to safety known to have been identified in relation to the operation of agricultural augers generally and grain bin and harvester augers in particular at the time the offences are alleged to have been committed. 114 Further, it seems to me, to a degree that goes to weight and not admissibility, the publications published after the date of the offences that contain proposals as to guarding and/or interlock devices are evidence only of ways in which the known risk to safety may have been able to be addressed at the relevant times by the defendants. That goes squarely to the statutory defence of 'reasonably practicable'. As earlier stated, the particular proposals identified by Professor Johnston are circumscribed by the acknowledged absence of any evidence going to the functionality of the machine in question relevant to those proposals. The extent to which that affects the weight to be attached to that evidence has already been adverted to by me earlier in this judgment. 115 In summary, as I perceive them, the publications relied upon by Professor Johnston are used to exemplify a number of issues: (i) The augers in the grain bin represented a risk to safety that was known at the time of the alleged offences; (ii) Guarding was a known way of addressing the risk to safety that augers represented in combine harvesters including the grain bins of combine harvesters at the time of the alleged offences; (iii) Interlock devices were a known way of addressing the risk to safety that augers represented in combine harvesters at the time of the alleged offences; (iv) There was research ongoing to further refine and develop guarding and interlock devices in order to address the known risk to safety of augers in combine harvesters and grain bins at the time of the alleged offences; (v) In expressing his opinion as to how the risk to safety of exposed augers should be addressed, Professor Johnston points to publications detailing guarding proposals and interlock devices. A publication by the Prairie Agricultural Machinery Institute (PAMI) (appendix F to the second report) details a particular guarding proposal. An interlock system known as a Human Presence Detection System is discussed in a publication by Scarlett et al (appendix G to the second report). They are, he says, examples of diverse approaches to guarding and interlocking systems that have been developed by scientific based research bodies in order to address the known risk to safety that exposed augers relating to the grain bin represent. It would appear those particular proposals have been developed and/or advanced since the date of the offences relevant to all of the defendants. (vi) The proposals embodied in the publications identified above referred to by Professor Johnston, although developed after 1999, embody principles and concepts known in 1999 to be relevant in addressing the risk to safety from the exposed augers. (vii) Professor Johnston points to them to support his opinion as to the need for improvements to have been undertaken by the defendants in relation to the guarding of augers in the grain bin at the time of the alleged offences. (viii) What Professor Johnston cannot do, which he acknowledges, is to be able to state, in his opinion, that the proposals he points to in the publications identified above, particularly as to guarding, if implemented, would satisfy the fundamental criterion of functionality in the operation of the machine and the grain bin in particular. 116 The above summation, as I would understand it, does not create a situation that renders the opinions he has expressed based on the articles upon which he relies to support the opinions he has expressed as inadmissible. It is a matter that goes to weight. 117 In coming to that conclusion, I turn now to the submission by counsel for the defendants that, given the nature of the material canvassed in the publications referred to by Professor Johnston, particularly those published after the date of the alleged offences, I should exercise the general discretion available under s 135 of the Evidence Act and exclude them. I should add that s 135, without particularity, was also relied upon by the defendants seeking the exclusion of other parts of Professor Johnston's reports. 118 Section 135 of the Evidence Act provides: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) be unfairly prejudicial to a party, or (b) be misleading or confusing, or (c) cause or result in undue waste of time. 119 As ultimately confirmed, counsel for the defendants relied on s 135(a) and (c) in seeking the exercise of the Court's discretion to exclude the publications referred to. 120 To start with, 'probative value' is defined in the Evidence Act as: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. 121 In the qualifying paragraph to the three grounds prescribed in s 135 as a basis to warrant the exercise of the discretion to exclude the evidence identified, there are a number of factors for the Court to consider. The first is the inherent discretion that the use of the word 'may' establishes. The second is that, in excluding the evidence, the Court 'may' do so only if the probative value is 'substantially outweighed' by one or other of the three arms identified in s 135. (emphasis added) 122 Further, in Uniform Evidence Law: Odgers (2004) at 1.3.14540 the author observes that the use of the word 'substantially' places 'a heavy onus on the party seeking the exclusion and that exclusion will only be justified in a clear case'. 123 Relevant to s 135(a), the approach to be taken to probative value was considered by Hunt CJ at CL with whom Newman and Ireland JJ agreed in R v Carusi (1997) 92 A Crim R 52 said at 65-66: It was for the jury, and not for the trial judge, to determine the factual issues at the trial. Applying the ordinary tests, there was clearly a case to go to the jury based upon the evidence in chief of Mrs McHugh which (if that evidence were accepted) was a strong one, and it was for the jury to determine which parts of her evidence they accepted and which parts they rejected. The power of the trial judge to exclude evidence in accordance with the Christie discretion does not permit the judge, in assessing what its probative value is, to determine whether the jury should or should not accept the evidence of the witness upon which the Crown case depends. The trial judge can only exclude the evidence of such a witness where, taken at its highest, its probative value is outweighed by its prejudicial effect …(emphasis added) 124 In R v Shamouil [2006] NSWCCA 112 Spigelman CJ expressly referred to R v Carusi and the approach enunciated in the above passage at [51] where he said: After the enactment of s137, the same approach was taken in R v Singh-Bal (1997) 92 A Crim R 397 at 403 and R v Yates [2002] NSWCCA 520 at [255]-[256], in both of which the formulation from R v Carusi was expressly adopted, i.e. the evidence must be "taken at its highest" in order to determine its probative value. 125 The above judgments deal with the exclusionary test under s 137 of the Evidence Act. Nevertheless, they are relevant, in my view, in enunciating the approach to be taken in the balancing exercise that s 135(a) requires as between probative value and unfair prejudice. 126 The probative value of the publications sought to be excluded is, at this stage of the proceedings, unable to be accurately assessed. Ultimately, the evidence in those publications will be relevant to the weight to be attached to certain guarding proposals and concepts Professor Johnston has expressed an opinion about relevant to the statutory defence of reasonable practicability. That defence has yet to be raised and evidence adduced. 127 In considering the exercise of discretion under s 135 (a) as to what is meant by unfair prejudice, it is well known that evidence is not unfairly prejudicial to a defendant merely because it makes it more likely that the defendant will be convicted: See Papakosmas v The Queen (1999) 196 CLR at 297. On that point, the obiter of Wood CJ at CL in R v Mallah (2005) 154 A Crim R 150 at [141] is instructive as follows: Although counsel did not expressly refer to ss 135 and 137 of the Evidence Act , I am satisfied that neither required the evidence to be excluded. In this regard the following passages from the judgment of Howie J in R v EM (at [120] and [121]) are pertinent: 120. Section 137 is only engaged where the probative value of the evidence is outweighed by its unfairly prejudicial effect. Unfair prejudice under the section arises where there exists the probability that the jury might misuse the evidence in some way other than for the purpose for which it was placed before them R v BD (1997) 94 A Crim R 131 at 139; R v Serratore (1999) 48 NSWLR 101 at [31]; Papakosmas v The Queen (1999) 196 CLR 297 at [91]-[93]. If the evidence is relevant and if there is no likelihood of the jury misusing the evidence in some way, then its probative value, or its lack of probative value, is a matter for the jury. 121. I accept that the section also applies where the jury may give more weight to a particular piece of the evidence than it deserves: R v Yates [2002] NSWCCA 520 at [252]. But that consideration is not based simply upon the assessment of the probative value of the evidence. There must be some prejudice emanating from the evidence that will be likely to cause the jury to over-react to it in an illogical or irrational manner: Papakosmas at [92] or to rely upon it on a basis that was logically unconnected to the issues in the case: R v Taylor [2003] NSWCCA 194 at [93]. In exercising the power contained in the section, the trial judge should have regard to what warnings or directions might be given to the jury to ensure that such prejudice does not arise.

128 As well, the Australian Law Report Commission (at ALRC 26 vol 1 para 644) explained unfair prejudice as follows: The risk of unfair prejudice is one of the potential disadvantages mentioned. By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required. 129 The addition of the word 'substantially' in relation to the balancing exercise that s 135(a) invites only weighs in favour of the evidence being admitted. 130 Given all the above, I am not persuaded I should exclude the particular publications referred to by Professor Johnston pursuant to s 135(a) of the Evidence Act. 131 I turn now to the discretion to exclude arising under s 135(c) going as it does where, if not excluded, the evidence might cause or result in undue waste of time. 132 Relying on s 135(c), counsel for the defendants particularly pressed for the evidence of Professor Johnston to be excluded that went to the guarding and interlock proposals that are identified in the publications published after the date of the alleged offences and relied upon by Professor Johnston in expressing the opinions that he does. Permitting that evidence to be admitted, it was submitted, would result in any probative value being substantially outweighed by the undue waste of time that would result in the defendants having to meet evidence that was speculative or, at best, of minimal weight. 133 In support of his submission as to the proper approach to the exercise of discretion under s 135(c), counsel for the defendants referred to three judgments where s 135(c) or it's common law successor had been relied upon to refuse to admit evidence. They were Koninklijke Philips Electronics NV and anor v Remington Products Australia Pty Limited [2000] 100 FCR 90; Zaknic Pty Limited v Svelte Corporation Pty Limited and ors (1995) 61 FCR 171 and D F Lyons Pty Limited and ors v Commonwealth Bank of Australia (1991) 28 FCR 597. 134 In Koninklijke v Remington and Zaknic v Svelte reference was made to the decision of Gummow J in D F Lyons v Commonwealth Bank as the primary genesis of the views expressed in relation to the applicability of s 135(c) to the matter before the Court. Before turning to D F Lyons v Commonwealth Bank it is worth noting the obiter in Koninklijke v Remington and Zaknic on this issue. 135 In Koninklijke v Remington, Burchett J with Hill and Branson JJ agreeing refused to admit evidence of documents filed in trade mark applications elsewhere by a company said to be the respondent's parent company relating to images of the shaving head of a triple rotary shaver. In so refusing Burchett J said: Although, if ss 55 and 56 be read alone, it might seem that the practicality of the common law has been abandoned by the Act, s 135 provides: The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: … (c) cause or result in undue waste of time.

It is plain that the statute is speaking in extremely broad terms, of uncertain import, which must be construed as leaving a great deal to the judgment of the trial judge, but that judgment must be exercised on a ground of principle. In my opinion, the common law principle expounded in the text to which I have referred is the foundation of s 135(c). In D F Lyons Pty Ltd v Commonwealth Bank of Australia (1991) 28 FCR 597 at 607, Gummow J accepted that there was a "discretion described in the authorities" which enabled him to refuse to enter upon a burdensome inquiry from which "there might be no substantial countervailing benefit in assisting the resolution of the primary issues". Lehane J, in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 176-777, treated D F Lyons Pty Ltd v Commonwealth Bank of Australia as throwing light on the proper use of s 135. 136 In Zaknic v Svelte Lehane J at 176-177 endorsed the approach of Gummow J in D F Lyons. 137 It is necessary to turn to D F Lyons v Commonwealth Bank in order to understand the basis for Gummow J's approach to what was then the common law discretion to exclude evidence where the probative value was small compared with the complexity of issues which would arise if it were admitted. 138 In D F Lyons, the applicants sought relief against the Commonwealth Bank in relation to losses suffered as a consequence of entering into foreign currency loan agreements. In support of their claim, the applicants gave oral evidence of conversations they had with an officer of the respondent in which certain representations were made that induced them to enter into particular foreign loan transactions. In support of their claim as to the nature of the representations made by that particular bank officer, the applicants sought to adduce 'similar fact' evidence from three other persons who, it was said, had had similar dealings with the same bank officer in relation to foreign currency loans. 139 In rejecting the admission of that evidence on similar fact grounds, his Honour said, relevantly, at 603: Thus, whilst evidence of a tendency or propensity to conduct of the kind alleged and in issue may be relevant and admissible as such, it is circumstantial evidence of a dangerous kind, particularly in a criminal case, because of the prejudice that it engenders; accordingly, "similar fact" evidence will be admitted only if of a sufficiently high degree of relevance to outweigh that prejudice: see Harriman v The Queen (supra), per Dawson J (at 597 - 602), per Toohey J (at 607). 140 Finally, his Honour said at 607: Plainly, in applying the principles I have described, each case has to be considered with close regard to its particular circumstances. In the present case, Mr Green had dealings with various customers of the Bank at Taree concerning foreign exchange loans and that they took place in the period in which he was dealing with Mr Lyons. In that sense, there was an underlying unity in Mr Green's activities, but as one might expect, the dealings with customers varied with the particular circumstances as they arose. The nature of the causes of action propounded by the applicants means that specific representations must be established. That is why both in the oral evidence of Mr Lyons, both in-chief and in cross-examination, great attention was paid in eliciting what was or was not said in precise terms on particular occasions. As a matter of ordinary experience of human behaviour, the evidence which the applicants seek to lead would not tend to prove the making of the representations upon which the applicants rely. I should add that, in any event, had I been of the contrary view as to the relevance of the material in question, I would, in exercise of the discretion described in the authorities, have refused to receive it into evidence. The trial raises complex issues of fact and crucial issues of the credit of central witnesses.

The Bank might be expected to test vigorously the evidence that would be given by Mr Bignell, Mr Toft and Mr D'Arcy. A cobweb of subsidiary factual disputes would be spun and further issues of credit could arise. The trial would be further prolonged and, in the end, there might be no substantial countervailing benefit in assisting the resolution of the primary issues . (emphasis added) 141 The nature of the proceedings and the factual circumstances confronting his Honour in rejecting the evidence wishing to be adduced in D F Lyons are quite different to that applying in the proceedings before me.

142 The evidence of Professor Johnston and the particular publications sought to be excluded go squarely to the statutory defence of 'reasonably practicable' and ultimately a question of weight having regard to any evidence yet to be adduced by the defendants. That is entirely a matter for the defendants bearing in mind that it is not the job of the prosecutor to prescribe solutions to ensure compliance with the requirements of those provisions of the Act alleged to have been breached: See Drake Personnel t/as Drake Industrial v WorkCover Authority of NSW (1999) 90 IR 432 at 451.

143 In all the circumstances, I am not satisfied that the basis for exercising my discretion to exclude the evidence objected to under s 135(c) has been established.

144 In admitting the publications attached to Professor Johnston's reports, there is, however, one publication that I do not admit in it's entirety and about which, I believe, the exercise of my discretion under s 135(c) is warranted. That is the publication by Scarlett et al identified as appendix D to Professor Johnston's second report. 145 The report and work described therein by Scarlett et al and titled Guard interlocking for self propelled harvesting machinery (2002) makes reference to authoritative data published prior to 1999. That pre 1999 data is relied upon by Scarlett largely to exemplify the risk to safety that grain bin augers represent and to developments that had taken place in grain bin interlocking systems prior to 1999. I am satisfied that aspect of Scarlett's data is admissible. 146 It is clear on a reading of the Scarlett et al publication of 2002 that, having identified the risks to safety represented by grain bin augers as well as generic interlocking systems, 'it was decided to concentrate efforts upon development of a suitable human presence detection system for an operational combine harvester'.

147 I am not satisfied that I can rely on that aspect of Scarlett's data dealing with human presence detection systems. Scarlett does refer on page 13 of the report of work being done 'since 1994' by a team of researchers at the University of Minnesota of 'human presence detector evaluation in agricultural machine operating environments'. Beyond that statement, it is not possible to know what stage, if any, any evaluation had reached in 1999. Further, Scarlett's report was published in 2002. While the report identifies its major objective as being the development of a suitable human presence detection system for an operational combine harvester, there is nothing in the data to identify when such developments detailed in the data were undertaken. Given that the report was not published until 2002, the inference must be that such development work would have been undertaken prior to 2002. It may well have been 2001 or 2000. As well, there appears to be no substantive conclusion as to the work undertaken. In such circumstances, any probative value of such evidence would, in my view, be substantially outweighed by the danger of causing or resulting in undue waste of time and should be excluded pursuant to s 135(c) of the Evidence Act. 148 Accordingly, in admitting the Scarlett et al report (appendix G to Report No 2) the following pages are excluded: (i) Pages 11-21 inclusive; (ii) Page 22: last five dot points. 149 As well, in admitting the PAMI document (appendix F to the Professor's second report), I do so mindful that it must be weighed against a background of being a guarding proposal untested as to functionality and that, as the document that is appendix F attests, it is a guarding proposal for a portable grain auger that was published in 2004. The only basis on which it can be considered is that it represents a prescriptive guarding concept for the infeed auger. At its highest, it represents a guarding concept for the infeed auger designed to address the risk to safety that the infeed auger represents. That risk to safety was present and known in 1999. 150 Finally, counsel for Raynjune objected to the whole of Professor Johnston's reports on the basis of relevance. That objection was based on two grounds. The first was a statement made by counsel for the prosecutor in calling Professor Johnston as an expert witness. In doing so, counsel for the prosecutor said Professor Johnston was 'not advanced as a witness as to safe work systems'. Accordingly, it was submitted, none of Professor Johnston's evidence was relevant to Raynjune as it had been charged with a 'system of work' offence. 151 Specifically, the offence charged with respect to Raynjune is that Raynjune, on 8 December 2003, being an employer: Did fail, contrary to section 8(1) of the 2000 Act to ensure the health, safety and welfare at work of all of the employees of the defendant employer, and in particular, Mr Rodney Langfield. The particulars of the charge are as follows: 1. The defendant failed to provide or maintain a system of work that was safe and without risk to health in relation to the undertaking of duties requiring the cleaning of the grain tank or bin which was attached to the machine. The defendant failed to provide and maintain system of work that required that the power be isolated from the augers prior to employees such as Langfield entering the grain tank or bin. 2. Further, the defendant failed to ensure that plant, to wit one (1) CASE IH2388 Axial Flow Combine Harvester which was provided for use by employees (namely Langfield), at work was safe and without risk to health when properly used. The machine was not safe in that access was possible to dangerous moving parts of the machine whilst the machine was in operation or powered. The augers were not guarded so as to prevent employees such as Langfield coming into contact with them whilst they were in operation. 152 I believe the submission on behalf of Raynjune as to systems of work and the asserted irrelevance of Professor Johnston's evidence to the charge pleaded with respect to Raynjune is too simplistic. Being charged with an offence characterised as a system of work offence belies the particulars of the charge pleaded, particularly particular 2 above. That particular goes quite specifically to those matters addressed in Professor Johnston's report, particularly as to the obligation on Raynjune to ensure a workplace free of risk to safety with particular reference to the guarding of the augers. The prosecution have specifically identified the machine used by Raynjune and it's employee as representing a risk to safety when properly used, particularly as to guarding. On that basis, it is said, it failed to discharge it's statutory obligation. On any view, Professor Johnston's evidence is relevant and admissible as against Raynjune subject to the rulings I have made and weight to be attached. 153 The further objection raised on behalf of Raynjune as to relevance is that Professor Johnston has conceded that he would not expect a farmer to have the necessary expertise to undertake the testing and consideration of concepts elaborated upon by Professor Johnston in his guarding and interlock proposals. Reference to a 'farmer' in the context of Raynjune is emphasising the fact that Mr McKay is and was, for all practical purposes, the day to day operations of Raynjune. In particular, reliance is placed on the following evidence elicited from Professor Johnston in cross examination: Q. The process even for the simple guards is not a process that you would consider a person without expertise could take on?

Q. You would need to be a relevant engineering person in order to even design the tests? A. You would have to have some, certainly some technical skill.

Q. In terms of interpreting the results you would also have to have skill? A. Yes.

Q. And by skill I mean expertise? A. Yes.

Q. You would have to have some expertise to ensure that you weren't missing a problem that had been created by a particular thing you were testing? A. Yes. Q. And so that what we're talking about in terms of these concepts, whether they be the more difficult or the easier? A. Yes.

Q. Is a regime that there - that has to be undertaken by persons with relevant expertise? A. Yes.

Q. Not the sort of thing that you would expect a farmer to undertake? A. You would hope not.

Q. When you say you hope not, that's because if you did it without expertise or without the relevant expertise what you thought might be the result might be wrong? A. Indeed. (emphasis added) 154 That may well be the case but that is not a reason for excluding Professor Johnston's evidence as against Raynjune on the basis of relevance. Again, evidence such as this goes to the statutory defence available to Raynjune via the day to day activities and responsibilities of Mr McKay in the operation of the machine in question as to what was or was not 'reasonably practicable' in all the circumstances. On that basis, Professor Johnston's evidence as against Raynjune will ultimately be a matter of weight together with all other evidence received. 155 Having regard to the above considerations and submissions received, I admit Professor Johnston's reports. In doing so, however, there are some parts that I do not admit on the basis of speculation, relevance or absent specialised knowledge. There are also some parts that, to take account of such matters, require editing. I now propose to rule on those passages to which specific objection has been taken by the defendants having regard to the principles relevant to the admissibility of expert opinion evidence as provided in s79 of the Evidence Act and generally.

(1) First Report: 31 August 2005 (Exhibit 49) 156 Professor Johnston identified the purposes of the first report as follows: I have been asked to provide a report on the guarding of the grain tank augers on this harvester and the extent to which they meet or fail to meet NSW legal requirements. I have also been asked to suggest ways in which guarding might be improved without prejudicing the performance of the harvester. 157 I have admitted the report. My specific rulings on the objections raised by the defendants to the first report are as follows:

Paragraph Ruling 2.8 Objected passages not admitted. Unduly speculative. (4th and 6th line: extracts as identified) 2.16 Admit only to disclose the state of the machine when viewed by Professor Johnston for the purposes of expressing his opinions. 3.2.5 (Objections raised by Raynjune)

This sub-paragraph has been significantly amended by the prosecutor such that it now reads:

The injury to Mr Langfield demonstrates that, as the harvester operates at present, all the dangerous features in the interior of the grain tank are not safe by virtue of their positions. It is not clear to me that they can realistically be made so. If the dangerous features in the interior of the grain tank cannot be made safe by virtue of their positions, then the dangerous features in it need to be made safe.

Objection taken by Raynjune that the above opinion usurped the function of the Court as the determinant of the ultimate facts in issue. Admitted having regard to s 80 of the Evidence Act.

Admitted having regard to s 80 of the Evidence Act.

3.2.6 4.1, 4.2, 4.3 and 4.4 Not admitted. Not relevant for the purposes of expressing opinion. In many respects repetitious having regard to that which is stated in 1.4, 1.5 and 1.6 in Report 1. 4.9 Admit on the basis that the factual error was corrected as being a reference to AFX8010. Relevant to disclose the basis of the opinion expressed. 5.1 Not admitted: unduly speculative. (3rd sentence) Not admitted with the exception of the word 'However' at the beginning of 2nd sentence: unduly speculative. 5.2 Para 5.2 to now read: (2nd and 3rd sentences) The combine is a highly developed machine with a sophisticated system of locks and controls. However significant areas of the horizontal unloader augers at the bottom of the grain tank are unguarded and there is no nearby provision for stopping these augers. Not admitted with the exception of the words 'even though it involved the use of unguarded augers'. Unduly speculative. 5.3 The first sentence will now read: (2nd and 3rd sentences) When they were interviewed by Inspector Simpson, the representatives of CNH Australia Pty Limited and it's distributors asserted that the present arrangement was essential to the combine's functionality even though it involved the use of unguarded augers. 5.4 Not admitted. The document speaks for itself. Admitted as within specialised knowledge of electrical circuitry. However, opinion expressed refers to 2003 Model - not the same model as that involved in the incident giving rise to the current charges. Accordingly, probative value of evidence diminished notwithstanding inference arising in T900. Witness evidence as to the basis of his opinion on this matter at T745 is as follows:

Q. Now, we have got paragraph 5.11, and you talk, in that paragraph, about the schematic diagrams in the training manual?

Q. That training manual, as you point out, is a revision of 2003?

Q. You did not go back and check to see whether the schematic diagrams for the 1999 model of the 2388 combine harvester were the same, did you?

5.11 Q. But you didn't ever check, did you?

Q. Does it mean that - is your answer this, that, as a consequence of not being provided with one, you have never checked the schematic diagram for a 1999 model of the 2388 harvester?

Q. And that remains the case for the totality of your reporting in this matter, doesn't it?

Q. So you do not know whether there are any differences in the schematic diagram for the electrical systems - the relevant electrical systems - of the combine harvester, the subject of this investigation, and that which you read in this 2003 document?

A. No. First sentence admitted. Within specialised knowledge - machine design allied to safety. 6.1 Second sentence not pressed. 6.3 Admitted. Within specialised knowledge. (1st sentence only) Last three sentences not pressed. 6.4 Admitted. Within specialised knowledge - machine design allied to safety. Relevant to identifying risk to safety from augers in grain bin. (last paragraph) 6.5 Admitted. Within specialised knowledge: occupational health and safety relevant to machine design and use. Admitted as against Raynjune and Davibray only.

First sentence not admitted. WorkCover prohibition notice speaks for itself [exhibit 29].

Second sentence admitted with the exception of the words 'to this requirement' and 'and that WorkCover has accepted this guarding as adequate' such that the second sentence of 6.7 now reads:

6.7 I understand that, in response, Carruthers Machinery fitted the mesh guard described above (as shown in Figs 13,14 and 15).

Third sentence amended by the part not pressed such that third sentence now reads:

Although the 50mm square mesh leaves openings around 46mm square in my opinion it probably provides reasonable operation protection in this relatively inaccessible location.

Admitted as relevant to disclose the basis for opinion and within specialised knowledge. Paragraph 6.6 admitted - factual matter not in dispute. 6.6, 6.8 and 6.9 Paragraphs 6.8 and 6.9 admitted. Relevant to disclose basis for opinion. 6.12 Admitted. Objection is taken as to opinion expressed as being outside specialised knowledge. Do not agree. Satisfied is within specialised knowledge of electrical circuitry. However, probative value of evidence diminished as opinion expressed refers to 2003 model, not the 1999 model involved in the incident giving rise to the current charges notwithstanding inference arising in T900. (last sentence) Admit first sentence of 6.14 and the sentence bracketed that follows on the basis that the factual error was later corrected as being a reference to AFX8010.

The remainder of 6.14 is amended such that it reads: 6.14 and 6.15 While this isolation interlock would presumably be able to be circumvented by pulling up the ladder once an operator was up on the deck of the harvester, this isolation interlock is a very significant safety measure.

Admit 6.15. Relevant to disclose basis for opinion. 6.16 (2nd para and from 8th last line to end) Admit: within specialised knowledge. 6.17 (2nd, 3rd and 4th sentences) Admit as within specialised knowledge but subject to ultimate weight to be attached having regard to functionality and reasonable practicability test. 6.19, 6.20 and 6.21 Admit as within specialised knowledge but subject to ultimate weight to be attached having regard to functionality and reasonable practicability test. 6.22 Admit first sentence. Delete second sentence as unduly speculative. Delete "However" at the commencement of the 3rd sentence such that the sentence commences with the words "In my opinion ..." (last paragraph) Relevant to disclose basis for opinion and within specialised knowledge. 6.26 Admit as within specialised knowledge but subject to ultimate weight as per ruling in 6.19, 6.20 and 6.21 above. (2nd sentence to end) 6.27 Admit for reasons as expressed in 6.26 above. 7.2.1 Admit: relevant to disclose basis for opinion. Corrected in later reports as being reference to AFX8010.

(2) Second Report: 24 November 2005 (Exhibit 50) 158 At the outset of the Report, Professor Johnston relevantly stated: I have now been asked to provide a Supplementary Report in relation to the following matters in relation to the issue of the guarding of the horizontal augers: 1.7.1 Has the issue been dealt with by workplace safety regulators, farmers' organisations or unions in other jurisdictions in Australia, or in overseas jurisdictions such as the United States, Canada, Europe or New Zealand? 1.7.2 Has the issue been referred to in agricultural industry publications? 1.7.3 Has the issue been looked at in the context of negligence or product liability litigation arising from a similar farming accident? 1.7.4 What systems are used by other major manufacturers, such as John Deere, to unload grain from the grain bin on equivalent machines? 159 I have admitted the report. My specific rulings on the objections raised by the defendants to the second report are as follows: Paragraph Ruling 2.6 Admit. Relevant to disclose basis for opinion and to identify risk presented by exposed augers. (last 3 sentences) Post 1999 material refers to risk from exposed augers known and identified before 1999. 3.3 Not admitted with exception of last sentence. Otherwise not relevant - does not go to the facts in issue. 3.4 Admitted on same basis as 2.6 above. 3.5, 3.6, 3.7, 3.8, 3.9, 3.10, 3.11 and 3.12 These paragraphs dissect the Athanasiov et al article that is Appendix D to Report No. 2. Admitted as relevant to risk to safety presented by exposed augers identified before 1999 and to disclose basis for the opinion expressed. Para 3.13 to be amended to read:

3.13 In a follow up paper currently in the process of publication Athanasiov et al point out that (what) came out of the focus groups was the need for properly located safety switches particularly for protection against entrapment.

Above para admitted to disclose basis for opinion and to identify risk to safety from exposed augers that was known before 1999. 3.14 Not admitted. Reference to para 8.5 in Report No 2 not pressed by prosecution. (last sentence) 3.16 Admitted on same basis as 2.6 above. 3.17 Admit: relevant to disclose basis for opinion. PAMI guard exemplifies design principles and technology available before 1999 as reflected in ASAE S361.3 and AS/NZ 2153.7. Ultimately subject to weight having regard to functionality and reasonable practicability test. 3.19 Admitted on same basis as 2.6 above. 3.20 Admitted in part as per paras [147]-[148] of judgment. Relevant to disclose basis for opinion. (... and Scarlett et al (2002) ... Appendix G) 3.25 Admitted. Relevant to disclose basis for opinion. Extract identified (Appendix G page 22 - third dot point) is drawn from data prior to 1999 (see page 3 of Appendix G). (2nd sentence to the end) 3.26 Admitted to disclose basis for opinion. 3.27 Admitted. Within specialised knowledge as the basis for the opinion expressed. 3.28, 3.29 and 3.30 Admit 3.28: relevant to disclose basis for opinion. Exclude 3.29 and 3.30 in accordance with paras [147]-[148] of judgment. 5.6 and 5.7 Admit. Descriptive only - relevant to disclose basis for opinion. 7.1 Admit as relevant to disclose the basis for opinion and to identify the risk presented by the exposed augers known prior to 1999 and continuing. 7.3 Admit as relevant to disclose basis for opinion and to correct error in first report about an interlock on rear access ladder of later models of 2388. 7.4 Admit. Within specialised knowledge as the basis for the opinion. 7.5 Admit. Relevant to disclose basis for opinion. 7.6 Admit on the basis that it refers to AFX8010 only. Satisfied within specialised knowledge as the basis of opinion expressed. 7.8 Admit as within specialised knowledge with exception of 2nd sentence. Note ruling 11/4/2006 p93 L10-15. 7.9 Not pressed. 7.10 Not admitted as per ruling on 11/4/2006 p93 L10-15. Otherwise not admitted: no evidentiary basis for assertions made. Not a matter of opinion. 7.14 Admitted : within sepcialised knowledge. Accept PAMI guard exemplifies design principles and technology available prior to 1999. Ultimately subject to weight as per reasons expressed in 3.17 above. (3rd, 4th and 5th sentences) 8.1 Admit 3rd sentence - relevant to disclose basis for opinion. 4th sentence relevantly amended to read: (3rd and 4th sentences) Data on the specific problem at issue here is swamped by material on the wider problems. Admit. Relevant to disclose basis for opinion and to identify the risk to safety from exposed augers arising pre 1999 and continuing. 8.2 Reference to PAMI guard admitted on same basis as 7.14 above. 8.7 Admit. Relevant to disclose basis for opinion. Satisfied within specialised knowledge as the basis for the opinion expressed and on same basis as 8.2 above. (last sentence) 8.8 Admit. Relevant to risk to safety from exposed augers identified pre 1999 and ongoing. 8.12 Admit. Relevant to the risk to safety from exposed horizontal auger. (first sentence) 8.13 Admit. Relevantly corrects error re alleged interlock on rear access ladder on current model of 2388 combine and to disclose basis for opinion. 8.16 Appendix G admitted in part as per paras [147]-[148] of judgment. 8.17 Admit. Satisfied within specialised knowledge as basis for opinion expressed. Not admitted as being applicable on question of costings: see ruling in transcript of 11/4/2006 page 93 L 10-15. (2nd sentence) 9.1 Admit 1st sentence: relevant to risk from exposed augers. Exclude 2nd sentence - unduly speculative. (1st and 2nd sentences) 9.2.1 and 9.2.2 Admit. Relevant to disclose basis for opinion and to identify an interlock system design principle in place prior to 1999 on 2388 combine on unloader tube and operator's seat. 9.4 Admit first sentence. Delete remainder of paragraph for reasons given in judgment at paras [147]-[148]. (last sentence)

(3) Third Report: 11 January 2006 (Exhibit 51) 160 At the outset of the Report, Professor Johnston relevantly stated:

I was asked in this second supplementary report to note any guarding in the grain tank on these machines and comment on whether it might have prevented the type of injury sustained by Mr Langfield.

I was also asked to comment on the relevance to this matter of an Australian/New Zealand Standard, AS/NZS 2153, Tractors and machinery for agriculture and forestry - Technical means for ensuring safety. In particular, I was asked to comment on the relevance of Part 7 of this Standard, AS/NZS 2153.7:1997, Tractors and machinery for agriculture and forestry - Technical means for ensuring safety, Part 7: Combine harvesters, forage and cotton harvesters. I obtained copies of these standards and of the ISO (International Organisation for Standardisation) standards on which they are based. 161 I have admitted the report. My specific rulings on the objections raised by the defendants to the third report are as follows:

Paragraph Ruling Part 4 - Page 10 Admit as within specialised knowledge. (1st paragraph) Accept PAMI guard exemplifies design principles and technology available prior to 1999. Ultimately a question of weight as to functionality and reasonable practicability. Part 4.2 - Page 10 Not admitted - unduly speculative absent evidence that guarding identified in Fig 11 had been tested as to functionality. (2nd paragraph, 1st sentence) Part 4.2 - Page 10 Second sentence not admitted - unduly speculative. (3rd paragraph, 2nd and last sentences) Last sentence not admitted - unduly speculative.

(4) Fourth Report: 30 January 2006 (Exhibit 52) 162 At the outset of the Report, Professor Johnston relevantly stated: I was asked in this Third Supplementary Report to outline and explain the importance I attach to Australian and International Standards, and in particular to the Standards I have cited in my reports. 163 I have admitted the report. My specific rulings on the objections raised by the defendants to the fourth report are as follows: Paragraph Ruling Page 3 Not pressed. (1st paragraph, part of last sentence)

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