District Court New South Wales Medium Neutral Citation: SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 131 Hearing dates: 13 – 17; 20 – 22; 24 and 27 February 2023 Date of orders: 01 May 2023 Decision date: 01 May 2023 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The prosecution has not proven all of the elements of the offences beyond reasonable doubt. 2 I will hear from the parties before making final orders. Catchwords: CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – injury to workers Legislation Cited: Evidence Act 1995 Occupational Health and Safety Act 2000 Work Health and Safety Act 2011 Work Health and Safety Regulation 2013 Cases Cited: Aubrey v R (2017) 260 CLR 305 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 Bulga Underground Operations v Nash [2016] NSWCCA 37 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 Royall v The Queen (1991) 172 CLR 378 Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 Category: Sentence Parties: SafeWork NSW (Crown) Astute Earth Works (Defendant) Representation: Counsel: M Cahill (Crown) M Sahade (Defendant) Solicitors: Legal, Department of Customer Service (Crown) Paramount Law Group (Defendant) File Number(s): 2021/234801 2021/234811 Publication restriction: None Judgment Introduction 1. Astute Earth Works Pty Ltd (Astute or the defendant) has pleaded not guilty to the following charges, the first two of which are brought in the alternative: 1. an offence contrary to s 31 Work Health and Safety Act 2011 (the Act) that as a person with a health and safety duty under s 19(1) of the Act that it engaged in conduct that recklessly exposed Bishnu Ale Magar, Prasanth Thiruchelvamaran and Kugenthiran Arumugam (the workers) to a risk of death or serious injury; or 2. an offence contrary to s 32 of the Act that as a person with a health and safety duty under s 19(1) of the Act, it failed to comply with that duty and thereby exposed the workers to a risk of death or serious injury; and 3. an offence contrary to s 38 of the Act that as a person conducting a business or undertaking that it failed to notify the regulator of a notifiable incident arising out of the conduct of the business or undertaking, namely the injury to Mr Arumugam. 1. On 21 August 2019, the workers were undertaking demolition work at 16-18 Park Road, Vineyard (the site). Apex Building Systems Pty Ltd (Apex) contracted with Greater Civil Pty Ltd (Greater Civil) to undertake the demolition of an existing building on the site. On 21 August 2019, a Caterpillar Excavator serial number KRM00218 (the excavator) owned by Greater Civil was being operated by Jamal Taleb, an employee of Greater Civil, to undertake the demolition work. The prosecution alleged that on the day of the incident, each of the workers at different times got into the bucket of the excavator and the jib was manoeuvred to lift the workers to various heights and positions for the purpose of removing bolts from steel purlins of the structure being demolished. The workers were not provided with any means of fall protection or fall prevention while working at height in the bucket. While Mr Arumugam (Kanna) and Mr Thiruchelvamaran (Prasanth) were in the bucket, it suddenly detached from the jib and fell to the ground. [1] Kanna sustained a number of injuries. He was taken to Westmead Hospital where he was admitted for 10 days and underwent surgery. 2. The issues in the case are: 1. Did the defendant owe the workers a health and safety duty pursuant to s 19(1) of the Act? (Elements B, 2 and (iii) set out at [188], [190] and [192] respectively). 2. Was the defendant reckless as to the risk of death or serious injury to an individual? (Element E set out at [188]). 1. The prosecution's case is that: 1. Astute was engaged as a subcontractor of Greater Civil to assist Greater Civil to undertake the demolition work at the site and that Astute contracted with the workers to undertake the work; 2. or in the alternative, 3. Astute contracted with Greater Civil to provide it with labour to do the work and it sent its contracted workers to do the work at the direction of Greater Civil. 1. The defendant's case is that the workers were engaged by Greater Civil and that Astute had no involvement in, or control over, the work being performed at the site. 2. It was not in dispute that, if Astute had a health and safety duty pursuant to s 19(1) of the Act, the duty was breached and that the breach exposed the workers to a risk of death or serious injury. Facts 1. The evidence largely consisted of oral testimony of the relevant witnesses. Most of the witnesses required the assistance of an interpreter because English was not their first language. The oral testimony was contradictory in many respects and requires careful analysis on a witness-by-witness basis. There are some matters that are not in dispute or are established by independent evidence and I will begin by setting out those matters. Common ground 1. Apex entered into a design and construct contract with the owners of the site to construct industrial buildings on the site, in a project known as "Macquarie 4x4". Apex was the principal contractor for the site. 2. Apex developed a Work Health and Safety Management Plan (the WHSMP) for the site. The WHSMP required an Apex supervisor to induct workers on to the site by explaining the site-specific safety rules to them and to record that the induction had taken place. 3. On 12 August 2019, Apex issued a purchase order to Greater Civil relating to the demolition work, specifying a price for the demolition of the existing building and a price for removing structural steel (beams and purlins) and stockpiling it on site. The owner wanted to preserve the structural steel from the demolition of the industrial building on the site, so that it could be reused at a different site. This required the removal of the structural steel by hand rather than through the use of a machine such as an excavator. Apex does not ordinarily undertake demolition work, and this was the first time that it had contracted with Greater Civil. 4. Greater Civil had a demolition licence. The sole director of Greater Civil was Harry Taleb, the son of Jamal. Jamal was nominated by Greater Civil as its site supervisor for the work. Jamal was also known as "Jimmy" at the site. 5. Greater Civil prepared a Demolition Work Plan that was submitted to Apex setting out the demolition methodology to be adhered to. I note for present purposes that Greater Civil did not identify that there was any asbestos to be removed from the building to be demolished at the site. 6. Greater Civil submitted two Safe Work Method Statements (SWMS) dated 16 August 2019 to Apex as the principal contractor. One of the SWMSs submitted was directed to the risks posed by high-risk construction work (HRCW) and identified the risk to workers from working in close proximity to moving plant. The SWMSs did not make any reference to the risk posed by working at height during the course of the demolition work. 7. Greater Civil did not have sufficient labour to undertake the demolition work at the site. Jamal contacted Ramzi Mohamed, the sole director of Astute, to provide labourers to undertake the demolition work at the site. The basis on which the workers were engaged is in dispute. 8. Astute operated a business conducting manual demolition work consisting of timber strip-out, roof tile removal and non-friable asbestos removal. Astute held a licence to remove non-friable asbestos issued by SafeWork NSW. Astute did a lot of work removing asbestos from houses. Astute also held itself out as undertaking demolition and excavation work, but it did not have a licence to do so. If it secured that type of work, it would contract it out to others. Ramzi was the sole director and shareholder of Astute. Ramzi had a licence to operate an excavator. 9. Astute regularly contracted with a number of workers to provide labouring services on its jobs. At the time of the incident, each of the workers were engaged as an independent contractor by Astute. Each worker had supplied an Australian Business Number (ABN) to indicate that they were registered for GST, and payments for their labouring work were made by transfer into a nominated bank account. 10. Bishnu had worked for Astute since about the middle of 2015. Bishnu was from Nepal and was good friends with Raju Bk. 11. Raju began work for Astute in about August or September 2019. He was introduced to Ramzi by Bishnu. Raju was also from Nepal. 12. Kanna commenced work as a casual labourer for Astute in about 2017. Kanna was from Sri Lanka and spoke Tamil. 13. Prasanth worked for Astute since about 2018. Prasanth was from Sri Lanka, spoke Tamil and was good friends with Kanna. At some time prior to the incident, they shared a house for a period of about six months. 14. Yehya Aboucham worked for Astute before the incident but could not remember how long for. 15. In the evening of 19 August 2019, in accordance with the usual practice, Ramzi sent a text message to Kanna stating the address of the site and specifying a start time of 7.00am. 16. On 20 August 2019, Bishnu, Raju, Kanna, Prasanth and Yeyha were inducted on to the site by Enrico Manlapid (Eric), the supervisor appointed by Apex. Each completed a form entitled "Apex Building Systems Pty Ltd Induction Record" (induction record) in which they each nominated Astute as their employer. 17. There was no evidence that Ramzi was ever inducted on to the site. 18. On 20 August 2019, the workers got onto the roof of the building to be demolished and removed the roof sheets of the building, exposing the structural steel underneath. 19. On 21 August 2019, the demolition work at the site continued, with the workers dismantling the steel structure of the building and storing the beams and purlins on the site. 20. On 21 August 2019, the excavator was being operated by Jamal. At some point during the day, the bucket, which had been attached with the front edge of the bucket facing the excavator, was detached from the jib, before being reattached so that it faced the opposite direction, i.e., with the front edge of the bucket facing away from the excavator. The bucket was attached to the jib in this way so that workers could be lifted up in it to reach the bolts that needed to be undone. 21. At some time after lunch on 21 August 2019, Bishnu left the site. At some point, Kanna and Prasanth got into the bucket and were lifted up in it to reach areas where bolts needed to be removed from the purlins to dismantle the steel structure. 22. None of the workers in the bucket were provided with any means of fall prevention or fall protection. 23. While Kanna and Prasanth were in the bucket, it detached from the jib of the excavator and fell to the ground with the men in it. Prasanth was thrown clear and sustained minor injuries. Kanna sustained the following injuries: 1. a fracture in the right anterior mandible; 2. posterior fractures of the left 4th, 5th and 6th ribs; 3. a fracture through the neck of the left scapula; and 4. a fracture of the left humerus requiring open reduction and internal fixation. 1. Kanna was taken to Westmead Hospital in a vehicle driven by Jamal. Ramzi went to the hospital in his own vehicle. A number of the other workers also went to the hospital. 2. Kanna was admitted to the hospital. He underwent surgery and was discharged 10 days later. Mr Arumugam's evidence 1. Kanna gave evidence by audio-visual link from his home in Sri Lanka. 2. He first came to Australia from Sri Lanka in October 2012 on a Bridging Visa class E. His visa entitled him to work, but this changed after his refugee visa application was rejected. 3. Kanna obtained his General Construction Induction Card (white card) on 10 September 2015. 4. In or about 2017, Kanna commenced work as a casual labourer for Astute. Work was not available every day and Kanna was informed that he was required to work in a number of ways. First, he would often receive text messages from Ramzi specifying the address of the worksite for the following day and the start time, which varied according to the location of the work. Second, through discussions with Ramzi on the telephone or in person at worksites. Third, through discussions with other workers, including Bishnu, who Kanna understood was a supervisor for Astute. 5. At the beginning, Kanna was paid cash for the work he performed for Astute, before being asked at some time prior to the incident to provide an ABN and bank account details. The evidence disclosed that, from at least June 2019, payments for Kanna's work were made by Astute into an account in the name of Aarthmaraj Senapathi, who was a friend of Kanna. Kanna gave evidence that he also provided either Mr Senapathi's ABN or tax file number (TFN), he could not remember which, to Ramzi at the same time as providing the bank account details. Kanna was paid $220 per day. 6. When Kanna worked for Astute he was given instructions on what to do by Ramzi if he was present on site, or otherwise by Bishnu. Ramzi usually came to sites a bit later in the morning, between 10.00am and 11.00am. Bishnu carried tools in his vehicle for the workers to use on site. 7. Kanna regularly worked with Bishnu, Prasanth, Raju and Yehya. Kanna gave evidence was that he was told by both Ramzi and Yehya on separate occasions that they were cousins. 8. In the evening of 19 August 2019, Ramzi sent a text message to Kanna stating the address of the site and specifying a start time of 7.00am. 9. On 20 August 2019, Kanna attended the site and was inducted by Eric, a supervisor employed by Apex. Kanna's evidence was that his induction record was not completed in his handwriting but that he did sign it by putting the initials "KG" on it where his signature was required. He understood from working on other sites that these forms were required but did not really understand English sufficiently to complete them. His evidence was that he thought that Prasanth completed the induction record for him at the site. His induction record included his white card number and specified Prasanth as his next of kin. 10. On 20 August 2019, Kanna removed the roof of the building by removing the roofing screws and then the metal roof sheets. 11. On 21 August 2019, after Bishnu was required to leave the site, Kanna gave evidence that he was instructed by Ramzi to get into the bucket to do the work that Bishnu had been doing. When Kanna initially refused, Ramzi said words to the following effect: There is not much work left to be done. If you finish it, you can go home early. 1. Kanna then got into the bucket with Prasanth and the excavator was operated by Jamal to lift them about 7m into the air to undo the bolts in the steel structure. At the time, Kanna and Prasanth had an air gun and a crowbar to undo the bolts. 2. During the course of undoing bolts, Kanna heard a big noise and then the bucket fell off the jib and to the ground below. 3. Kanna gave evidence that he was later given money for the work done at the site by Prasanth. Prasanth told Kana when he was in hospital that he was going to visit Ramzi to get his pay and asked him if he wanted to collect his too. Prasanth later gave Kanna some cash which he understood was his pay for his work on 20 and 21 August 2019. 4. In cross-examination, Kanna stated that he spoke Tamil, had a "little" understanding of English and could only read "a bit". If he had problems with his understanding at work, Prasanth, and/or another worker Nithiyananthan (Nithy), would translate for him. His experience was that he was required to sign forms like the induction record at various work sites and that Prasanth usually told him what he needed to sign. 5. When he was asked to get into the bucket by Ramzi he said that he complained in English, saying words to the effect, "I can't go inside". 6. In his first interview with Inspector Holder on 10 September 2019, Kanna told the Inspector what happened in Tamil and Prasanth interpreted for him. 7. Kanna denied knowing about the existence of Greater Civil as an entity before the incident. 8. Kanna gave evidence that he liked Ramzi while he worked for Astute but became angry with him when he went to the hospital and said that Kanna had been injured in a bike accident. When asked if he was still angry, he replied in words to the effect, "I do not have such feelings". 9. Kanna stated that he did not provide his own bank account details to Ramzi because at the time he had a credit card debt of $8,000 and was concerned that the bank would seek to recover that debt from his account if funds were deposited into it. He denied telling Ramzi that it was his own account in his real name, saying that he told Ramzi that it was his friend's account. Kanna stated that he also gave Mr Senapathi's ABN or TFN to Ramzi at the same time, but he could not remember which. Kanna could not remember if he told Inspector Holder that he was only paid in cash but accepted that the true position was he was paid cash initially and then by bank transfer. He could not explain why he did not tell Inspector Holder about using Mr Senapathi's bank account. 10. Kanna gave evidence that, despite expecting to be paid by bank transfer, he accepted Prasanth's offer to collect cash from Ramzi because he was worried that he would not get paid after Ramzi told the people at the hospital that his injuries were sustained in a bike accident. Kanna elaborated on this answer alleging for the first time in his evidence that he was asked to remove his work shirt and work boots and told to put on a different shirt, to give the impression to the hospital staff that he was not injured in a workplace incident. Mr Ale Magar's evidence 1. Bishnu first started working for Astute in about mid 2015 on a casual basis as a labourer. In 2019, he worked for Astute about two to three days each week. In 2019, Bishnu also worked as a cleaner and as an Uber driver. 2. Ramzi would let Bishnu know if he had work for the following day by telephoning him or sending him a text message, generally on the night before a job. 3. Bishnu earnt $250 per day when he worked on jobs for Astute. He was paid by bank transfer but was also sometimes paid in cash by Ramzi. 4. Bishnu denied providing instructions and directions about tasks to other workers when he was working for Astute. He accepted that he would pass on instructions to other workers given to him by Ramzi from time to time. During his time at Astute, Bishnu worked with Kanna, Raju, Yeyha and Prasanth. 5. Bishnu gave evidence that he worked on other sites with Jamal. He described Jamal as the "boss" of the Vineyard site. On the first day at the site Bishnu worked with Yeyha, Kanna, Prasanth, Raju and Jamal. They removed parts of the roof and cleaned up the site. They were able to access the roof using a ladder. On the second day at the site, they worked on demolishing and cleaning the garage area. The excavator was being used to clean up the area outside the building but was not being used inside. 6. Bishnu gave evidence that Ramzi arrived on the site on the second day between 9am and 11am. When Ramzi arrived Bishnu spoke to him about needing safety equipment including a scissor lift on site to be able to take the beams out. His evidence was that he spoke to Ramzi about getting the necessary safety equipment because "we were working with Mr Mohamad". Bishnu told Ramzi that Jamal wanted him to get into the excavator bucket to do the work but he did not want to do that because it was unsafe. 7. Bishnu gave evidence that he did work dismantling the structural steel and the office area of the building that was being demolished. The office was on the first floor and the areas he needed to access were not very high, so he stood on a ladder to take off about three or four beams in that area. 8. Bishnu gave evidence that he left the site after lunch on the second day at about 1pm or 2pm. Before he left he spoke to Ramzi. Bishnu's evidence was that they spoke about safety equipment and in particular scissor lifts, scaffolding and harnesses. His evidence was that Jamal had been talking about taking the beam off the roof of the garage using the excavator. Bishnu told him that, without scaffolding, a scissor lift or safety equipment, they would not be able to take the beam out. Bishnu said that he discussed this with Jamal and Ramzi. 9. In his evidence, Bishnu was taken to the transcript of the interview that he had with Inspector Holder. He was taken to passages where it was alleged that he told Inspector Holder that he had been in the bucket prior to leaving the site. Bishnu gave evidence that he did not understand the question that Inspector Holder was asking. Bishnu's evidence was that he intended to tell Inspector Holder that he told someone that he did not want to use the bucket to take the beam out and that he misunderstood the question, thinking that it was referring to the removal of beams in the office, which he did with the use of a ladder. 10. Bishnu was taken to the answers in the record of interview where he stated to the effect that Jamal had told him to get into the bucket while he was driving it. Bishnu's evidence was that he misunderstood the question because he did not have an interpreter available and that he was referring to his discussions in the morning with a person about how they were going to remove the beams. Bishnu's evidence was that Ramzi agreed with him that they should not use the excavator and talked to Jamal about getting a scissor lift. 11. Bishnu's evidence was that when he was on the site, he did not see anyone in the bucket and that the excavator was not in operation. 12. Bishnu was told by Raju later in the day that there had been an incident at the site. He was told that Kanna was in the bucket when it fell and that he did not know that Prasanth was also in the bucket. 13. Bishnu's evidence was that he could not remember whether he was paid for work done at the site. He expected to be paid by Ramzi for that work Bishnu has not worked for Ramzi since the incident. Mr Thiruchelvaraman's evidence 1. Prasanth first came to Australia in 2012. He first worked in Brisbane in about 2013 for about three years. He came to Sydney in 2016 and began working with friends in construction work and cleaning. Nithy first introduced Prasanth to Ramzi. Prasanth first worked for Astute in about 2018 for three to four days per week. Ramzi would either text him directly to let him know if there was work or Prasanth would find out from one of his co-workers. The text messages from Ramzi would usually come in the evening before the job or early in the morning of the day of the job. Prasanth worked regularly with Bishnu, Kanna, Raju and Yeyha. 2. Prasanth's evidence was that sometimes Bishnu would give directions to the workers although it was usually Ramzi who did so. 3. At the site, Prasanth gave evidence that he was working with Ramzi. Prasanth's evidence was that he only worked at the site for one day being 21 August 2019, with Bishnu, Kanna, Ramzi, Jamal and Raju. The workers were removing steel from the roof which was accessed by a stairway. After the stairs were removed, the workers used the excavator bucket to access the roof. 4. Prasanth gave evidence that Ramzi arrived on site on the 21 August 2019 about an hour after he did and remained on the site until after lunch. He left the site at some point but was on the site for most of the day. Prasanth's evidence was that Ramzi was gone for about 30 minutes during the day. Prasanth saw and heard Ramzi giving instructions to the workers, including telling Prasanth to get into the bucket. Jamal was the only person operating the excavator at the site. Prasanth's evidence was that Kanna and Bishnu were in the bucket first. They were working in the bucket at some point between the morning and about 3pm, for a period of about three to four hours. 5. Prasanth did not hear any discussion about Kanna and Bishnu getting into the bucket. He recalled that Bishnu had left the site early, at about 3pm. He did not see Bishnu talk to Ramzi just before he left. After Bishnu left, Kanna and Prasanth went into the bucket. From the bucket they were removing nuts and bolts from the left-hand side of the roof using a pinch bar, shifting spanner and screw gun. Ramzi asked Prasanth to do work from the bucket with Kanna after Bishnu left the site. They worked in the bucket for less than an hour before it fell. 6. While Prasanth and Kanna were working from the bucket, it fell from the height of the top of the double storey building. Prasanth fell some distance away from the bucket. He suffered minor grazing. 7. Kanna landed inside the bucket and was unconscious and bleeding. Ramzi was standing nearby at the time that the bucket fell. 8. When the bucket fell everyone crowded around Kanna. Ramzi took Kanna and Prasanth to the hospital. Prasanth was unsure whether he was taken to the hospital by Ramzi or Jamal. 9. At the hospital they went into the emergency department and sat in the waiting area. Prasanth spoke to a nurse and then waited for a long time before leaving. Ramzi waited with them at the hospital but Jamal did not. 10. Prasanth did not hear Ramzi or Jamal tell Kanna anything about what he should say had happened to him when they got to the hospital. 11. Prasanth and Kanna remained in contact after the incident and Prasanth visited Kanna in the hospital. They did not speak about being paid for the work that they did at the site. Prasanth expected to be paid by Ramzi for the work at the site.Prasanth's evidence was that Ramzi would sometimes pay in cash and at other times by bank transfer. He had provided an ABN to Ramzi about two or three months after starting work for Astute. Ramzi told him that if he could provide an ABN he would be paid a bit more. 12. Prasanth identified from the photographs on Kanna's phone that the workers pictured were wearing an Astute Earth Works work shirt. 13. Prasanth and Kanna lived together for about six months before the incident. They are no longer in contact. They ceased to be in contact after Kanna returned to Sri Lanka. 14. Prasanth identified his handwriting on Kanna's induction record. Prasanth's evidence was that some of the workers were removing asbestos at the site, but he did not do that work on the day. He was engaged in cleaning up. He believed that Bishnu, Nithy and Kanna were removing asbestos. 15. After the incident, Prasanth continued to work for Ramzi for some time. Prasanth did not know if Kanna got paid for the work at the site. Prasanth was not paid, and he did not ask Ramzi to be paid as he had little interaction with him after the incident. Mr Bk's evidence 1. Raju started working for Ramzi in about August or September 2019. He had been introduced to Ramzi by Bishnu. 2. Raju was initially paid cash for his work, but after providing an ABN was paid by bank transfer. 3. Raju would usually travel to work sites with Bishnu. Ramzi would send Raju text messages if there was work with a start time and an address of the work on the day before the job. Sometimes Ramzi would tell Bishnu about the work and he would pass the information on to Raju. Sometimes Ramzi would speak to Raju about work over the telephone. 4. Ramzi had told Bishnu that there was a job at the Vineyard site on the 20 August 2019 and Bishnu told Raju. He travelled to the site with Bishnu. At the site, Yeyha, Kanna, Prasanth and Bishnu were also working. 5. On 20 August 2019, they undertook demolition work. They were given instructions by Jamal who was present on the site. Kanna, Prasanth and Bishnu also gave some instructions to Yeyha and Raju. 6. On 21 August 2019, Raju attended the site again and worked with Kanna, Bishnu, Yeyha and Jamal. He arrived between about 7am to 7.30am, but Ramzi came later. On that day, Bishnu, Prasanth and Kanna were removing timber and Raju and Yeyha were clearing away materials had been removed by others and stacking it on the site. 7. Raju's evidence was that Ramzi was coming and going from the site throughout the day and was there at the end of the day. While he was on the site, Ramzi spoke to Jamal and occasionally assisted if needed. Jamal was operating the excavator on that day and Prasanth and Kanna were in the bucket trying to unscrew bolts from a metal beam. 8. Raju did not see the incident because he was in the office cleaning when he heard the noise. He and Yeyha went out to see what the noise was. Raju and Yeyha had been working in the office and were going up and down a small ladder. From the top of the ladder Raju could see the excavator being operated outside. 9. Raju's evidence was that the excavator was in operation with Kanna and Prasanth in the bucket for 20 to 25 minutes before the bucket fell. Ramzi was on site at the time that the excavator was being used to lift Kanna and Prasanth. 10. When Yeyha and Raju heard the noise, they went outside the office and saw Kanna and Prasanth on the ground. Kanna looked in a lot of pain. Jamal and Ramzi were at the scene when Raju and Yeyha arrived. 11. Jamal drove Kanna and Prasanth to the hospital. Ramzi followed them in his car with Raju and Yeyha. Raju and Yeyha waited outside emergency until Jamal and Ramzi took Kanna and Prasanth into the hospital. Kanna was admitted and Prasanth was discharged after about an hour. 12. Raju expected that Ramzi would pay him for the work on the site. He could not remember if he had been paid in cash for the work. He said that he had just started working for Ramzi and was being paid cash at that time. When he worked at the site, he did not have an ABN. 13. Raju denied telling Inspector Holder that Bishnu had been in the bucket first. Rather, he claimed that Prasanth and Kanna got into the bucket after Bishnu had left the site. He suggested that there may have been a misunderstanding because the interview was conducted in English. 14. Raju's evidence was that he had worked with Jamal on other sites before working with him on the Vineyard site. Raju's evidence was that he understood that he was working for Jamal on the Vineyard site because he was there during the whole job and giving instructions. Raju's evidence was that Ramzi never said anything directly about it being Jamal's work. 15. Raju gave evidence that on occasions Ramzi would say to the workers "this is my private work so you guys have to do a good job". On these jobs he would have a sign that would be placed on the fence outside the house where they were removing asbestos. 16. Raju observed that Ramzi and Jamal usually spoke to each other in Arabic at the site. 17. In cross-examination, Raju accepted that when he had worked at height for Ramzi on other occasions at other sites, that he had been provided with a harness by Ramzi. 18. Raju continued to work for Ramzi for some time after the incident, even after Bishnu left Sydney. He ceased working for Astute at about the start of the pandemic, which I understood to be in about March 2020. Mr Aboucham's evidence 1. Yehya's evidence was that he could not remember when he first started working with Ramzi. He had worked as a subcontractor and worked with a lot of people. 2. On 19 August 2019, Yehya telephoned Ramzi to ask if he had work and Ramzi told him to go to the site on the next day. 3. On 20 August 2019, he attended the Vineyard site and completed the induction record. He worked with Kanna, Raju and Bishnu at the site. On that day they undertook demolition work. Jamal was on site and gave instructions to the workers. Yehya did not see Ramzi at the site on the first day. 4. On 21 August 2019, the workers were doing general labouring work and cleaning up the site. Jamal continued to give the workers instructions. In the morning, Yehya was present when Jamal telephoned Ramzi and asked him to bring a ladder to the site. Yehya's evidence was that Jamal had asked him to make the call but that he said he could not because he had run out of credit on his phone. Ramzi arrived at about 11.30am, was told that the ladder was no longer needed and left the site straight away. He did not see Ramzi again on the site. Yehya spoke with Ramzi and Jamal at the site when Ramzi was present, and Yehya did not see Ramzi speak with anyone else at the site. 5. Yehya's evidence was that Jamal was operating the excavator from about 7.00am on the day to clean up the site. He also saw people being lifted and lowered in the bucket during the course of the day. He heard Jamal tell Kanna and Prasanth to get into the bucket in English and that they responded in words to the effect, "Okay, okay. No worries, I'm coming". 6. Kanna and Prasanth got into the bucket and were lifted up to do the work. As they were being lowered after finishing the job, the bucket fell. At the same time, Ramzi entered the site. 7. Ramzi told Jamal to call an ambulance but he refused, stating, "I don't want an ambulance on site". Jamal took Kanna to hospital in his vehicle with Prasanth and Yehya. Ramzi came to the hospital later in his own vehicle. 8. Yehya denied that he was related to Ramzi. Mr Manlapid's evidence 1. Eric's evidence was that when he saw that the workers nominated that they were employed by Astute on their induction records he queried this with Jamal, asking him if Greater Civil was using a subcontractor. Jamal told him that Greater Civil normally used Astute to provide labour for jobs, describing Astute as "like a sister company". He did not make any further enquiries on this topic. 2. On 21 August 2019, Eric was present on site but spent most of the day in his office. He saw the excavator being operated on the site and in particular when it was being used to demolish a brick wall. He left the site at about 3.30pm. At that time, it appeared to him that the workers were packing up for the day and he left because he believed that no more substantive work was to be undertaken. 3. Eric expected that a scissor lift would be used to remove the beams and the purlins, and that it would be hired by Greater Civil when it was required. He had discussed the need for a scissor lift with Jamal prior to the incident and that if he had seen workers being lifted in the bucket that he would have stopped the work. 4. In cross-examination, Eric accepted that he had not met and did not know Ramzi. On 23 August 2019, Jamal returned to the site with different workers and a scissor lift to complete the work. 5. Eric was unaware that an incident had occurred at the site until enquiries were made by SafeWork NSW. He subsequently prepared an incident report based on what he was told by Inspector Holder. Mr Taleb's evidence 1. Jamal began working in the construction industry in the 1990s. In about 2014 or 2015, he met Ramzi while working for a company, Active Demolition. Jamal left Active Demolition in 2015 and began working for his brother. In about 2017, Jamal commenced working for Greater Civil doing demolition and excavation work. Jamal was paid a weekly wage by Greater Civil. Jamal is licensed to operate an excavator and heavy vehicles. He usually worked as a supervisor on Greater Civil sites. 2. Jamal would contact Ramzi when Greater Civil had asbestos removal and/or strip out work to ask him if he could do the job on behalf of Greater Civil. This would occur every two to three months. On other occasions Ramzi would send Jamal labourers to do the work and Jamal would supervise them. In the six months leading up to the incident, Jamal worked on the site with Astute at least once. He could not say whether there were other occasions during that period. When Greater Civil gave work to Ramzi it would usually pay him in cash. 3. In about August 2019, Greater Civil was approached by Apex about undertaking the demolition work at the site. Jamal was at the site and carried out the work. He could not remember when he first attended the site, but when he did, he met with Eric from Apex and they discussed the demolition process. 4. Before commencing work at the site Jamal called Ramzi and asked for labourers. Ramzi asked how many labourers Jamal needed, and Jamal told him that he would need "four or five". Ramzi said "I will organise them and send them to your job site" and asked for the address. Jamal told Ramzi that he was welcome to check out the work site for himself to give Jamal an opinion as to how many labourers Ramzi thought would be needed for the job. Jamal could not remember whether Ramzi actually went to the site. 5. Jamal could not recall if he discussed a price for Ramzi providing labourers at the site. Greater Civil would regularly pay $200 for each labourer sent by Ramzi. Jamal did not remember whether they discussed who would pay the workers, but it was understood that Greater Civil would pay Ramzi who would then pay the workers. Greater Civil did not collect the names and details of the workers or their bank account details. No wage slips were prepared by Greater Civil for the workers. 6. Jamal gave evidence that the workers that Ramzi sent were inducted by Eric and then Jamal showed them what they were supposed to strip out and told them to save the roof sheeting as the owner wanted to keep it. 7. On 21 August 2019, Jamal was on site with his two labourers and the four or five labourers sent by Ramzi. Jamal described Bishnu as "the main boy" because he could speak English and would translate instructions given by Jamal to the other workers. Jamal had worked with Bishnu on other sites before the incident. On each occasion when Jamal worked with Bishnu, he was working for Ramzi. Jamal did not understand Bishnu to have a supervisory role for Astute. 8. The excavator on site belonged to Greater Civil. It had been on the site from the beginning of the work. It was operated by Jamal and used to clean up the site, lift beams, demolish walls, move timber and load rubbish onto the truck. It was also used to lift and lower the workers in the bucket. 9. Jamal's evidence was that when Ramzi arrived on the site on 21 August 2019 they had a discussion about how the work was progressing and how the workers were going. Jamal saw Ramzi on his phone prior to the incident. Jamal also saw Ramzi speaking to the workers. 10. Jamal understood that Ramzi had been trying to use the excavator prior to Jamal using it to raise the workers. He recalled seeing Ramzi speaking with Kanna and Prasanth near the excavator prior to them getting into the bucket but did not hear the conversation. He saw this happening when the workers were packing up and about five minutes before one of his labourers, Gabbi, came to ask Jamal about using the excavator. 11. At about 3.30pm, Jamal was approached by Gabbi and was told that they needed him to operate the excavator so that they could take a beam out. They had unscrewed the beam and did not want to leave it where it was in case it fell overnight. Jamal saw Ramzi standing next to the excavator but as he approached to operate the excavator, Ramzi walked away. Jamal detached the bucket of the excavator and re-attached it so that it was facing forwards for the workers to stand in. There were two workers standing nearby. Jamal gestured for them to get into the bucket using a sweeping motion with his left hand which they did. Once they were in the bucket he lifted them up. They were in the air for about a minute before the bucket fell. Ramzi was present. Jamal could not remember whether Ramzi spoke to the workers before they got into the bucket. Jamal denied that the workers were being raised in the bucket for about 20 to 25 minutes before the bucket fell. 12. Jamal's evidence was that Ramzi was in his eyesight while he was operating the excavator. Jamal said that Ramzi was on the site for at least an hour before the incident. Jamal denied that Bishnu had ever been in the bucket of the excavator, and he did not recall Bishnu leaving the site early on the day of the incident. Jamal did not recall Ramzi speaking to Bishnu before he left the site. Jamal did not recall Bishnu refusing to get into the bucket. He also did not recall a conversation with Ramzi telling him that he should not put workers in the bucket but rather get a scissor lift. Jamal denied having a conversation with Ramzi in which he refused to get a scissor lift. Jamal accepted that he had a conversation with Ramzi about a scissor lift at the beginning of the job and again on 21 August 2019. 13. After the incident occurred Jamal put the injured worker into his ute and asked Ramzi where the closest hospital was. They decided to go to Westmead Hospital. Jamal took the injured worker into the emergency department and Ramzi arrived shortly afterwards. Jamal denied that they discussed what the hospital should be told about the accident. Jamal paid the fee requested by the hospital. Jamal accepted that he had a conversation with Ramzi about workers compensation but said that it occurred some days or weeks after the attendance at the hospital. 14. Jamal told Eric about the incident about two or three weeks after it had occurred. 15. Jamal denied being Ramzi's friend. He said when they spoke over the telephone it was about work. 16. When Jamal called Ramzi to supply labourers, they usually would not discuss price as there was a standard price of $200 per labourer. That money was paid to the labourer and there was no additional money paid to Astute for supplying the labourers. If Ramzi was working as a labourer at a Greater Civil site, he would be paid more than an ordinary labourer. 17. Jamal's evidence was that when Astute carried out contract work for Greater Civil, Ramzi usually attended the site. 18. Generally, when Greater Civil asked Ramzi for labourers, it would pay Ramzi $200 per worker per day in cash. Jamal understood that this was not a payment to Astute but that he was giving the cash to Ramzi to be distributed amongst the workers. There was no paperwork generated by Greater Civil for any of these transactions. 19. Jamal's evidence was that he told the workers what to do in the morning and left them to do the work until the end of the day. He would check on the work that they had done at the end of the day. When Ramzi came onto the site, Jamal's evidence was that he had the authority to check on his workers and to see if they were doing the right thing. 20. Jamal conceded in his evidence that he directed the Astute labourers to do the strip out work because Greater Civil was paying Astute to do that work, which included the removal of the beams on 21 August 2019. This concession was inconsistent with the rest of his evidence. 21. Jamal also conceded that he could have lifted the workers up in the excavator bucket on more than one occasion on 21 August 2019, but he could not remember if he did so. 22. He denied participating in a conversation with Ramzi or the injured worker or telling anyone at the hospital that Kanna had been injured in a bike accident. He did not recall anyone removing Kanna's boots or work shirt before going into the hospital. 23. After the incident Ramzi informed Jamal in a telephone conversation that the injured worker had sustained a broken hand. They also had a conversation about insurance after which, Jamal spoke to his insurance broker. After speaking to the broker, Jamal called Ramzi and told him that the broker said they could not put Kanna under Greater Civil's insurance. 24. Jamal agreed that Ramzi came to the site to provide a step ladder. He then left the site at some stage and came back later. Jamal could not remember how long Ramzi was away for. 25. Jamal's evidence was that the workers were working "on his instructions", but they were not working for Greater Civil on a full-time basis or under an ABN. Jamal did not know if the workers had ABN numbers or not. Jamal stated that he was the supervisor of the workers at the site, but that Ramzi was the boss of the workers who he had sent to the site. 26. Jamal denied panicking or being scared that he would get into trouble for the incident and therefore claimed that the workers were employees of Ramzi to shift the blame to him. Jamal's evidence was that Greater Civil paid Ramzi for the two days that the workers were on site in cash. Jamal could not remember whether it was him or his son, Harry, who gave the money to Ramzi. Jamal did not know whether the money to pay the workers was withdrawn from the company bank account or the cash came from another job. Mr Mohamed's evidence 1. The parties agreed that it was appropriate for me to make orders pursuant to ss 26 and 28 Evidence Act 1995, varying the order and means by which Ramzi would give his evidence because he was the sole director of Astute and responsible for its management and day-to-day operation. Astute accepted that he was an unfavourable witness for the prosecution and that he could be cross-examined pursuant to s 38 Evidence Act 1995. Ramzi was called by the prosecutor but led through his evidence in chief by counsel for Astute, and then cross-examined by counsel for the prosecutor, before being re-examined by counsel for Astute. 2. Ramzi described himself as the owner of Astute Earth Works. He is the sole director of the company. His wife keeps the books for the company. 3. Astute holds a licence to remove non-friable asbestos and specialises in this work. When he got enquiries from customers looking to do excavation or demolition work, he would pass the work on to others. Astute's ordinary work involves removal of asbestos and strip out, being the removal of timber and roof tiles, usually in domestic buildings. 4. Before performing asbestos removal, Astute was required to notify SafeWork of an intention to remove asbestos. It would then be granted a certificate by SafeWork that would permit the work to proceed. Notice of asbestos removal work was always given to the neighbours of the properties where work was being carried out. 5. Ramzi's evidence was that Mr Arumugan introduced himself as Kanna and Ramzi did not know his full name was Kugenthiran Arumugam. Ramzi sighted Kanna's white card but did not record the details of it for Astute's records. Kanna commenced working for Astute in about 2017 or 2018. 6. When the workers were performing asbestos removal work, Astute would provide them with tools and overalls to wear. When the workers were performing strip out work, many sites required the workers to wear high visibility shirts as a safety precaution. If a worker did not have a high visibility shirt, Ramzi had spare shirts in his vehicle that they could wear, which had Astute's logo, phone number and the type of work that it performed printed on them. Ramzi gave Bishnu a work shirt for his use but could not remember any other worker being given one of those shirts. Ramzi always had some of the work shirts available for the workers to wear if they did not have one. 7. Ramzi's evidence was that Astute did not work as a sub-contractor to other companies, but it was referred work by other companies, but usually companies that were smaller than Apex. 8. Ramzi gave evidence that he did not receive an ABN from Kanna until some months after he commenced work. Ramzi's evidence was that Kanna gave the name Senapathi Aathmaraj when he started working for Astute. Kanna got an ABN after Ramzi told him that he needed one so that he could be paid for his work. Kanna sent the ABN and his bank account details by text message to Ramzi. Ramzi denied knowing that the bank account details and ABN did not belong to Kanna, but rather were those of his friend. Ramzi's evidence was that he paid all of the workers via a bank transfer and never in cash. He accepted that he did pay Bishnu in cash on some occasions. Ramzi asked the workers for their bank details as soon as they started working with him and he would always pay them by transferring the money into those bank accounts. He denied ever saying to the workers that they would be paid more if they got an ABN. 9. Ramzi's evidence was that Jamal always paid workers in cash for every job they did for him. Ramzi and his workers would only ever go to sites to work with Greater Civil as labourers in their personal capacity, and on those occasions were not working for Astute. Ramzi usually commenced his asbestos removal work between 8.30am to 9.00am because of the need to inform the neighbours of the work to be done. Work for Greater Civil usually began at 7.00am. Ramzi gave evidence that if the workers got to a job site before him that Bishnu would usually give them directions. Bishnu worked as a supervisor on site for Astute and gave the workers instructions including what to do and about how to do it safely. 10. Prior to 20 August 2019, Ramzi had worked on sites with Jamal in his personal capacity as a labourer. He did so about once or twice per month. Astute did not work on the same sites as Greater Civil. Astute usually did work at domestic residences. When Ramzi worked as a labourer for Greater Civil, he would work with labourers who also worked for Astute including Bishnu, Raju and Kanna, who would work on sites for Greater Civil if they did not have other work. Jamal paid Ramzi in cash for the work he did as a labourer. Jamal did not provide a receipt or a wages slip. Jamal also paid the other workers in cash including Raju, Kanna and Bishnu. 11. On occasions when Ramzi was working as a labourer for Jamal, Jamal would ask Ramzi to bring workers with him. Ramzi would then contact Bishnu, who would sometimes bring Raju along. If Kanna contacted Ramzi about whether he had work, he would tell Kanna that there was work available for Jamal. If Kanna came to the site, he would often bring Prasanth. 12. Ramzi's evidence was that he did not know if the other workers knew that Jamal's company was called Greater Civil. Ramzi's evidence was that there was some asbestos removed from the site, but Astute was not responsible for applying for a clearance certificate to remove the asbestos. 13. Ramzi's usual practice was to hold a toolbox talk on each of Astute's sites prior to commencing work. He required the workers to sign their name on the toolbox talk form as a record that the toolbox talk took place. He did not give the toolbox talk or prepare a toolbox form for the site because it was not Astute's work. 14. On 19 August 2019, Ramzi worked removing asbestos at a house in Picnic Point with Yehya, Kanna, Raju and Prasanth. On that day, he received a call from Jamal asking him to help to find workers for the site. This was the first time Ramzi had heard about the job. At about 4.30pm, Jamal sent Ramzi a text message with the address for the site of 18 Park Road, Vineyard. On receipt of the text message Ramzi called Bishnu and then Kanna. Ramzi told Kanna the following: I have no work tomorrow. If you're interested to work for someone else, this is Jamal's address and his time start, and good luck. Start with him. 1. Ramzi's evidence was that Kanna had worked directly for Jamal in the past and that they could proceed on the usual basis because he did not need to introduce them. Ramzi's evidence was that he did not get paid for referring the workers to Jamal and was not expecting to be paid for doing so. Ramzi did not intend to pay Kanna or the other workers for this work. On previous occasions when the workers had worked for Jamal, Jamal paid them directly when the work was complete. 2. On 20 August 2019, Ramzi did not go to the site. On that day, he was travelling to different sites quoting jobs for Astute. He did not call Bishnu or Kanna on that day. 3. On 21 August 2019, Ramzi was at home with his wife and intending to attend the Book Week Parade at his daughter's primary school. However, that morning Ramzi received a call from Jamal asking for a long ladder to be brought to the site. Ramzi took the ladder to the site at about 11.30am and stayed there for about 20 minutes. He took the ladder to the site as a favour for Jamal. 4. When he was at the site, he had a conversation with Bishnu about safety and how the work was proceeding. Bishnu mentioned something about Jamal wanting to use the bucket of the excavator to lift workers up. Ramzi told Bishnu that he should not do anything unsafe. Ramzi did not say anything to Jamal about the excavator. He said it was possible that he talked to Jamal about getting a scissor lift at this time. 5. Ramzi denied speaking to Kanna or Prasanth about getting into the bucket or directing them to do so. 6. Ramzi recalled Bishnu asking whether he could leave the site at lunch time. Ramzi told Bishnu that he should ask Jamal about it and that he could not remember seeing Bishnu leave the site. 7. Ramzi gave evidence that he left the site to price a job and then went to the tip to dispose of asbestos at Eastern Creek. He drove a utility vehicle owned by Tornado State Works, a company owned by his brother. His evidence was that he shared the truck with his brother, but it was routinely used by him to undertake work for Astute. Ramzi's evidence was that he went to dispose of asbestos sheeting which had come from more than one site, and he nominated that it had come from the Hurstville City Council area. Ramzi produced records from the tip to indicate that the nominated truck entered the Eastern Creek site at 2.24pm and left at 2.50pm. Ramzi's evidence was that the trip from the Vineyard site to the Eastern Creek tip took between 40-60 minutes. After disposing of the asbestos at the tip, he returned to the Vineyard site to collect his ladder, arriving at about 4.00pm. 8. When he returned to the site, he saw Jamal near the excavator and the workers were around it, cleaning up. Ramzi was initially on the phone and not paying attention to what was happening. Ramzi's evidence was that he then saw Jamal indicating with his hand for the workers to get into the excavator bucket. Ramzi approached Jamal and asked him what he was doing. Ramzi could not remember whether what Jamal said was in Arabic or English. Jamal told him they needed to raise the workers in the excavator bucket to take out the screws. Ramzi told him that they should be using a scissor lift. Jamal responded "I know what I'm doing. Don't tell me what to do. I'll do it in my way". Ramzi's evidence was that the workers were being raised in the bucket as the conversation was taking place. Ramzi felt that he could not direct the workers not to get into the bucket because they were working for Jamal. Jamal then raised Kanna and Prasanth in the excavator bucket. The bucket fell about five minutes later. In this period Ramzi did not say anything to the workers but observed what was happening. 9. After the bucket fell Ramzi told Jamal that he needed to call 000. Jamal refused. He picked Kanna up and drove him to the hospital in his vehicle. Jamal said to Ramzi in relation to calling an ambulance, "Don't do this. After, I lose the job. I don't want anyone to know". Jamal put Kanna in his vehicle and drove him to hospital with Prasanth. Ramzi followed them in his car with either Yehya or Raju. 10. Jamal told Ramzi when they got to the hospital that Kanna did not have a Medicare card, so Jamal paid for the hospital visit. Jamal gave Ramzi's name and telephone number to the hospital as the contact for Kanna. 11. Ramzi denied paying any of the workers for the work they performed at the Vineyard site. Ramzi denied paying Kanna in cash because he never did so. He always paid by bank transfer. Ramzi denied that the workers were working for Astute. 12. After the incident Jamal and Ramzi discussed workers compensation in relation to the incident. Ramzi alleged that Jamal asked him to put Kanna on his workers compensation because he wanted Ramzi to take responsibility for the incident. Ramzi denied asking Jamal to put Kanna on his workers compensation because he wanted Jamal to take responsibility for the incident even though Kanna was working for Astute at that time. 13. Ramzi gave evidence that he told Inspector Holder during his interview that Kanna had lied to him about his real name but accepted that that topic was not referred to in the record of interview. Ramzi could not remember telling Inspector Holder anything in the record of interview about the workers compensation issue. Evidence in Astute's case Ms Samman's evidence 1. Astute called Maisa Samman, Ramzi's wife, to give evidence concerning her work for the company. 2. Maisa undertakes general paperwork for Astute. She manages bookings for asbestos removal jobs and prepares the necessary paperwork for these jobs to take place. When Astute accepts an asbestos removal job, Maisa lodges an online notification to SafeWork and monitors the issue of a clearance certificate so that the work can commence. 3. Maisa prints out an Asbestos Removal Management Plan for Ramzi to take to each job site. I pause to note that the Asbestos Removal Management Plans set out how the work is to be done by Astute. It includes provisions on how the work will be done safely. Asbestos Removal Management Plans are usually signed by the workers undertaking the work. 4. Maisa's evidence was that Astute did not prepare any paperwork in respect of the work at the site and to her understanding it was not Astute's job. She could not recall if Ramzi did any work on 19 or 20 August 2019 but accepted there was paperwork in relation to an asbestos removal job on 19 August 2019. 5. On 21 August 2019, Maisa and Ramzi intended to attend the Book Week Parade at their daughter's school. Maisa produced two pictures of her daughter in costume taken with her daughter's teacher when she was dropped off to school on that day. After taking her daughter to school, Maisa returned home and intended to return to school just before 10.00am for the parade. Ramzi was supposed to come to the parade with Maisa but could not attend because he received a call from Jamal asking him to take a ladder to the job site. Ramzi told Maisa that he could not attend the parade because he had to do a favour for a mate. Maisa could not remember what time that Ramzi left on the morning of 21 August 2019. Maisa's evidence was that Astute did not have any work booked for that day and Ramzi had the day off. Maisa's evidence was that he intended to quote a couple of jobs and go to the tip. 6. In cross-examination, Maisa gave evidence that Astute primarily does asbestos removal work and sometimes demolition by way of strip out work and removal of roof tiles. Astute only prepares Asbestos Removal Management Plans if it does asbestos removal work. It does not prepare them for other demolition work. Maisa did not know how often Astute does work other than asbestos removal work. Maisa did not have anything to do with the payment of workers. Ramzi was responsible for paying the workers and other paperwork relating to their engagement was managed by the accountant. 7. Maisa did not personally know Jamal but described him as a work colleague of Ramzi. She did not know whether they had worked together on sites previously or how often they did so. Maisa did not know any of the workers who worked with Ramzi on sites, and she had nothing to do with organising the workers to go to sites. Documentary evidence 1. Astute also tendered a bundle of documents relating to its safety system when undertaking asbestos removal work in residential premises. Those documents demonstrated the following: 1. a large proportion of Astute's work involved the removal of asbestos from residential premises; 2. when doing this work, Astute adopted a documentary process that was the same for each job; 3. when notified of a job, Astute submitted to SafeWork NSW a Notice of Intent to Remove Non-friable Asbestos for the address where the work was to take place. Work to remove the asbestos at a job site could not commence until SafeWork NSW accepted the notification for that address; 4. Astute prepared an Asbestos Removal Management Plan and a Record of Toolbox Talk for each job, which were printed and taken to site so that they could be signed by each of the workers engaged by Astute on the job; 5. The Asbestos Removal Management Plan itemised the steps to be taken by the workers to ensure that the asbestos could be removed safely. The Record of Toolbox Talk provided an opportunity to record any safety matters that were discussed relating to the particular site. Most of these documents were completed using a very similar formula of words for each job; 6. for each job, Astute issued pro forma advice to the neighbours of a job site advising them that asbestos removal work would take place on the day and providing them with Ramzi's contact details. 1. In his evidence, Ramzi asserted that because there were no relevant documents prepared for the Vineyard site, it was not Astute's job and Astute was not engaged at the site. Whilst I accept that there were none of these types of documents prepared for the Vineyard site, that of itself does not establish that Astute was not engaged by Greater Civil at the site in the manner alleged by the prosecution. Ramzi in his evidence accepted that from time to time Astute performed strip-out work that did not involve the removal of asbestos and for which it would not have prepared these types of documents. Further, the Demolition Work Plan recorded that there was no asbestos to be removed at the site and it was therefore unlikely that Astute or Greater Civil would have prepared this type of documentation for the job. Findings on Credit 1. I have taken into account that Bishnu, Raju, Jamal and Ramzi were accepted by Astute to be unfavourable witnesses pursuant to s 38 Evidence Act 1995 and were cross-examined by the prosecutor on relevant issues. I have made findings as the prior inconsistent statements alleged to have been made by each witness and taken into account the fact that they were unfavourable to the prosecution in assessing their evidence. 2. Taking into account all of the evidence, I make the following findings as to the credit of each of the witnesses. 3. Kanna's evidence must be approached with some caution because I am satisfied that some aspects of his evidence were not true and that, at times, he gave evidence with the intention to inculpate Ramzi and/or Astute. In particular, his evidence that he was paid in cash for the work on 20-21 August 2019 through the involvement of Prasanth was not supported by Prasanth. His evidence that a history was given for him at the hospital that he was injured in a bike accident was not corroborated by any record of that history in the hospital's clinical notes. Similarly, his evidence that the others removed his work shirt and boots before taking him into the hospital, to give support to the bike accident history, was not corroborated by any of other workers. I do not accept that he was told that Yeyha and Ramzi were cousins, and he exaggerated his evidence by saying that he was lifted 7m in the air when he was in the bucket. The work was being done on a double storey building and I prefer the evidence of the other workers that the bucket was lifted about 3-4m in the air. I observed Kanna's demeanour supported my findings on the evidence that he had a grievance to pursue against Ramzi, despite his evidence to the contrary. 4. I have reservations about Bishnu's evidence. In particular, I do not accept his denials that he worked as a supervisor for Astute and that he worked in the bucket on the day of the incident before leaving the site. The objective evidence on the first issue was that he gave instructions to workers on sites when Ramzi was not present, he was paid slightly more than the other workers on a daily basis, he was described in some of the contemporaneous records of Astute as a supervisor and he was the longest serving worker for Astute. In addition, Ramzi gave evidence that he was employed as a supervisor and that he had been given an Astute work shirt, when the other workers had not. As to the second issue, his evidence was inconsistent with the answers he gave to Inspector Holder in his first interview with him, and the evidence of Kanna and Prasanth. I found his evidence that he did not understand the question that was being asked of him by Inspector Holder in the first interview to be unconvincing, notwithstanding that he did not have the assistance of an interpreter in the first interview. I accept that he had greater difficulty with English than Raju did, but I am satisfied that, by telling Inspector Holder that he felt unsafe by reference to being lifted in the bucket, he was working in the bucket prior to leaving the site as alleged by the prosecution. I observed his demeanour to change when he gave evidence on this topic. His answers seemed rehearsed, as if he was prepared to deal with what he anticipated to be a problem. It is not clear to me why Bishnu gave false evidence on this point and it causes me some concern. Apart from his denial of working in the bucket prior to the incident, Bishnu's evidence was generally supportive of the prosecution case. He believed that he was working for Astute and that he would be paid by Ramzi. He spoke to Ramzi about the safety issue raised by him and sought permission to leave the site early, because he believed that he was working for Astute on 21 August 2019. 5. Prasanth impressed me as a witness who was trying to do his best to tell the truth, notwithstanding that his recollection was faulty in a few respects. First, Prasanth's evidence was that he only worked at the Vineyard site for one day being the day of the incident on 21 August 2019 was contrary to the objective evidence. The induction records demonstrated that he was inducted onto the site by Eric on 20 August 2019 and I am satisfied that he worked at the site on both 20 August 2019 and 21 August 2019. Prasanth's evidence was largely supportive of the prosecution case. Second, Prasanth's evidence that Nithy was present was not supported by the other witnesses and I find that Nithy was not present, contrary to Prasanth's evidence. Third, I am not satisfied that Prasanth's evidence about Bishnu and Kanna working in the bucket for three to four hours was a reliable time estimate because he was the only witness to give that evidence and it could be an overestimation. 6. Raju also denied that Bishnu had been in the bucket on the day of the incident and, like Bishnu, also asserted that he had misunderstood Inspector Holder's questions on this topic during his interview because he did not have the assistance of an interpreter. I am not satisfied that Raju's evidence was truthful on this issue for a number of reasons. First, Raju told Inspector Holder in the interview that he was able to read and write English. Second, Raju and Bishnu were friends and their evidence on this topic was almost identical. I got the impression that they had discussed what their evidence would be, and Raju appeared ready to explain away his answers to Inspector Holder. Third, Raju's answers to Inspector Holder were clear to the effect that Bishnu was lifted in the excavator bucket first before Kanna and Prasanth got into the bucket. His answers were not lead by the questions and Raju expressed his answers with some clarity. Fourth, Raju's explanation that he was confused because he did not understand the questions he was being asked in the interview with Inspector Holder does not sit with a fair reading of the interview. I prefer the evidence of Prasanth and Kanna on this issue. Raju's evidence was otherwise generally supportive of the prosecution case. He understood that he was employed by Astute on 21 August 2019 and he gave evidence that Ramzi was there for most of the day, but he did come and go. Ramzi gave directions to the workers on the day and assisted with the work at times. I also note to the contrary that there were times when Raju was working in areas where he could not see the other workers and it was possible that Ramzi was not present for some or all of those times. 7. Yeyha's evidence was for the most part supportive of Astute's case, but not in every respect. Yeyha was the only worker to give evidence that it was Jamal that verbally asked Kanna and Prasanth to get into the bucket. Jamal's evidence was that he motioned Kanna and Prasanth to get into the bucket but did not ask them to do so. I note that the evidence of both Kanna and Prasanth was that Ramzi asked them to get into the bucket. Importantly, Yeyha gave evidence that workers were lifted in the bucket throughout the day for the purpose of dismantling the steel structure. This was contrary to the evidence of Jamal and Ramzi that workers were only lifted in the bucket at the end of the day for the limited purpose of making the site safe. My impression was that Yeyha's evidence was deliberately vague at times, particularly when it suited him. I do not accept Yeyha's evidence that he was asked by Jamal to call Ramzi to ask for the ladder. Jamal spoke to Ramzi regularly about work and it was not necessary for Yeyha to be involved. Yeyha's evidence about not having credit on his mobile phone was extraneous and I did not believe it. I observed Yeyha's demeanour during his evidence and my impression was that he was intended to give a version of events that would assist Ramzi. 8. Eric's evidence to the effect that he did not see workers being lifted in the bucket at the site on the day of the incident is inconsistent with the evidence of Kanna, Prasanth and Yeyha that the bucket was used to lift workers at different times throughout the course of the day. Even Jamal accepted that it was possible that he may have lifted workers in the bucket on the day before the incident occurred. Eric was not seriously challenged in cross-examination as to his evidence because Astute wanted to rely on the evidence he had given in the Apex sentence proceedings. I do not accept Eric's observations on the day of the incident as reliable and thereby precluding the use of the bucket to lift workers before the end of the day. 9. Jamal presented very poorly as a witness. His version of events was internally inconsistent and also inconsistent with the answers he gave to Inspector Holder in his interview. His evidence that he always paid labourers in cash defied logic, particularly for the work at the site, where Greater Civil had a contract with Apex that was recorded in writing and for which it was highly unlikely that Greater Civil would be paid in cash. Jamal tried to minimise his involvement in requiring workers to work in the bucket on the day of the incident by giving evidence that he only did so on one occasion at the end of the day to make the site safe at the request of one of his workers. I prefer the evidence of Kanna, Prasanth and Yeyha that workers, including Bishnu, had worked at height in the bucket at various times throughout the day. I do not accept that Jamal motioned to Kanna and Prasanth to enter the bucket immediately before the incident. I do not accept a number of things that Jamal told Inspector Holder in his interview with him. For example, I do not accept that it was Ramzi who tried to cover the incident up. Ramzi eventually reported the incident to SafeWork. Also, Jamal could not remember who asked the workers to get into the bucket during his interview but accepted that he did so in his evidence. I do not accept Jamal's evidence unless it was corroborated by other evidence, or it was given against his or Greater Civil's interest. 10. Ramzi had an interest in giving the evidence that he did and I have approached his evidence with some caution. There were times when Ramzi's evidence where I formed the impression that he tailored his evidence to best suit his case. For example, I do not accept Ramzi's evidence that Jamal motioned with his hand to Kanna and Prasanth to get into the bucket. I formed the view that he heard Jamal give that evidence and that he decided to adopt it in his evidence because he thought it would suit Astute's case to do so. At times, Ramzi was dogmatic in his evidence to the extent of being an advocate for his own cause. I do not accept parts of Ramzi's evidence particularly where it is in conflict with evidence that I do accept, but I also cannot reject it in its entirety. 11. Maisa was a witness trying her best to tell the truth. Some of her answers reflected what she had been told by Ramzi, rather than evidence of what she had seen or heard. Her evidence was limited to Astute's usual practice of undertaking asbestos removal work. It was common ground that Astute were not engaged to undertake asbestos removal work at the site and accordingly Maisa's evidence was of limited value. The Elements of the Offences 1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt. 2. Section 31 of the Act provides: (1) A person commits a Category 1 offence if-- (a) the person has a health and safety duty, and (b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and (c) the person-- (i) engages in the conduct with gross negligence, or (ii) is reckless as to the risk to an individual of death or serious injury or illness. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 1. The elements of the s 31 offence involving a breach of the s 19(1) duty are: * Element A – The defendant was conducting a business or undertaking. * Element B - The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; (i) workers engaged by it or workers whose activities are influenced or directed by the defendant; (ii) while the workers were at work in the business or undertaking; * Element C - The defendant failed to comply with its health and safety duty; * Element D - The failure exposed an individual to a risk of death or serious injury; * Element E – The defendant engaged in conduct, without reasonable excuse, and was reckless as to the risk to an individual of death or serious injury or illness. 1. Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. 1. The elements of the s 32 offence involving a breach of the s 19(1) duty are: * Element 1 The defendant was conducting a business or undertaking; * Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of; (i) workers engaged by it or workers whose activities are influenced or directed by the defendant; (ii) while the workers were at work in the business or undertaking; * Element 3 The defendant failed to comply with its health and safety duty; and * Element 4 The failure exposed an individual to a risk of death or serious injury. 1. Section 38 of the Act relevantly provides: (1) A person who conducts a business or undertaking must ensure that the regulator is notified immediately after becoming aware that a notifiable incident arising out of the conduct of the business or undertaking has occurred. (2) The notice must be given in accordance with this section and by the fastest possible means. (3) The notice must be given-- (a) by telephone, or (b) in writing. 1. The elements of the s 38 offence are: * Element (i) – The defendant was conducting a business or undertaking; * Element (ii) The defendant failed to notify the regulator immediately after becoming aware that a notifiable incident. * Element (iii) The notifiable incident arose out of the conduct of the defendant's business or undertaking. The Relevant Law 1. The offence is one of strict liability: s 12A of the Act. 2. A person can conduct a business or undertaking alone or with others and it does not need to be for profit or gain: s 5 of the Act. 3. A person is a "worker" if the person carries out work in any capacity for a person conducting a business or undertaking (PCBU), including work as an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: s 7 of the Act. 4. A duty provided for by the Act is not transferable: s 14 of the Act. 5. Section 16 of the Act provides: (1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person-- (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 1. The content of the duty is set out in s 19 of the Act, which relevantly provides: (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. … (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable: (a) the provision and maintenance of a work environment without risks to health and safety, and (b) the provision of safe plant and structures, and (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. 1. The inclusive list of specific obligations set out in s 19(3) of the Act have each been identified at common law. 2. The requirement to "ensure" means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470. 3. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of s 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the ss 31 and 32 offences is the risk of death or serious injury. 4. The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67]. 5. An incident causing injury may be evidence of the presence of a risk and may be relevant to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6]. 6. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: s 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it. 7. "Reasonably practicable" is defined in s 18 of the Act. The court must take into account and weigh up all relevant matters including: 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows or ought reasonably to know about; 1. the risk, and 2. ways of eliminating or minimising the risk, and 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk. 1. The state of knowledge applied to the definition of "practicable" is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33]. 2. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] (Gleeson CJ, Gummow and Hayne JJ). 3. The phrase "exposed to risks" contained in s 8(2) Occupational Health and Safety Act 2000 has been interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess. 4. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267 at [68]. 5. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] (Gaudron J). 6. The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder to achieve the provision and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] (French CJ, Gummow, Hayne and Crennan JJ). 7. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453. 8. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 (Hill J) and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32]. 9. A duty holder must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320 (Dixon CJ). If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable. 10. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practicable to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129]. 11. One of the matters PCBUs must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51]. 12. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice was observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E. 13. The question of what is reasonably practicable is also a question of fact, determined by the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f. 14. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control the risk and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates. Clause 3 of Schedule 4 of the Act provides that an industry code of practice approved and enforced under Part 4 of the Occupational Health and Safety Act 2000 immediately before the repeal of that Act is taken to be an approved code of practice under Part 14 of the Act. 15. Clause 78 Work Health and Safety Regulation 2013 (the Regulation) requires a PCBU at a workplace to manage risks to health and safety associated with the fall of a person from one level to another that is reasonably likely to cause injury. The PCBU must ensure, so far as is reasonably practicable, that the work is carried out on the ground or on a solid construction. Solid construction means a surface that is structurally capable of supporting all persons and things that may be located on it. 16. If the risk of a fall cannot be eliminated, the PCBU must minimise the risk of a fall by providing adequate protection in accordance with clause 79 of the Regulation. Clause 79 requires the provision of a fall prevention device, or if that is not reasonably practicable, a work positioning system, or if neither a fall prevention device nor a work positioning system are reasonably practicable, a fall arrest system. Causation 1. The relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127]. 2. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378. 3. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130]. Failure to notify 1. A "notifiable incident" is defined in s 35 of the Act to mean: (a) the death of a person, or (b) a serious injury or illness of a person, or (c) a dangerous incident. 1. Section 36 of the Act defines "serious injury" to include an injury requiring the person to have immediate treatment as an in-patient in a hospital. Consideration Issue 1 – Did Astute owe the workers a health and safety duty pursuant to s 19(1) of the Act? 1. The s 19(1) duty is owed to workers: 1. who are engaged or caused to be engaged by the defendant; or 2. whose activities are influenced or directed by the defendant; 3. while the workers are at work in the defendant's business or undertaking. 1. In the present case, the workers were contractors to Astute from time to time. They were free to contract with others, and did so, when Astute did not have work for them. While Astute was central to their engagement at the site, it was not necessarily an engagement by Astute or in the course of its business or undertaking. 2. I do not accept Ramzi's evidence that he made it clear to the workers that they were to be engaged by Greater Civil or Jamal on the site. So much is apparent from the fact that they each nominated Astute as their employer in their induction records. I accept the evidence of Bishnu, Prasanth and Kanna that they expected to be paid by Astute or Ramzi for their work at the site. 3. The workers were regularly engaged by Astute to undertake its work at various sites. They were familiar with being given instructions by Ramzi on those occasions. I accept Bishnu's evidence that he sought Ramzi's advice and intervention with Jamal and Ramzi's permission to leave the site early because Bishnu believed that he was working for Ramzi at the site. I also accept the evidence of Raju and Prasanth that Ramzi gave the workers instructions at various points throughout 21 August 2019. On this evidence, I am satisfied that the activities of the workers were influenced or directed by Astute. But again, this finding does not determine if the workers were at work in Astute's business or undertaking. 4. The prosecution case is set out at [4] above and I will deal with the alternative cases in turn. Before doing so, I note that the prosecution case in large part depends on the Court's acceptance or rejection of the evidence of Jamal and Ramzi, because they were the only two witnesses that were party to the relevant conversations that took place prior to the workers attending the site. The subcontract case 1. Jamal told Inspector Holder in his interview that Greater Civil subcontracted some of the strip-out work at the site to Astute and that in the conversation that took place between himself and Ramzi, they agreed on a price to be paid by Greater Civil for the work to be performed by Astute. 2. In Court, Jamal resiled from this evidence. He stated that he contacted Ramzi to provide labourers for him to supervise at the site and they did not discuss price because there was a going rate of $200 per worker per day. Jamal intended to give Ramzi cash to pay the workers this amount and that he would not have included any amount for Ramzi for working at the site or as a fee for providing his workers. 3. I found Jamal's explanation for the change in his evidence to be thoroughly unconvincing, but that it not to say that I accept that what he told Inspector Holder was the truth either. At the time of Jamal's interview with Inspector Holder he had an interest in implicating Ramzi in wrongdoing at the site. It appeared to me from the content of Jamal's interview with Inspector Holder that Jamal believed that, if the workers were engaged by Astute, it would absolve Greater Civil of liability for the incident. Jamal gave very little by way of detail to Inspector Holder about the alleged subcontract, for instance, what the contract price was, how it was to be calculated or the details of the work that was to be performed by Astute. 4. For the reasons already given, I reject Kanna's evidence that he was paid by Astute in cash for his work at the site. This leaves no other evidence that the workers were paid by either Astute or Greater Civil. That is not surprising in circumstances where in the aftermath of the incident, Ramzi and Jamal disagreed on who had engaged the workers and whose insurer was responsible for making workers compensation payments to Kanna. In the end, I cannot make a finding as to who was responsible for paying the workers for their work at the site. 5. If what Jamal told Inspector Holder was true, that Greater Civil had contracted some of the work to Astute, there was no evidence that Greater Civil paid Astute for the work performed under that subcontract. The purpose of making this point is to note that there was no contemporaneous evidence to corroborate the truth of what Jamal told Inspector Holder and not to speculate what the evidence might have been in circumstances where there was no evidence on the point. 6. I pause to note that Jamal's evidence that the workers were to be paid $200 each per day is consistent with the evidence that the workers were usually paid $220 per day by Ramzi. Most of the workers had provided Ramzi with an ABN and the amount he paid them included an amount of $20 in GST. 7. I find that Ramzi was not present at the site on 20 August 2019. I am unsure as to when Ramzi was present at the site on 21 August 2019. The evidence on this point was varied. I am satisfied that he was there in the morning for a period of time and at the end of the day when the incident occurred. Whilst I have some doubts about Ramzi's evidence about going to the tip at Eastern creek, I cannot reject it. Ramzi's evidence about the co-ownership of the truck that he said he was driving was to some extent non-sensical but because it was an arrangement with his brother, it may have been true. There is no evidence that Ramzi was inducted onto the site, which was a requirement of the WHSMP, particularly if he was going to work at the site, such as by supervising the work. 8. It was common ground that Jamal gave most of the instructions at the site as to the work to be performed. I accept that Ramzi was regarded as in control of the work by the workers who had worked for Astute in the past because they subjectively believed that they were working for Astute at the site. 9. I do not accept the evidence of Ramzi and Jamal that the bucket was only used to lift the workers once at the end of the day to remove a beam to make the site safe. I accept the evidence of Kanna, Prasanth and Yeyha that the bucket was being used to lift Bishnu from at least before lunchtime on 21 August 2019. 10. I am satisfied that Ramzi did give directions to the workers at the site on how the work was to be performed when he was present on 21 August 2019. I accept Prasanth's evidence that he was directed by Ramzi to get into the bucket. I also accept Kanna's evidence that he was directed by Ramzi to get into the bucket. I reject the evidence of Jamal, Ramzi and Yeyha on this point. 11. I do not accept the evidence of Jamal that the bucket was used to lift the workers once at the end of the day to make the site safe. I prefer the evidence of Kanna, Prasanth and Yeyha that the bucket was used to lift workers throughout the day, commencing with Bishnu and followed by Kanna and Prasanth after Bishnu left the site. I am unsure as to whether Ramzi was aware that the bucket was being used to lift workers at the site. It is likely that he was told by Bishnu that this was the intended work method, but I cannot find that it had already been done at the time when Ramzi first came to the site. 12. Ramzi's evidence was that he had been asked by Jamal to provide labourers to Jamal to undertake work at the site and that he did so by referring the workers, who were independent contractors, to Jamal to be directed, supervised and paid by Greater Civil. Ramzi referred the workers without any expectation of payment for doing so and was not present at the site to direct or supervise the work because it was not Astute's job. The subjective beliefs of the workers about who they thought they were working for on 21 August 2019 is some evidence in conflict with Ramzi's evidence, but insufficient to reject it in totality for two reasons. First, assuming that the incident had not occurred, and the workers had been paid by Jamal or Greater Civil, the subjective beliefs of the workers would have been rendered nugatory. Second, the subjective beliefs of the workers constituted post-contractual conduct, which can be considered to establish the existence of a contract but not its terms. 13. Having considered all of the evidence, I cannot be satisfied beyond reasonable doubt that Greater Civil had subcontracted part of the work to Astute. The labour hire case 1. The labour hire case was put on the basis that Astute contracted to provide its workers to Greater Civil for reward, in circumstances where Greater Civil would direct and supervise them in performing the work at the site. 2. I accept that the work was directed and supervised by Jamal on behalf of Greater Civil. 3. There was no evidence of any terms of the alleged labour hire contract. Jamal and Ramzi gave evidence that no money was going to change hands for the provision of the workers to work at the site. There was no evidence of any relevant payment for the work at the site or for similar work on any prior occasion. 4. Jamal's evidence was that on occasions that Jamal and Ramzi would help each other with their respective jobs. Ramzi's evidence was that he came to the site on 21 August 2019 to lend Jamal a ladder following his request and that he returned to the site at the end of the day to retrieve it. 5. I am not satisfied beyond reasonable doubt on the evidence that the prosecution has established that Astute hired its workers to Greater Civil for reward. Conclusion on Issue 1 1. Taking into account all of the evidence and my findings if fact, it remains reasonably possible that Ramzi, without reward, referred the workers to work for Greater Civil at the site to be directed, supervised and paid by Greater Civil. I am not satisfied beyond reasonable doubt that Bishnu, Kanna or Prasanth were at work in the business or undertaking of Astute on 20-21 August 2019. 2. I am not satisfied beyond reasonable doubt that Astute owed the workers a health and safety duty under s 19(1) of the Act. Issue 2 – Was the defendant reckless as to the risk of death or serious injury to an individual? 1. A PCBU is reckless for the purposes of the s 31 offence if it foresees a possibility that its conduct could lead to an individual being exposed to a risk of death or serious injury. The degree of the possibility required depends on the social utility of the conduct: Aubrey v R (2017) 260 CLR 305 at [49]. 2. Section 244 of the Act provides: (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact. 1. In the present case, it was open for the prosecution to prove that Ramzi had the had the relevant state of mind to establish recklessness. 2. Ramzi's evidence was that before lunchtime on 21 August 2019, Bishnu had raised with him that Jamal wanted to use the bucket to lift workers up to do the work. Ramzi told Bishnu not to do anything that was unsafe and expressed the view that a scissor lift was needed to undertake the work. I am satisfied on the evidence that Bishnu worked from the bucket of the excavator on the day of the incident and that Kanna and Prasanth both worked from the bucket after Bishnu left the site. There is insufficient evidence to decide if Bishnu had already been working from the bucket at the time of his conversation with Ramzi, after he first arrived at the site. Whilst it is possible that he did, it is equally possible that he did not. I cannot find that Ramzi knew at that time that the bucket was being used to lift Bishnu to work at height. The inability to decide this point is a consequence of Bishnu giving false evidence about working from the bucket. 3. Ramzi also gave evidence that at the end of the day when he saw that Jamal was going to use the bucket to lift Kanna and Prasanth up to do the work, he sought to intervene by telling Jamal what he was intending to do was unsafe. After being rebuked by Jamal, Ramzi did not take any further steps to prevent the use of the excavator to lift the workers, because he was not involved in the work. 4. Taking into account all of the evidence, I am satisfied beyond reasonable doubt that Ramzi knew that it was unsafe to lift workers in the bucket of the excavator, because he foresaw the risk that a worker might fall out of the bucket and suffer serious injury or be killed. I am also satisfied beyond reasonable doubt that Ramzi did not take any further step to prevent the workers from being lifted in the excavator bucket and that constituted a continuation of the conduct of Astute with knowledge of the possibility that the conduct would expose an individual to a risk of death or serious injury. The Section 31 and Section 32 Offences 1. It was common ground that Astute was a person conducting a business or undertaking. 2. It was also common ground that Astute did not take the steps particularised in [15] and [16] of the respective Summonses (the particularised steps). 3. It was not disputed that those steps were reasonably practicable steps. Having conducted an independent review of the evidence, I am satisfied beyond reasonable doubt that the particularised steps were reasonably practicable. 4. I am satisfied beyond reasonable doubt that if Astute had owed a duty pursuant to s 19(1) of the Act, that it would have breached that duty by failing to take the particularised steps. 5. Causation was also not put in dispute. 6. Having conducted an independent review of the evidence, I am satisfied beyond reasonable doubt that Astute's failure to take the particularised steps was a significant or substantial cause of the workers being exposed to a risk of serious injury or death. The Section 38 Offence 1. It was common ground that Ramzi was present when the incident occurred. Kanna was admitted to hospital for in-patient treatment and I am satisfied beyond reasonable doubt that the incident was a notifiable incident. Ramzi did not report the incident to SafeWork until 4 September 2019. I am satisfied beyond reasonable doubt that the report was not made immediately. 2. The only question to be determined is as to whether the notifiable incident arose in the course of the defendant's business or undertaking. 3. For the reasons given in deciding issue 1, I am not satisfied that the notifiable incident arose in the course of Astute's business or undertaking. Conclusion and Orders 1. The prosecution has not proven all of the elements of the offences beyond reasonable doubt. 2. I will hear from the parties before making final orders. ********** Endnote 1. For ease of reference, I will refer to each of the relevant people by their first names or nicknames. I mean no disrespect by doing so. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 May 2023