6 In developing his submission that I had taken matters into account that had been disavowed by the prosecution in the response to request for further and better particulars, Mr Watson referred to par 21 of the earlier judgment, which stated:
There were no road markings or signs (other than the 15 km speed limit signs) on the roadways within the factory precincts to be observed by vehicles in relation to where they may drive or park; there were no pedestrian crossings at appropriate points at roadways; there were no lanes marked for exclusive pedestrian use in areas where vehicles and pedestrians might pass close to one another; there were no fences or other barricades preventing pedestrian access to areas used frequently by vehicles or to prevent pedestrians using roadways at points that might be considered unsafe; there was no system in place to ensure that large semi-trailers, of the type driven by Mr Farrugia, could reverse into a confined area without risk to the safety of pedestrians. It was Inspector Macbeth's evidence that "There didn't appear to be any form of procedure to prevent the contact of persons and vehicles on the premises".
7 Mr Watson submitted that the matters referred to in par 21 "were matters which were expressly disavowed by the prosecution or otherwise not the subject of evidence and in addition unable to be the subject of cross examination because they had been denied and they should be removed from your Honour's consideration of any criminality on the part of Red Lea".
8 As it can be seen, par 21 of the earlier judgment referred to the absence of: road markings; pedestrian crossings; lanes marked for exclusive pedestrian use; fences and barricades; a system to ensure large semi-trailers could reverse safely. I do not regard the response by the solicitors for the prosecution to the request for further and better particulars to have disavowed any of these elements of a safe system of work. For example, the answer to the defendant's question 9 was that to the extent it was necessary to ensure the health, safety and welfare of employees using the rear yard of the premises as pedestrians it was the prosecution's contention that the defendant should have installed pedestrian crossings or employed a traffic warden to direct traffic. The answer to the defendant's question 7 was a restatement of the particulars in the summons. I cannot see how it could be said that in providing further and better particulars that the prosecution could be taken to have indicated that it was no longer relying on the particulars in the summons.
9 It may be that the defendant's claim is that because the answer to question 4 was "no" that I could not have regard, for example, to the absence of lanes marked for exclusive pedestrian use. Question 4, like other questions in the request for further and better particulars is cast so widely that it is not surprising that the prosecution answered the way it did, but there can be no doubt, when the answers to the request are read as a whole and in the context of the summons, that the prosecution was conceding or disavowing nothing in providing the answers it did.
10 As to the evidence supporting the findings in par 21 of the earlier judgment, Inspector Macbeth said he did not observe any signs with respect to pedestrians, there were no traffic signs within the premises, he did not observe any system for separation of trucks and pedestrians and there did not appear to be any form of procedure to prevent the contact of persons and vehicles. A statement by Mr Velcich tendered in the proceedings indicated that the only traffic control system that was in place at the time of the accident was a 15 kilometre per hour speed limit. In answer to the question "What other systems were in place to prevent this type of accident occurring?" the answer was "There are signs in place to warn people of moving vehicles and moving pedestrians." (I note that the only signs Inspector Macbeth could find was a speed limit sign posted at the front gate of the premises and the same sign posted on a side gate. There were no signs directed at pedestrians). The evidence of Mr Dunshea, the chairperson of the defendant's occupational health and safety committee, was that in the area where the accident occurred he was not aware of any instructions as to where to walk and where not to walk and that, to his knowledge, there were no pedestrian crossing areas or marked walkways. It was evident from photographs and other evidence that there was no fence or barricade at or near where the accident occurred to prevent pedestrians using the roadway at that point.
11 The defence knew quite clearly what was being contended by the prosecution and evidence was presented in support of those contentions. The findings in par 21 of the earlier judgment were properly based on relevant evidence.
12 Mr Watson also referred to par 27 of the earlier judgment, which was in the following terms:
From the photographs in evidence, the live bird and hopper areas are also used by forklifts. Despite the fact that it was necessary for the heavy vehicle to reverse under the hopper and, in order to do that on the day of the accident to reverse through a 90 degree angle at the corner of a building, there was no system in place to ensure this could be done safely without risks to pedestrians. Along one corner of the building where the semi trailer reverses into the hopper area there is a conveyor (see sketch). By the look of the conveyor in the photographs in evidence and the explanations provided by witnesses, a person could not easily pass under it or over it and it is an effective barrier to accessing the roadway entry directly in front of the hopper area. Along the other corner, however, there was nothing to warn an employee about taking care in crossing the roadway after exiting the Hanging Room or, more importantly, any physical barrier to stop an employee walking straight out onto the roadway at a corner of the building as Mr Peterson said he did (my emphasis) . Any view of the roadway to the left would be obstructed by the conveyor. Given the coming and going of a semi trailer at least twice a day, as well as forklifts, this corner would have to be considered, on any reasonable assessment, a risk to the safety of pedestrians using the area. Mr Farrugia's evidence was that he had seen, on his daily visits, pedestrians using the area where he was driving and in the immediate vicinity of the accident.
13 It was Mr Watson's contention that I should "excise" the findings I have highlighted in par 27 from any consideration of the criminality of the defendant because, firstly, at par 31 of the earlier judgment I had found that there was no causal connection between a failure to warn and the accident and secondly, because the prosecution had expressly disavowed the need for physical barriers to separate pedestrians and vehicles in its answers to the second and fourth requests for further and better particulars.
14 It is correct that in par 31 of the earlier judgment, I found that employees were not adequately warned of the risks posed by motor vehicles and it is also correct that I did not go on to find that there was a causal connection between the failure to warn and the risk of colliding with or being hit by a motor vehicle. However, as the language makes clear in par 27 of the earlier judgment, the key finding was not failure to warn - although that was certainly the case, but rather the absence of any physical barrier to stop a person walking straight out onto the roadway. Mr Watson submitted that the prosecution disavowed this. In my opinion that was simply not the case and in saying this I rely on my earlier treatment of the request for further and better particulars and the prosecution's response. Mr Watson appears to argue that the absence of physical barriers between pedestrians and vehicles was not put against the defendant. However, there was no obligation on the prosecution to list in infinite detail in its particulars the measures the defendant should have taken to ensure the safety of employees. The defendant is entitled to know those facts and circumstances which establish the essential elements of the offence alleged against the defendant: WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 128. The essential element of the offence alleged against the defendant in this matter was that it failed to provide or maintain a safe system of work that was safe and without risks to health in that it failed to put in place an adequate system to separate employees and motor vehicles using the rear yard area of the premises. The evidence of Inspector Macbeth was that there was no means of preventing the contact of persons and vehicles on the defendant's premises. This included, in my view, the absence of any physical barrier to stop an employee walking straight out onto the roadway at a corner of the building as Mr Peterson said he did.
15 Mr Watson also referred to par 33 of the earlier judgment, which stated:
Particular (e) alleges a failure on the part of the defendant to put in place an adequate system for controlling motor vehicle traffic at the premises. The only system in place for controlling motor vehicle traffic according to the evidence was the two 15 kilometre per hour speed signs and the occasional warning issued by the watchman to drivers to slow down and look out for pedestrians. If the defendant had provided a system where reversing trucks were under the direction of a flagman, who also had the responsibility to keep a look out for pedestrians, I consider that the accident would have been avoided, especially if Mr Velcich and Mr Milnes were correct in their recollection about the direction from which Mr Peterson was coming when he collided with the truck (my emphasis ) . It was not impracticable or unreasonable in my view to have a person available to direct a truck that was required to reverse through a ninety degree angle into the hopper in circumstances where pedestrians might be present. It was foreseeable that if this was not done, someone could have been injured by the reversing vehicle. Consequently, Particular (e) is made out.
16 It was Mr Watson's submission that I should "excise" from any consideration of the defendant's criminality, the finding in par 33 that I have highlighted because it was not relied upon by the prosecution and "there was no evidence given about it by Inspector Macbeth". In fact, the absence of a flagman was relied upon by the prosecution. It was specifically referred to in the answer to question 9 in the request for further and better particulars. Mr I Taylor , counsel for the prosecution, also referred to the value of the presence of a flagman to direct the movement of heavy vehicles in his opening address. Having been put on notice of this contention it was open to Mr Watson to cross examine Inspector Macbeth about the matter if he chose to do so.
17 In my opinion, I was entitled to take into account those matters identified by Mr Watson in arriving at a guilty verdict and I am entitled to have regard to them in sentencing.
18 Mr Watson submitted that in determining any penalty, which he said should be "in the hundreds rather than thousands of dollars", I should take into account the following matters arising from the evidence relating to the earlier proceedings:
(a) That it was Inspector Macbeth's evidence that Mr Peterson would have walked into the parked vehicle whether or not there was a sign in front of it saying "don't walk" and that it was also the Inspector's evidence that Mr Peterson walked into the truck because he was not paying attention to where he was going.