37 One of the defendant's central contentions was that, according to the Summons, it was required to answer charges relating to alleged failures under s16(1) only in respect of one person, namely, the person injured on the evening of 28 February 1997, Ms Judith Westphal. The defence contended this on the basis of the wording in Particulars 10 and 11 of the particulars of the offence set out in the Summons. Mr Day said, in effect, that because Particular 11 limited the defendant's failure to Ms Westphal and that the prosecution did not word the Summons to say for example, "persons including Ms Westphal", that all the defendant should be required to answer is the charge relating to Ms Westphal.
38 The significance of this is that the prosecution alleges the defendant's failure under s 16(1) extends to and includes other spectators, in particular those within 100 metres of the firing point and who were in the line of fire to the north-east of the firing point. If Mr Day's argument were successful I would need to confine any consideration of this matter only to the alleged failure of the defendant in respect of Ms Westphal.
39 The Summons sets out the charge and what follows are eleven particulars. Particular 10 contains the essential elements of the offence as enunciated by Mr Crawshaw in his written submissions. I take the view that if I am satisfied that the prosecution has proved the elements of the offence in Particular 10 beyond reasonable doubt then the prosecution would have succeeded. Particular 11 is a separate Particular from Particular 10; Particular 11 is not required to be read in conjunction with Particular 10.
40 Indeed, it is not essential, in my view, for the prosecution to succeed, that it establish Particular 11. This is so for two reasons. Firstly, it is not necessary for the prosecution to establish every particular. What the prosecution is required to establish are the essential elements of the offence charged: Environment Protection Authority v Sydney Water Corporation Limited at 484. As I have said, the essential elements of the offence are contained in Particular 10.
41 Secondly, Particular 11 focuses not on the alleged failure of the defendant to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking (as does Particular 10), but on the consequences of the alleged failure. This, I think supports my view that Particular 11 is severable from Particular 10. Furthermore, it is not the injury, or the accident causing injury, that constitutes failure on the part of a defendant to ensure the health and safety of persons but rather it is a question of whether an employer's acts or omission created a situation of potential danger to the health and safety of persons at the place of work: Haynes at 158-159; Drake at 452.
42 Given that the essential elements of the offence are set out in Particular 10 and because Particular 11 deals essentially with consequences of the defendant's alleged failure and does not need to be established to make good the offence charged, I consider that Particular 10 can stand alone from Particular 11.
43 In the event that counsel for the defendant did prepare his case on the charges laid only in respect of Ms Westphal, he should have been alerted to the prosecution's intentions at the opening of proceedings where Mr Crawshaw said at p6 of the transcript in relation to the second element of the offence:
" As to there being persons who were not employees, in the present case such persons were the spectators at the Newcastle Showground at the time in question, and those spectators, of course, included Ms Westphal the woman who was injured as a result of the misfiring shell (emphasis mine).
The second part of the question as to whether the non-employees were exposed to health and safety risks will be made out, we would suggest. That risk, although by its nature only a possibility, must be a real risk and not a mere possibility, and in the present case - and we should also say it only need be a potential risk. In the present case there was a potential risk to the health, safety or welfare of any or all of the spectators at the Newcastle Showground ( emphasis mine ) from being hit by a shell at this fireworks display, and the risk arose from any malfunctioning firework which either did not ignite or collided, or for whatever reason did not burst as one would hope they would. It also includes the risk which I mentioned earlier of the trajectory of the shell deviating because of a collision.
Now, although one only needs to prove a potential risk to make out the offence, the actual injuries suffered by Westphal will in themselves represent relevant evidence of the existence of such a risk, and indeed, the seriousness such a risk.
44 Mr Crawshaw also said at p7 of the transcript:
"If I can go to the first of those matters, the failure to apply distances between the firing point and spectators which minimised the risk of spectators being injured by malfunctioning fireworks, this also in turn has two parts. There is a failure to apply distances without a risk to health and safety of any spectator between the firing point and any spectator in the area to the north-east, namely the area to which the fireworks were directed as a result of the wind calculations that were conducted by the defendant; and then the second failure is a failure to apply distances without a risk to the health and safety of any spectator between the firing point and any spectator, including the victim, in the area and about where Ms Westphal was injured ( emphasis mine ).
Now, you will hear more, as I said, about DG108 and the minimum distances set out therein, but suffice it to say at this stage that DG108, in so far as it sets minimum distances, provides for a minimum distance of 50 metres except in the case of persons in the direction of the flight of the fireworks, where it has got to be 100 metres.
You will hear evidence to this effect but the grandstand to north-east was not 100 metres distant, although Ms Westphal was more than 50 metres distant. As I said before, in relation to both DG108, the draft Australian Standard, we will be prosecuting the case in any event on the basis that those distances were merely minimum distances and did not alleviate the defendant from its responsibility, either under those standards to ensure the safety of the spectators or indeed under the Occupational Health and Act of ensuring the safety of the spectators."
45 Upon hearing these opening submissions by Mr Crawshaw, counsel for the defendant, if surprised by the references to other spectators, could have sought an adjournment or could have argued as a threshold matter that the defendant was only required to meet a charge in relation to the risk to health or safety to Ms Westphal. Mr Day chose not to do so.
46 Accordingly, I do not intend to limit my consideration of the alleged failure of the defendant to Ms Westphal.
47 As Mr Crawshaw contends, there are four elements of the offence created by s 16(1) of the Act which the prosecution is required to establish beyond reasonable doubt. These elements are:
- That the defendant was an employer;
- That there were persons not employees exposed to risks to their health or safety;
- That the risks arose from the conduct of the defendant's undertaking; and
- That the exposure to risks was at the defendant's place of work.
48 The existence of elements one, two and four were not seriously challenged by the defendant and I find that on the basis of the reasoning set out below that the prosecution has established these beyond reasonable doubt.
49 As to the first element, that the defendant was an employer, it was admitted by counsel for the defendant.
50 As to the second element, that there were persons not employees exposed to risks to their health or safety, the evidence relating to the first part of that element (that there were persons not employees) included:
· the presence of Ms Westphal and other persons standing near her including Ms Ferguson, Mr Sharpe and his wife, Ms Jenkins;
· Mr Saddington's evidence that he was present along with committee members and other persons on the verandah in the horse office and his evidence to the effect that there were between 10,000 and 15,000 people at the show. The people watching the fireworks display were either in the grandstands or "moving around";
· Mr Howard's evidence that there were people around the arena to the east and north-east and west and south-west of the firing point who were less than 100 metres from the firing point.
51 The second part of the second element of the offence requires the prosecution to establish exposure of persons to health or safety risks. This involves a consideration of whether the fireworks display at the Newcastle Showground on 28 February 1997 represented a risk and whether persons were exposed to that risk. That a fireworks display was conducted on 28 February 1997 at the Newcastle Showground was not in contention. Nor was the fact that 100 mm aerial shells were used, capable of reaching a height of 120 metres. The question is whether there was a potential risk to the health or safety of any or all of the spectators from being hit by an aerial shell that did not ignite and, therefore, explode before it returned to earth.
52 That it was not unknown to have misfires or malfunctions, including shells that fail to burst, was admitted by Mr Howard. It was standard procedure of the defendant following any fireworks display to check the ground for unexploded shells. Moreover, there was evidence to the effect that shells fired into the air that do not explode will not necessarily return to earth as predicted but may scatter considerable distances.
53 Exhibit Z in the proceedings was a paper presented at an International Symposium on Fireworks in Canada in May 1992 by K.L. and B.J. Kosanke. This paper was referred to by Inspector Brent in the course of his evidence for the prosecution. The paper describes experiments and the results of those experiments relating to the extent to which 'dud' aerial shells drift from the predicted path. The Abstract of the paper stated:
"A prime consideration in determining separation distance requirements for aerial fireworks displays is where fallout of dangerous debris is likely to occur. Certainly the most dangerous single type of fallout is a dud aerial shell. Thus it is most important to have knowledge of where duds may fall during typical displays. This would be a relatively simple situation if aerial shells were ballistically stable, and they precisely followed the path determined by mortar orientation, shell muzzle velocity, and atmospheric conditions. Unfortunately, however, aerial shells tend to drift from their ideal (predicted path), and that drift is greater than most realize."
54 The experiments by Kosanke and Kosanke involved one 100mm spherical aerial shell falling some 114 metres from the point ballistically predicted.
55 The knowledge of the defendant that shells may fail to burst and that they tend to drift from their predicted path is, in my view, evidence that persons were exposed to risks by attending the fireworks display at Newcastle Showground on the evening of 28 February 1997.
56 Further, in Drake the majority (Wright J, President, Walton J, Vice President) at 452 said:
"The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work."
57 The passage quoted from Drake applies with equal, if not greater, force to s16(1) of the Act.
58 In this case, the accident and injuries sustained by Ms Westphal are relevant evidence of the existence of a risk. This is illustrated firstly, by Mr Sharpe's evidence about the unexploded shell landing in front of him after it had hit Ms Westphal. Mr Sharpe was standing near Ms Westphal when she was hit. Mr Sharpe said:
"My first recollection of the incident was when something slightly larger than a cricket ball rolled across in front of my feet. When it came to a stop, which was about a foot or 2 feet slightly towards my right foot, it had a wick and half the wick was glowing."
59 The injuries suffered by Ms Westphal are also relevant evidence of the existence of a risk to health and safety of non employees. These injuries are referred to in Particular 11 of the Summons. The fact of the injuries is contained in the evidence of Ms Westphal and in the Accident Report completed by the defendant and entered into evidence as Exhibit G.
60 I find that the second element has been established by the prosecution beyond reasonable doubt.
61 The third element is also made up of two parts, namely that the prosecution is required to establish:
a) that the defendant was conducting an undertaking;
b) that a risk arose from this undertaking.
62 I think that the evidence as to the defendant conducting an undertaking is clear. The undertaking was an outdoor fireworks display being conducted by the defendant in accordance with the contract or agreement with the Newcastle Agricultural, Horticultural and Industrial Association Inc.
63 The second part of the third element is far more problematic.
64 The prosecutor alleges that the risks to health or safety arose from the defendant's failure to:
i) apply distances between the firing point and spectators which minimised the risk of spectators being injured by malfunctioning fireworks;
ii) have an adequate system of work for determining the firing angle and hence potential trajectory of the fireworks shell;
iii) determine the distance that a fireworks shell, which failed to burst, will travel for a given lift charge and set mortar angle, with the knowledge that fireworks shell may misfire.
65 As to the first alleged failure, it was argued by the prosecution that there were two aspects to it. The first related to the spectators who were not situated in the direction of flight of the aerial shells. This group of spectators included Ms Westphal and generally consisted of those persons situated on the south-western side of the arena (and I will refer to them as the "south-western spectators"). As the sketch shows, the mortars were angled some five degrees from the vertical towards the north-east whereas Ms Westphal was standing some 135 degrees on the azimuth from the direction of flight and some 84 metres from the firing point. The second aspect related to those spectators situated in the direction of flight, that is towards the north-east and within 100 metres of the firing point. These spectators were generally situated on the eastern to north-eastern side of the arena (and I will refer to these as the "north-eastern spectators").
66 In relation to the south-western spectators, I do not accept the prosecution's contention that the defendant failed to apply distances between the firing point and spectators which minimised the risk of spectators being injured by malfunctioning fireworks.
67 In coming to this view I need to start with the question of where the mortars were pointed. While it is the case that Mr Howard did not use any instrumentation to fix the angle of the mortars and or to judge wind speed and direction, I consider that his experience over a number of years of having conducted hundreds of firings, the methods that he did use in fixing the angle of the mortars using the jockey wheels of the trailer satisfy me that the mortars were pointed in a north-easterly direction. Whether the angle of the mortars from the vertical towards the north-east was five degrees or ten degrees I do not know, but given Mr Howard's evidence and the evidence of Mr Sharpe and Ms Ferguson about where they saw the fireworks exploding and the fact that no change in wind speed was noticed by any person during the display, the angle of the mortars from the vertical could not have been significantly more than about five to ten degrees.
68 With the mortars pointing to the north-east and with Ms Westphal being situated some 135 degrees from the point of aim of the mortars, the only other matter I need to consider is the distance from the firing point to the south-western spectators. The evidence was that Ms Westphal was standing about 84 metres from the firing point. The evidence was that in setting up the fireworks display Mr Howard used the draft Australian Standard DR 96479 "Explosives and Pyrotechnics Part 4: Pyrotechnics - Outdoor Displays". That draft is now the actual Standard - AS2187.4. There was no relevant difference between the draft and the actual Standard. The draft Standard provided in Table 3.2 that the minimum safety distance between the point of launch and spectators for 100 mm aerial shells was 50 metres.
69 In his report of the accident in Exhibit F, Inspector Robins states:
"The "safety distances" specified in the WorkCover Authority of New South Wales dangerous goods series publication DG108 "Fireworks Displays" and draft Australian Standard DR96479 "Explosives. Part 4: Pyrotechnics - Outdoor displays." Used by Pytec Pty Ltd and Howard and Sons Fireworks Spectaculars Pty Ltd to set up a fireworks display so that a fireworks shell, which fails to burst, does not result in injury to spectators are distances allowed for correctly functioning fireworks. These safety distances are not for fireworks shells which fail to burst."
70 The statement by Inspector Robins was, he agreed in cross examination, merely his opinion on a reading of the draft Standard.
71 Inspector Brent, in his evidence, also expressed the view as a member of the committee that prepared the draft standard, that the minimum distances set out in Table 3.2 did not apply to shells that failed to burst.
72 The draft standard also contained a 'catch-all' provision that "Notwithstanding the minimum safety distances, display fireworks shall be placed at a safe distance from spectators." The draft standard also provided that:
"Mortars shall be angled such that -
(a) any aerial shell which has not initiated as intended will fall within the display site (or within a controlled and unoccupied area); and
(b) pyrotechnic devices will not cross over or burst above any area occupied by spectators."
73 Inspectors Robins and Brent seem to have taken the view, in their interpretation of the draft Standard, that it was the 'catch-all' provision that applied in relation to shells that failed to burst and/or the provision relating to the angling of the mortar such that any shell that fails to burst falls within the display site.
74 Inspector Brent explained in his evidence, as I understood him, that the safety distances in Table 3.2 were mandatory minima but that it was the responsibility of the fireworks display operator to set safety distances according to such factors as lift charge, wind, type of shell and in doing so ensure that any shell that failed to burst did not fall on spectators.
75 It seems to me that if a display operator was firing a 100 mm shell vertically (at 90 degrees to the ground) on a windless day and there was nothing unusual about the type of shell or lift charge that might cause it to deviate significantly from its predicted flight path, then provided the operator met the mandatory minimum of 50 metres, the operator could not, in my opinion, be said to have failed to comply with the draft Standard. On the other hand, if it was windy, for example, the operator would have to make a judgment about the angle of the mortar tube and about whether the mandatory minimum distance was sufficient. That is, the operator would have to make a judgment about how far the mandatory minimum should be extended to ensure the safety of spectators, depending on the wind strength and the direction of the wind. The operator would have to ensure that any shell that failed to burst fell within the display area (or within a controlled and unoccupied area) and that it did not hit a spectator.
76 In the present case Ms Westphal was standing about 84 metres from the point of launch - over one and a half times the mandatory minimum safety distance. The mortars were angled between five and ten degrees to the north-east. The wind was blowing no more than about ten knots - "a gentle sort of breeze." Ms Westphal was situated 135 degrees from the intended flight path of the shell. In these circumstances, if it is said that over one and a half times the mandatory safety distance was not sufficient, what should have been the minimum safety distance? I think the question is virtually unanswerable.
77 It seems to me that it would not be reasonably practicable, on the basis of the 'catch-all' provision in the draft standard, in setting a safety distance from point of launch to spectators, that an operator be required, for example, to take into account the possibility of a collision between shells after they were launched from the mortars, one shell failing to burst, deviating from its flight path by 135 degrees and hitting a spectator some 84 metres away from the point of launch.
78 The situation in relation to the north-eastern spectators is, I think, a different matter. These spectators were situated according to the evidence, in the direction of flight of the aerial shells, that is, towards the north-east.
79 It was admitted by Mr Howard that there were spectators within 100 metres of the point of launch and that they were in the direction of flight.
80 The Display Fireworks Permit issued to Mr Howard was issued subject to him complying with, amongst other things, "Brochure DG 108."
81 The Dangerous Goods Regulation 1978 provides in regulation 54(4) that:
"A display fireworks permit shall be subject to the conditions specified in the permit ( including conditions which the Chief Inspector considers appropriate in the interests of the safety and welfare of the community).
82 DG 108 "gives guidance and the revised conditions to be observed for the purchase and use of display fireworks." Under the heading "Distance for Spectators" the brochure states:
"The fireworks used in the display must suit the available space. For example, in a small park, shells must not be included unless it can be guaranteed that the complete zone under the trajectory of the shell, and of any falling debris, will be free of people, and that debris will not fall on any other person's property. Minimum distances are:
(a) High Level Displays (ie those where fireworks are expected to reach a height in excess of 60 metres)
(i) Shells - at least 50 m from the point of launch except in the direction of flight when the distance shall be 100 m. A larger distance may be required for shells over 200 mm. These must not cross over or burst above spectators."
83 In my view the defendant failed to comply with DG 108. I consider that the nature of the requirement, that spectators must be 100 metres away from the point of launch of aerial shells where they are situated in the direction of flight, is mandatory rather than advisory. It seems to me also to be a matter of commonsense. In my view this failure to comply with DG 108 created a risk to the health and safety of persons not in the employ of the defendant arising from the conduct of the defendant's undertaking.
84 The second alleged failure in Particular 10 (ii) of the Particulars in the Summons was that the defendant "Failed to have an adequate system of work for determining the firing angle and hence potential trajectory of the firework's shell."
85 I have already considered this alleged failure to some extent in relation to Particular 10 (i).
86 Even if I were to accept that there was a failure on the part of the defendant to have an adequate system of work for determining the firing angle and hence potential trajectory of the fireworks shell, I have difficulty in identifying the causal connection of that failure to a risk to health or safety. As I have earlier indicated, it cannot be said that the alleged failure to have an adequate system for determining the firing angle caused a risk to safety to the south-western spectators, including Ms Westphal. As to the north-eastern spectators situated in the direction of flight, it was the failure to apply safe distances between the firing point and spectators which created the risk to health or safety, not the failure to determine the firing angle properly.
87 Because of the particular experience of Mr Howard in setting angles by visual estimation, the special skill he has acquired through hundreds of firings of aerial shells and the particular methods used, I accept that his use of visual estimation was not a failure to properly determine the firing angle in this case. In making this finding, however, it should not be taken that I unconditionally endorse this approach as appropriate industry practice. I do not. I had no evidence before me as to what is the industry practice but I consider it would be unwise and imprudent, given the duties of employers under s16 of the Act, not to have some adequate method of measuring angles using appropriate instrumentation.
88 The third alleged failure in Particular 10 (iii) of the Summons was that the defendant failed to determine the distance that a fireworks shell, which fails to burst, will travel for a given lift charge and set mortar angle, with the knowledge that fireworks shells may misfire.
89 I think the evidence is clear on this point: Mr Howard did not know how far a fireworks shell, that failed to explode, would travel for a given lift charge and set mortar angle, knowing that fireworks shells may misfire. No steps were taken by Mr Howard to establish this information.
90 The difficulty I have again, however, with this allegation, in respect of the south-western spectators, is causal connection. Given that the evidence is that the most probable cause of the risk to health or safety to the south-western spectators was a collision that sent the shell wildly off course (see in the particular the evidence of Mr Mandl an expert witness for the prosecution), any failure on the part of the defendant to know how far a shell will travel under certain conditions does not appear to be relevant, even though the defendant knew that shells misfire.
91 In relation to the north-eastern spectators, the failure to know how far the 100mm unexploded shell would travel at a mortar angle of five to ten degrees, knowing that such shells may not explode, did create a risk to health or safety. It is axiomatic, in my view, that if an operator had set up a fireworks display according to a draft Standard that required them to angle mortars such that any aerial shell which had not initiated as intended would fall within the display site (or within a controlled and unoccupied area), it must, in order to avoid risks to health or safety of spectators, know with reasonable precision how far a given type of unexploded shell may travel in the direction of flight.
92 I find that the third element of the offence has been made out.
93 The fourth element of the offence is that the exposure to risk was at the defendant's place of work. The expression "place of work" is defined in s 4 of the Act to mean "premises or any other place, where persons work."
94 The fireworks display on 28 February 1997 was conducted at Newcastle Showground by Mr Howard and an employee of the defendant, Mr Lawrie. Mr Howard and Mr Lawrie were engaged in work in setting up and conducting the fireworks display and the place that they were working was Newcastle Showground. The fourth element of the offence is made out.
95 I find that each of the elements of the offence have been established.
96 I turn to consider whether a defence has been made out under s 53 of the Act. Section 53 provides as follows:
"It shall be a defence to any proceedings against a person for an offence against this Act or the Regulations for the person to prove that:
(a) it was not reasonably practicable for the person to comply with the provision of this Act or the Regulations the breach of which constituted the offence, or
(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. "
97 To establish a defence under s 53 the defendant must prove that, on the balance of probabilities, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision: Drake at 457; Sydney City Council v Coulson (1987) 21 IR 477 at 480; Italo Australian Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431; WorkCover Authority of NSW (Insp Glass) v Kellogg (Aust) Pty Ltd at 15 2000 NSW IRComm 53.
98 If the offence charged had been limited to the south-western spectators which included Ms Westphal, I consider that the risk of an unexploded shell hitting a spectator would not have been readily foreseeable. I have already explained where Ms Westphal was situated in relation to the firing point and the direction of fire of the shells. The evidence was that the most likely probable cause of the deviation of the shell that hit Ms Westphal was a collision in flight with another shell. The prospect of collision was, on its own, readily foreseeable on the evidence but the combination of collision, together with the extremely low probability that the shell would fail to explode and that the unexploded shell would deviate at such an angle and travel such a distance was not readily foreseeable by the defendant. Not being readily foreseeable, it was not reasonably practicable within the meaning of s 53(a) of the Act for the defendant to prevent or guard against the risk to health or safety.
99 In relation to the north-eastern spectators, however, the risk to their health or safety was readily foreseeable. The mortar was pointing in the direction of this group of spectators; the spectators were inside the safety distance of 100 metres set by DG 108; the defendant was required to comply with DG 108 as a condition of its Permit to conduct fireworks displays; the defendant knew that shells could fail to burst; the defendant knew that unexploded shells could deviate from their predicted flight path; the defendant did not know how far the 100mm unexploded shell would travel at a mortar angled at five degrees from the vertical.
100 It is not a question of whether an employer did envisage a particular risk to health or safety but rather whether it should have: Kellogg at 15. In relation to the north-eastern spectators the defendant should have foreseen the risk to health or safety. The defendant, therefore, has not made out a defence under s 53(a) in relation to the offence.
101 Section 53(b) requires the defendant to prove to the civil standard that the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. I consider that on the evidence it would have been open to me to find that if the offence charged had been limited to Ms Westphal and the group of spectators on her side of the arena, the defendant could have made out a defence under s 53(b) for reasons similar to that which I have expressed relating to s 53(a). As Dr Green said in his evidence in Exhibit 2 at p49:
"In my opinion this accident was unfortunate but outside the control of Mr Howard. A direct malfunction of the shell could not have been assessed prior to the accident. The fuse and shell is completely covered in paper and will look normal. The manufacturer has a high reliability for their products."
"The angle and distance of the victim from the firing point relative to the wind direction are not consistent with the normal variations caused and expected from a simple misfire and impact of a blind shell. They are consistent, however, with a collision or deviation caused by a shell burst and subsequent failure of the fuse.
The circumstances and likelihood of this type of collision are impossible to predict and are thus outside the control of Mr Howard."
102 However, given the scope of the offence charged, which I have found includes spectators in the direction of flight of the aerial shell, I consider that, in relation to the offence charged, no defence is made out under s 53(b) of the Act.
103 Given what I have said about the s 53(a) defence in relation to the north-eastern spectators it is obvious why I do not accept that a defence has been made out under s 53(b) of the Act. Clearly, the risks to health or safety were due to causes over which the defendant did have control and against the happening of which it was practicable for the defendant to make provision.
104 I find the offence proven.
105 Leave is granted to the parties to seek to have this matter re-listed in order that the question of penalty might be addressed.
Annexure One