Industrial Court of New South Wales CITATION: Inspector Rowe v Stephensons Cranes Pty Ltd and Soltau [2010] NSWIRComm 68 Inspector Andrew Rowe (Prosecutor) PARTIES: Stephensons Cranes Pty Ltd (Defendant in IRC 218 of 2009) Richard Gordan Soltau (Defendant in IRC 220 of 2009) FILE NUMBER(S): IRC 218 and 220 of 2009 CORAM: Marks J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(2) of the Occupational Health and Safety Act 2000 by the corporate defendant - personal defendant charged with breach of s 20(1) - pleas of guilty - conflicting versions regarding cause of incident - failure to prove cause of incident to requisite standard - elements of the offences - particulars of the charges - court unable to embark on sentencing because of doubt whether particulars of each offence have been proven - further assistance from parties required - proceedings stood over for further submissions LEGISLATION CITED: Occupational Health and Safety Act 2000 - s 8(2), s 20(1) Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163 Kirk v Industrial Court (NSW) [2010] HCA 1; (2009) 239 CLR 531 R v De Simoni (1981) 147 CLR 383 CASES CITED: R v Lewis [1994] 1 QdR 613 R v Olbrich (1999) HCA 54; 199 CLR 270 R v Palu [2002] NSWCCA 381 Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153 HEARING DATES: 19 and 20 April 2010 DATE OF JUDGMENT: 28 May 2010 Mr D Chin of counsel Solicitors Workcover Authority of New South Wales LEGAL REPRESENTATIVES: Mr D Murray, solicitor Solicitors AiGroup Legal JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: Marks J Friday 28 May 2010 Matter No IRC 218 & 220 of 2009 Inspector Andrew Rowe v Stephensons Cranes Pty Ltd and Richard Gordon Soltau Prosecution under s 8(2) and s 20(1) of the Occupational Health and Safety Act 2000 JUDGMENT RE PENALTY [2010] NSWIRComm 68 1 The Court has before it two prosecutions both brought by the prosecutor, Inspector Andrew Rowe of the WorkCover Authority of New South Wales. The first defendant is Stephensons Cranes Pty Ltd, which is charged with a breach of s 8(2) of the Occupational Health and Safety Act 2000 ("the Act"). The second prosecution is brought against the defendant Richard Gordon Soltau who is charged with a breach of s 20(1) of the Act. Both charges were heard concurrently with evidence in the one being evidence in the other. Both charges arise out of the same incident, which occurred on 20 February 2007 at a construction site located at Lot 159 Howden Street, Holsworthy. On that day and at that place Jamie Kirchen, an apprentice carpenter, sustained serious injuries when he fell from the first floor of a construction site on which he was then working. 2 Both proceedings are constituted by amended applications for order filed in Court on 14 April 2010. 3 The charge brought against the defendant Stephensons Cranes Pty Ltd is that being an employer, on the date and at the place previously referred to, it: FAILED TO ensure that people (other than employees of the defendant), and in particular Jamie Kirchen were not exposed to risks to their health or safety arising from the conduct of its undertaking at its place of work contrary to section 8(2) of the Act. The particulars of the risk are: a) The risk was the risk of persons, in particular Jamie Kirchen, being injured from falling from a height and from a falling load, in circumstances where a slung load of flooring was lowered by mobile crane onto a second story deck area consisting of unsecured timber joists, and where that load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse. The particulars of the charge are: b) The defendant failed to ensure there was a safe system of work for mobile crane operation activities at the site, in particular for slinging, landing and unhooking of loads. The defendant should have ensured but did not ensure that: i. prior to lifting and landing any load with the use of a crane, a test lift of the load was conducted in which a dogman confirmed that the landing area that was flat, smooth, continuous and otherwise secure beneath the load; and ii. prior to lifting and landing any load with the use of a crane, a dogman confirmed that the landing area was flat, smooth, continuous and otherwise secure beneath the load. c) The defendant failed to ensure that loads, in particular pallets of floor sheeting, were not placed on floor joists on the first floor level of the building under construction at the site until joists were installed across the whole floor area and were adequately secured. The defendant should have prohibited or prevented, but did not prohibit or prevent, any load being lifted by a crane unless and until the floor joists constituting the landing area had been installed across the whole floor area and were secured by adequate blocking and temporary battens as was required by the manufacturer's installation instructions. d) The defendant failed to ensure that persons working on or egressing or accessing floor joists at the premises in relation to crane operation activities were not exposed to the risk of falling through or from the floor joists. The defendant should have prohibited or prevented, but did not prohibit or prevent, any person from working at a height while assisting in a load being lifted by a crane unless that person was protected by fall prevention measures such as perimeter scaffolding, temporary hand rails and/or a fall arrest harness. e) The defendant failed to ensure persons did not undertake work at the site for which they were not qualified including: i. directing the operation of cranes at the site; ii undertaking dogman duties at the site such as slinging loads at the site; iii. unhooking loads from cranes at the site. The defendant should have but did not ensure that a person with a certificate of competency in "dogging" work ( dogging certificate ), or a person who was trained and employed as a dogman, was permitted to direct the movement of a load by the operation of a crane and unhook a load from a crane. f) The defendant failed to ensure persons were adequately supervised at the site in relation to work involving crane operation activities. The defendant should have provided but did not provide direct supervision of all aspects of crane operations continuously through the entire process of each lift. g) The defendant failed to provide any or any adequate information, instruction or training to persons at the site with respect to crane operation activities. The defendant should have but did not ensure that all persons assisting in the lifting of a load with the use of a crane were made aware of the contents of a written safe work method statement for operating cranes with a load; that all such persons were informed, trained and/or instructed in the method of directing the movement of a crane with a load; and that all such persons were informed, trained and/or instructed in the method of unhooking loads from a crane. h) The defendant failed to undertake an adequate risk assessment in relation to crane activities at the site. The defendant should have but did not ensure that a site-specific and documented risk assessment was performed for work involving the movement of loads at a height by operation of a crane; and that all persons involved in such work signed, provided input into and/or participated in such a risk assessment. As a result of the defendant's failures persons, and in particular Jamie Kirchen were placed at risk of injury from falling from a height, and from a load falling from a crane. 4 The charge brought against the defendant Richard Gordon Soltau was based on a breach of s 20(1) of the Act which is in the following terms: 20 Duties of employees (1) An employee must, while at work, take reasonable care for the health and safety of people who are at the employee's place of work and who may be affected by the employee's acts or omissions at work. 5 The charge is that, in the course of his employment with the defendant Stephensons Cranes Pty Ltd, Mr Soltau, on the date and at the construction site previously referred to: FAILED TO take reasonable care for the health and safety of persons, and in particular Jamie Kirchen, Nathan McNeill and Rodney Harvey, who were at his place of work and who may be affected by his acts or omissions at work contrary to s20(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: The particulars of the risk are: a) The risk was the risk of persons, in particular Jamie Kirchen, being injured from falling from a height and from a falling load, in circumstances where a slung load of flooring was lowered by mobile crane onto a second story deck area consisting of unsecured timber joists, and where that load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse. The particulars of the charge are: b) At all material times the defendant was employed by Stephensons Cranes Pty Ltd (ACN 089 953 622) ("Stephensons") as a crane operator and was undertaking work in the course of his employment at the site. c) At all material times it was the defendant's responsibility to oversee crane operation activities at the site. d) At all material times there were people present at the defendant's place of work, namely the site, who may have been affected by the defendant's acts or omissions and such people included Jamie Kirchen, Nathan McNeill and Rodney Harvey. e) The defendant failed to ensure there was a safe system of work for mobile crane operation activities at the site, in particular for slinging, hooking, landing and unhooking of loads. The defendant should have ensured but did not ensure that: i. prior to lifting and landing any load with the use of a crane, a test lift of the load was conducted in which a dogman confirmed that the landing area that was flat, smooth, continuous and otherwise secure beneath the load; and ii. prior to lifting and landing any load with the use of a crane, a dogman confirmed that the landing area was flat, smooth, continuous and otherwise secure beneath the load. f) The defendant failed to ensure that persons working on or egressing or accessing floor joists at the premises in relation to crane operation activities were not exposed to the risk of falling through or from the floor joists. The defendant should have prohibited or prevented, but did not prohibit or prevent, any person from working at a height while assisting in a load being lifted by a crane unless that person was protected by fall prevention measures such as perimeter scaffolding, temporary hand rails and/or a fall arrest harness. g) The defendant failed to ensure that loads, in particular pallets of floor sheeting, were not placed on floor joists on the first floor level of the building under construction at the site until joists were installed across the whole floor area and were adequately secured. The defendant should have prohibited or prevented, but did not prohibit or prevent, any load being lifted by a crane unless and until the floor joists constituting the landing area had been installed across the whole floor area and were secured by adequate blocking and temporary battens as was required by the manufacturer's installation instructions. h) The defendant failed to ensure persons did not undertake work at the site for which they were not qualified including: i. directing the operation of cranes at the site; ii. undertaking dogman duties at the site such as slinging loads at the site; iii. unhooking loads from cranes at the site. The defendant should have but did not ensure that a person with a certificate of competency in "dogging" work (dogging certificate), or a person who was trained and employed as a dogman, was permitted to direct the movement of a load by the operation of a crane and unhook a load from a crane. i) The defendant failed to ensure persons were adequately supervised at the site in relation to work involving crane operation activities. The defendant should have provided but did not provide direct supervision of all aspects of crane operations continuously through the entire process of each lift. j) The defendant failed to provide any or any adequate information, instruction or training to persons at the site with respect to crane operation activities. The defendant should have but did not ensure that all persons assisting in the lifting of a load with the use of a crane were made aware of the contents of a written safe work method statement for operating cranes with a load; that all such persons were informed, trained and/or instructed in the method of directing the movement of a crane with a load; and that all such persons were informed, trained and/or instructed in the method of unhooking loads from a crane. k) The defendant failed to undertake an adequate risk assessment in relation to crane operation activities at the site. The defendant should have but did not ensure that a site-specific and documented risk assessment was performed for work involving the movement of loads at a height by operation of a crane; and that all persons involved in such work signed, provided input into and/or participated in such a risk assessment. As a result of the defendant's failures persons, and in particular Jamie Kirchen were placed at risk of injury from falling from a height, and from a load falling from a crane. 6 Each of the defendants pleaded guilty to each of the charges. This judgment, accordingly, deals with the question of penalty only. However, the prosecutor asserted, and each of the defendants denied, that the incident occurred in a particular manner. Accordingly, there is a degree of controversy concerning the factual background against which the prosecutions have been instituted that needs to be determined. 7 A great deal of documentary evidence was tendered in the proceedings including a prosecution tender bundle and affidavits of Mr Soltau and another person concerned in the incident, Nathan Andrew McNeill. The defendant Stephensons Cranes Pty Ltd also tendered into evidence an affidavit of Andrew Westwood, its OH& S manager. Finally, the defendants tendered an expert report of Jonathon O'Brien, a consulting engineer. It is convenient to set out the Statement of Facts, which was part of the prosecutor's tender bundle. However, as will be noted when perusing that document, there are a number of its contents that, as indicated, were disputed by the defendants. The document is in the following terms: 1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 (" the Act ") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2. At all material times, Stephensons Cranes Pty Ltd (ACN 089 953 622) (" Stephensons ") was a corporation whose registered office is situated at LCI Partners Pty Ltd, (deleted) in the State of New South Wales. Stephensons undertook the business of crane hire. Stephensons was registered as a company on 28 June 2000. 3. At all material times Richard Gordon Soltau of (address deleted) in the State of New South Wales (" Mr Soltau ") was an employee of Stephensons. 4. At all material times Stephensons was undertaking work at a construction site located at Lot 159 Howden Street, Holsworthy in the State of New South Wales (" the site "). BACKGROUND 5. On 20 February 2007, Jamie Kirchen (" Mr Kirchen "), a 19 year old fourth year apprentice carpenter employed by Mintark Pty Ltd (" Mintark ") suffered serious crush injuries to his lower torso and legs after he and a 1 tonne pack of timber floorboards fell approximately 2.5m off the first level of a residential dwelling being constructed at the site. 6. Mirvac Homes (NSW) Pty Limited (" Mirvac ") was the principal contractor at the site. Mirvac was erecting approximately 46 villas and townhouses around the site, one of which was being constructed on the site. 7. Mirvac had contracted with Mr Kirchen's employer, Mintark, to provide carpentry work with respect to the construction of the villas and townhouses. That carpentry work included the installation of floor joists and laying sheet flooring. There was no written contract between Mirvac and Mintark. 8. Mirvac had contracted with Stephensons to carry out crane work at the site on 20 February 2007. That work involved the use of a mobile crane owned by SP Gauci Holdings Pty Ltd to move packs of floor sheeting from the ground level onto erected first level floor joists at the site. Each pack contained 27 sheets of flooring with each floorboard measuring 4.0m x 1.2m x 0.2m. The weight of each pack was approximately 1 tonne. 9. There were three supervisors at the site employed by Mirvac, Jean-Michel Bijoux (" Mr Bijoux "), Alex Schvetz (" Mr Schvetz ") and Craig Young (" Mr Young "), although it would appear that Mr Schvetz had the direct responsibility of supervising the construction at the site. 10. On the day of the incident Nathan McNeill (" Mr McNeill "), an employee of Stephensons, was operating the crane. Mr McNeill was employed by Stephensons as a dogman but was operating the crane on 20 February 2007 as a trainee under the direct supervision of Mr Soltau. 11. Mr Soltau was employed by Stephensons as a crane operator but was acting as a dogman on the day of the incident. Nonetheless his duties and responsibilities as an employee of Stephensons on 20 February 2007 included the delivery and operation of the crane, as well as overseeing the crane's crew, including any person working as a dogman. Mr Soltau had the overall responsibility for supervising the hooking and unhooking of packs of floorboards onto and from the crane at the site. Mr Soltau was supervising the operation of the crane when Mr Kirchen fell from the first level of the dwelling under construction. INCIDENT 12. On the morning of 20 February 2007 Mr McNeill attended the site office and obtained from Mr Schvetz instructions as to the location where work was to be carried out that day. About half an hour later the crane was set up ready to lift packs at the site. 13. Mr McNeill slung the first load, and using the crane lifted it to the first level of the dwelling without incident. Rodney Harvey, (" Mr Harvey ") a director of Mintark and Mr Kirchen's immediate supervisor, unhooked that first load. The second load lifted that morning was slung by Mr Soltau and then lifted, also without incident. The fourth or fifth load lifted at the site that day, consisting of the pack of flooring that eventually fell, initially had slings placed around it by Mr Soltau. 14. After Mr Kirchen gave directions to the crane operator via Mr Soltau as to the position he wanted the load set down, the crane then lifted the pack. The load was set down but its initial position on the first level floor joists was unsatisfactory to Mr Kirchen who signalled to Mr McNeill to "hook up" (meaning "raise the crane hook") in order to lift the load again and to move the load a short distance to the right. This was done after which time the load was set down onto the erected first level floor joists. 15. [ DISPUTED ] Mr Kirchen then directed the crane operator to lower the load in order that Mr Kirchen could remove the slings from it. He removed the left sling from the load and went to remove the right sling but before he was able to move to the right hand side of the load, the load started to lift. The right hand side of the pack of floorboards was raised, placing pressure on the inner last floor joist, upon which Mr Kirchen was standing, which flipped over onto its side. 16. [ NOT ADMITTED ] Shortly afterwards, the second floor joist tilted over causing Mr Kirchen to fall through a floor joist, 2.5m to the cement floor below, landing on his back. 17. The pack of floorboards followed Mr Kirchen. 18. The pack subsequently crushed Mr Kirchen's lower torso and legs. Police and Ambulance officers attended the scene and Mr Kirchen was taken to Liverpool Hospital for treatment of his injuries. Mr Kirchen suffered serious injuries to his pelvis, abdomen, bowel and right leg. Mr Kirchen remains unfit to undertake his pre injury duties. DETAILS OF SYSTEMS OF WORK PRIOR TO THE INCIDENT 19. Stephensons had a written safe work method statement (" the Statement ") for the site that had been signed by both Mr McNeill and Mr Soltau. The Statement is annexed to this Statement of Facts. Step No.1 in the Statement, entitled "CRANE Pre-operation," required that all personnel were to be skilled and competent to carry out crane operation work allocated to them, and that all personnel were to be skilled and competent to carry out rigging and dogging work allocated to them. Step No. 11 in the Statement, entitled "Normal Crane Operation with LOAD", required a "Dogman to ensure Load is clear and confirm Minimum area flat smooth & continuous beneath Load". Step No. 12, entitled "Crane Crew working with Personnel accessing Crane Working Radius", required that a "Designated Dogman ONLY to DIRECT CRANE". At all material times Mr Kirchen did not have a certificate of competency in dogging or "dogging certificate". [ DISPUTED ] Mr Soltau did not follow the Statement, and allowed a person whom he knew to be without relevant qualifications (including a dogging certificate), namely Mr Kirchen, to direct the operation of the crane and the unhooking of the crane load . 20. According to Mr Soltau it was normal industry practice to allow unqualified persons to conduct such tasks under supervision, in order to increase the speed and efficiency of the work being performed. 21. Prior to the incident Mr Soltau's practice at the site was to attend the Mirvac office in order to have work allocated by a Mirvac supervisor. The Mirvac supervisor would direct Mr Soltau to the specific location at which work was to be performed and would also show Mr Soltau exactly what work needed to be done. Warning signs would be collected from the shed adjacent to the site office and would be set up prior to any work being undertaken. Before a load was lifted Mr Soltau obtained instructions from Mr Kirchen as to where he (Mr Kirchen) wanted the load placed. 22. The Statement for the site required that a test lift be conducted with a load attached to the crane. The dogman was to ensure the test load was clear and confirm there was a minimum flat, smooth and continuous area beneath the load. This procedure was not followed. 23. The Statement also prohibited the lifting of an unsecured load at any time. [ DISPUTED ] That procedure was not followed at the site on 20 February 2007. 24. [ DISPUTED ] Additionally, all persons assisting the crane crew were required to sign, or were otherwise required to provide input into, a Job Safety Analysis undertaken by Stephensons. No such analysis or input was undertaken or sought, and accordingly no such analysis was signed, or input given, by Mr Kirchen. 25. The Statement required at all times that only a designated dogman was to direct the crane. [ DISPUTED ] By allowing Mr Kirchen to direct the crane at the site, the defendants failed to follow that aspect of the Statement. 26. There was no fall prevention system in place, other than standing with either foot on adjoining joists at the site. In particular absent from the first level of the dwelling at the site was any perimeter scaffolding or temporary hand railing. Mr Kirchen was not provided with a fall arrest harness. 27. Stephensons failed to ensure there was adequate fall protection for Mr Kirchen in assisting in the lifting of loads to the first level of the dwelling at the site. 28. The system of work in place at the site at the time of the incident allowed loads of floor sheeting weighing approximately one tonne to be placed on floor joists where workers were standing, this floor has not been secured. The system of work also allowed loads to be placed on the floor joists prior to all the floor joists being in place. Approximately a third of the floor joists had been erected at the time the load was placed on the first floor joists. The joists upon which the load had been placed was installed by Mintark. They had not been properly secured, and were not installed in accordance with the supplier's installation guide. Neither Stephensons nor Mr Soltau were made aware of this. RISK ASSESSMENT 29. No adequate risk assessment was undertaken by Stephensons prior to loads being lifted at the site. No adequate job safety analysis was undertaken by Stephensons at the site prior to lifting loads on 20 February 2007. Stephensons did not ensure that there was a flat, smooth and continuous area on the first level of the residential dwelling at the site upon which packs of floorboards were to be placed. 30. Stephensons failed to undertake an adequate site-specific risk assessment before commencing work at the site. INFORMATION, INSTRUCTION AND TRAINING 31. Mr Kirchen had worked with the defendants on several occasions previously in assisting the movement of loads with a mobile crane. However, Mr Kirchen was not made aware of the contents of the Statement prior to performing the relevant work on 20 February 2007. In addition, no information, instruction or training about how to direct the crane or the manner of unhooking the load was given to Mr Kirchen by Stephensons prior to any work being undertaken at the site. No such information, instruction or training was given to Mr Kirchen by Stephensons when the relevant work was actually being undertaken. [ DISPUTED ] The method of directing the crane and unhooking the load was left entirely up to Mr Kirchen, who was able only to rely upon his previous three year experience as an apprentice carpenter during which time he had undertaken similar tasks on an ad hoc basis. 32. Mr Kirchen did not receive any instructions from Stephensons with respect to craning operations or the dogging of loads. No instructions were provided to Mr Kirchen by Stephensons as to any aspect of craning operations being undertaken by the site on the day of the incident. [ DISPUTED ] Mr Soltau knew that Mr Kirchen did not possess the necessary qualifications with respect to craning, dogging or rigging. 33. At no time did Stephensons provide Mr Kirchen with any training with respect to the tasks of assisting the movement of loads with a mobile crane, dogging and/or rigging of loads to be lifted by the crane. 34. [ DISPUTED ] The prosecutor asserts and the defendants deny that Mr Kirchen was involved in work that required a dogging certificate at the time of the incident on 20 February 2007. SUPERVISION 35. At no time was Mr Soltau present on the first level of the dwelling at the site in order to unhook loads from the crane. Instead Mr Soltau was on the ground level within a few metres of Mr Kirchen and in the direct line of sight of, and had voice communication with him. Mr Soltau walked away from the pack of floorboards to the eastern side of the building to pick up another load. Mr Soltau was in the process of undertaking that task when Mr Kirchen fell from the first level. 36. [ DISPUTED ] Stephensons failed to properly supervise Mr Kirchen and the crane operator Mr McNeill. Mr Soltau directed or allowed Mr McNeill to lift the load - or otherwise failed to prevent Mr McNeill from doing so - while the pack of floorboards, which eventually fell onto Mr Kirchen, was still partially slung to jib of the crane. 8 Shortly after the incident occurred, the prosecutor attended the site. He described the partially constructed townhouse as having ground level wall frames installed with five floor joists still in position on the northern side of the structure. He said that initially seven joists had been installed but two of these "were broken into different lengths on the floor". He described the remaining five floor joists as being "secured to the top plate of the wall frames by nails, through the bottom rung of the floor joist. The second and third, as well as the fourth and fifth floor joists had intermittent blocking installed to improve joist stability." 9 The material in [28] states that the joists "had not been properly secured, and were not installed in accordance with the supplier's installation guide." The installation guide became evidence in the proceedings. The guide states that temporary battens should be installed by being nailed to the tops of the joists, to provide stability pending the installation of the ultimate flooring. The temporary battens were required to be "braced back to a point of rigidity (no more than 2.5 metres apart) to hold the top flange of each joist straight between supports." These temporary battens had not been installed by Mintark and this reduced the stability of the joists upon which Mr Kirchen was working and upon which the pack of floor sheeting had been deposited. As is set out in [28] of the statement of facts, neither defendant was aware of the necessity for the installation of temporary battens and, as a result, that they had not been installed. 10 Mr Kirchen's evidence consisted of a statement, which he had given to the prosecutor on 16 May 2007 and oral evidence given in these proceedings. In his statement, Mr Kirchen said that he was working on the day of the incident under the direct supervision of Mr Rod Harvey. During the course of the loading of the flooring boards by use of the crane, Mr Kirchen said that he gave hand signals to the crane operator as part of his normal duties. These were duties assigned to him by Mr Harvey. In fact, during the two months that Mr Kirchen had worked at the site, he had worked with mobile cranes, including guiding where he wished the loads to be put down. He had worked previously with Mr Soltau and Mr McNeill, the crane operator on the day. 11 At the time of the crane operation, immediately preceding the incident, the crane had been operated by Mr McNeill and Mr Soltau was acting a dogman. He said that Mr Soltau had hooked up the load and during the lift was watching him. It was Mr Kirchen's understanding that it was he who was directing the crane operator in the positioning of the load. He did not think that Mr Soltau was doing so because "he didn't even have the walkie-talkie on. He was not doing his job at all." At the time of the last lift, Mr Kirchen said that he saw Mr Soltau standing near the front door. After he had the crane operator re-position the load, it was lowered onto the joists and, as far as Mr Kirchen was aware, was perfectly horizontal. Mr Kirchen said that he then proceeded to get the left sling off the load. In order to do this, it would have been necessary for the left hand end of the load to have overhung a joist, otherwise it would have been impossible for the left sling to have been removed. Even then, on the basis of other evidence given in the proceedings, it would have been necessary for Mr Kirchen to reach out to the left some distance in order to manoeuvre the sling over the load. That load was approximately 900mm wide and 1 metre high. Mr Kirchen said in his statement that having got the left sling off he was about to take off the right sling but before he could do so the operator had lifted up the load, without him having given any indication that he should do so. He said that the right hand side of the load was then pressing down on the joists on which he was standing, they snapped and he fell through a hole onto the ground level below. After that, the pack of flooring came down onto him. 12 When discussing in his statement the procedures for directing crane operators and the unslinging of loads he said: "I have not specifically been through a training course but have been shown how to do this in a safe manner for all signals …. I was in the place and I knew what to do and what I wanted basically." 13 In his statement, Mr Kirchen was then asked whether he was assigned duties to unhitch slings from a load and he said: "I don't really know, I'm a carpenter, I can do it." 14 Rodney Gerald Harvey was a director of Mintark Pty Ltd, the employer of Mr Kirchen. A statement was given by Mr Harvey to the prosecutor on 31 May 2007. He said that Mr Kirchen had been involved in directing crane loads onto installed floor joists on the particular site for some time. He said that Mr Kirchen had been doing "that sort of work with me for most of his apprenticeship …." a period of about four years. It was his observation that Mr Kirchen "was giving hand instructions to the crane operator." 15 Mr Harvey made a "supplementary statement" for use in these proceedings on 30 March 2010. That supplementary statement dealt specifically with the circumstances of the incident. 16 Mr Harvey said that at the time of the incident he was standing between the crane and Mr Kirchen, a distance of five to ten metres. He said he had "a clear and unobstructed view of Mr Kirchen prior to and during his fall." He saw Mr Kirchen give directions for the movement of the load just before the incident occurred. He was unsure whether those directions were being given to Mr Soltau, who was on the ground floor, or directly to the crane operator, Mr McNeill. After the load had been repositioned, Mr Harvey said: "I saw the hook attached to the jib of the crane being lowered downwards, and the two nylon slings which carried the load go loose or slacken, which meant that the load was resting with its full weight on the floor joists and the crane was no longer carrying any of the load's weight. I saw that the load was resting flush and evenly on the floor joists. I then turned away from Mr Kirchen to resume my work." 17 Mr Harvey said that he then turned around to face Mr Kirchen "a short moment later." At that stage he "saw one end of the load raised in the air about one metre from the floor joists, and at around a 45 angle to the floor joists. I noticed that one of the slings had been removed, and that the load was connected to the jib of the crane by only one sling. The floor joists on which Mr Kirchen was standing were initially standing upright and were correctly in place. However, when one side of the load was raised in this manner, I saw that the joists on which Mr Kirchen was standing start to twist as it was nailed to the stairwell beam at a 90 angle, roll over and break which then put the weight onto the next adjoining joist causing the same to happen to it. The breaking of the joists caused Mr Kirchen to fall to the concrete slab below …." 18 In oral evidence, Mr Harvey said that when the load finally came to rest after being repositioned, one end of it was overhanging the joists by 600 – 800 mm. He was adamant that the load was "flat". 19 Mr Harvey also said that he did not see Mr Kirchen remove the slings, or indeed anything that Mr Kirchen had done prior to his observations immediately before the incident, which were described in his supplementary statement. 20 The evidence of the defendant Mr Soltau and the crane operator Mr McNeill was quite different to that given by Messrs Kirchen and Harvey in two material respects. The first concerned the involvement of Mr Kirchen in directing the positioning of the load, although he was not a designated dogman. The second concerned the involvement of the operation of the crane immediately prior to and at the time that the joists upon which Mr Kirchen was standing were dislodged. 21 Mr McNeill commenced employment with Stephensons Cranes in November 2003. He had, at the time of the incident, about four years experience as a dogman and held appropriate trade qualifications to be a dogman. At the time of the incident he had been in training to operate a crane for about eight months "on and off." At the time of the incident he was operating the crane under the supervision of Mr Soltau. Mr Soltau was acting as the dogman. In his statement to the prosecutor, Mr McNeill said that he had worked on a number of Mirvac homes and that Mr Kirchen had helped with the unloading of crane loads previously. He had not asked Mr Kirchen whether he had any qualifications or experience in directing the operator of a crane for the placement or positioning of loads. He didn't feel that it was unsafe to work with Mr Kirchen in this way. Furthermore, he said that on the day in question no question of safety arose because he was being directed by the dogman, Mr Soltau. 22 When asked to explain in some detail what had occurred at the time of the incident, Mr McNeill said, in part: "The fourth or fifth lift for the flooring, which the accident happened on and Rick two-way me over the back to hook down and stopped and hooked down again and the weight had come off and waited for Jamie to unhook and waited for Rick to say hook up and when I did hook up, I saw Jamie come down and the flooring came down as well. I turned the crane off and got over there." 23 Mr McNeill had previously said in his statement that at the precise time of the incident Mr Soltau had left the immediate area. 24 Mr McNeill also swore an affidavit which was tendered in the proceedings. It was sworn on 17 December 2009. 25 In the affidavit Mr McNeill said that it was "normal practice from my experience on Mirvac sites for the carpenters to walk on top of the floor joists without any type of fall protection." 26 In describing his understanding of the state of the building site, Mr McNeill said: 6. Mr Harvey indicated to us that he wanted packs of flooring sheets to be lifted up to the first floor and placed on the joists. Mr Soltau and I inspected the floor joists where the loads were to be set down. We could not access the first floor because the scaffolding had a sign to indicate that it was not complete. Neither Mr Soltau nor myself would use or go on to scaffolding which has a "scaffolding incomplete" sign, but we were able to inspect from underneath and did so. The floor joists appeared sufficiently strong and secure, and appeared to be set up the same way as others that we had delivered the same material to before, but neither I nor Mr Soltau is a carpenter and so we relied on Mr Harvey. Mr Harvey is a carpenter and was installing the joists with Mr Kirchen so I understood that they would know whether or not the subject floor joists could support the subject load. Both instructed us to land the loads on top of the floor joists. On their advice I therefore believed that the floor joists were secured and braced appropriately. 27 Mr McNeill described the manner in which the pack was secured and the manner by which it was lifted in the following terms: 9. The packs of flooring were secured together by steel straps, with timber "gluts" underneath to keep the boards off the ground and allow slinging. The two slings were each secured by a reeved (choker) hitch that pulls tighter the more weight is applied, pulling up against one of the gluts at each side, and attached to the crane hook. The slinging was done by me for the first load and Mr Soltau after that. Mr Kirchen played no part in any slinging or "hooking up" of any load. 10. When we were lifting the load I was under the direction of Mr Soltau, who was the designated dogman and my supervisor. He was standing in line of sight for me and for Mr Kirchen, standing on the ground near the building while Mr Kirchen was on the first floor. Mr Soltau and I were in communication by two-way radio. I did not take any direction from Mr Kirchen or anyone else. I could see that Mr Soltau and Mr Kirchen were in constant contact by voice and hand signals, and Mr Kirchen was telling Mr Soltau where he wanted the load, while Mr Soltau was instructing him and also directing me via the two-way. 28 Mr McNeill described the circumstances shortly before and at the time of the incident in the following terms: 12. When the load was landed for the second time Mr Soltau instructed Mr Kirchen to unhook the slings, which he did. I watched as he unhooked each sling, unlooped the reeve and dropped the end of the sling clear, before reattaching one end of each free-hanging sling to the hook. I saw the slings hanging free and Mr Soltau directed me to "hook up" to clear the slings away from the load. I hooked up until the slings were hanging free well above the load, with the lowest end about 2 metres above the load. Some seconds later I heard a "snap" or "crack" and saw Mr Kirchen suddenly fall through the floor, and the load tipped up and fell through the floor after him. I immediately switched the crane off and ran to Mr Kirchen and with several others helped to lift the pack of flooring off him. 13. For at least several seconds before Mr Kirchen fell and the load followed both slings were completely clear of the load, and hanging well above it. At no time did I raise the crane's hook while the load was still partially slung to it. If I had done so while one sling was fitted, the load would have simply lifted at one end and stayed attached to the crane, due to the way the slings were fitted. I have lifted loads like that on the ground, as sometimes we cannot get access to get the second sling on so we put one sling on with a choker reeve and use that to lift the load at one end so that we can swing it around a short distance to a better location so that we can put it down and get the second sling on. 14. It also would have been immediately obvious if the sling was still attached. Apart from seeing it take up I would immediately have felt it through the controls. You feel the weight coming on, especially with a load as heavy as a pack of flooring, and it would also have registered on my crane instrument panel immediately. 15. If the load had somehow slipped out of the sling, from my experience the Crane's boom would have sprung upwards as the load was released and there would have been a loud noise and violent recoil, possibly overbalancing the crane as the one tonne load fell free. 16. None of this occurred. Instead the load was landed and the slings were fully released and swinging free above the load several seconds before Mr Kirchen and the flooring fell. 29 The description contained within his affidavit, which was prepared for the purpose of these proceedings, is much more detailed than the information given by Mr McNeill to the prosecutor in the course of his investigations. I do not state this in any critical sense, because Mr McNeill was merely responding to questions asked of him by the prosecutor. Nevertheless, there is a great amount of detail recalled by Mr McNeill almost three years after the event, as contained in his affidavit, some of which might be expected to have been covered in the statement Mr McNeill gave to the prosecutor. The defendant made the same submission concerning the supplementary statement made by Mr Harvey, which covered a lot more detail than had been contained within Mr Harvey's original statement given to the prosecutor. Again, as the defendant's solicitor pointed out in submissions, Mr Harvey's supplementary statement was created within one month of the date of the hearing. 30 In the course of his oral evidence, Mr McNeill said that he had worked with Messrs Kirchen and Harvey many times at the site. On the day of the incident, he did not have any conversation with Mr Kirchen about where to land the load. He said that in fact he was reliant on directions being given to him by Mr Soltau using the two-way radio. At all times he had a clear view of Mr Kirchen and could see his hand signals. Despite the fact that Mr Kirchen was giving hand signals, Mr McNeill said that he was at all times listening to Mr Soltau, the dogman, and the directions that he gave him. 31 Mr McNeill further said in evidence that when repositioning the load he placed it down again vertically. However, he was unable to see all of the load. He could see about three-quarters of the top part of the load. Furthermore, he could not see the joists on which the load had landed, and therefore could not see how the load was sitting on the joists. His view of Mr Soltau at the time was obstructed by framework as he was walking back and forth. 32 Mr McNeill denied that Mr Soltau was speaking on a mobile phone. 33 Mr McNeill was adamant that he had seen Mr Kirchen remove both slings from the load before he hooked up. He said that he could see the top of the slings. He hooked up the load because Mr Soltau had told him to do so, and not because of any indication having been given to him by Mr Kirchen. 34 The defendant, Richard Gordon Soltau, gave a statement to the prosecutor on 11 July 2007. In addition, he swore an affidavit on 17 December 2009 containing further material and gave oral evidence in the course of the hearing. 35 Mr Soltau had about nine years experience in the construction industry as at the date of the incident. He was qualified and ticketed as a crane operator and as a dogman. At the time of the incident, he had had eight years experience as a dogman and seven years experience as a crane operator. He had been employed by the first defendant for some years. 36 In addition, Mr Soltau had "some years working on a casual basis for TAFE to provide practical classes to workers undertaking their dogging training." To this extent he operated cranes in a training environment. 37 Mr Soltau told the prosecutor that on the day of the incident he was assisting in training Mr McNeill as a crane operator and was carrying out dogging duties. He said that the operation of the crane on that day was undertaken on the basis that Mr McNeill was the driver, he was the dogman and that Mr Kirchen directed where the loads were to be placed. He said that these directions were given to him by Mr Kirchen verbally and that he used the two-way radio to inform Mr McNeill. As part of the working arrangement, Mr Kirchen was involved in assisting in landing the load and in unhooking the load. It was Mr Soltau's understanding that Mr Kirchen was carrying out this work under the supervision of Mr Harvey. 38 In terms of assessing the risk of the work, Mr Soltau said that "we only did a crane specific risk assessment, we didn't do a lot site specific one." 39 Mr Soltau did not regard the participation of Mr Kirchen in the unloading operation on the day of the incident as being unsafe in any way. He said that it was "normal industry practice" for persons to assist in the unloading of loads and he did not regard this as dogman's work. 40 In describing the incident to the prosecutor, Mr Soltau said that Mr Kirchen had told him where he wanted the load to be placed and we let the remainder of the weight off the tension off the slings then Jamie unhooked the slings they were reeved up the slings had dropped down in front of me, I told Nathan to hook up he hooked until the slings were clear of the load and at that stage I walked to the east of the building to hook up the third pack of flooring when I heard the sound of cracking timber I saw Jamie fall to the ground and that stage I saw him hit the ground with his shoulder and head …." Mr Soltau was adamant that the slings had cleared the load prior to the incident occurring. 41 Mr Soltau's affidavit contained some additional information. He said that prior to work commencing on the day of the incident he had inspected the site "but I was unable to access the first floor due to a sign depicting "incomplete scaffold". I understand that the Head Builder, Mirvac, is responsible for installing the scaffold. I looked at the joists from underneath and they appeared to be set the same way as always, and I saw no problems." Mr Soltau also said that the landing of loads had been done "hundreds of times" prior to the incident working on instructions given by either Mr Kirchen or Mr Harvey, and he understood this to be a safe method of operation. He said: "I am not a carpenter and so I relied upon Mr Harvey's opinion as to whether the joists were properly installed and strong enough, and a safe place for us to land the load." 42 Mr Soltau emphasised that the participation of Mr Kirchen and Mr Harvey in the unloading was confined to "telling us where they wanted the load placed on each floor, as well as unhooking the slings …" which he described as "a very simple task they'd done many times before and which they were doing under supervision." 43 I set out below some further material contained in Mr Soltau's affidavit: 10. At all times we were present Mr Kirchen remained on the first floor level. He was walking on top of the floor joists. He was not wearing any type of harness or other fall protection. I do not know the legal requirements for fall protection applicable to carpenters. As far as I have observed, carpenters typically walk around on floor joists without fall protection. Including our previous dealings with Mr Kirchen I have not ever seen him nor Mr Harvey wearing a safety harness or similar. 11. On our crane we carry sufficient harnesses for our use and I am trained in their use and application. I am not sufficiently qualified to provide advice or training to Mr Kirchen regarding the use of harnesses or other fall protection, nor was I in a position to instruct him or direct him to do so. 12. I did not access the first floor because of the "incomplete scaffold" sign on the scaffolding around the building. I directed operations from the ground near the building, from where I had direct line of sight to where the loads were going and to the carpenters, and was close enough to the carpenters to communicate with them by voice and oversee what they were doing. 44 Mr Soltau described the method of slinging each load by use of two nylon slings rigged in a "choke reeve", which he described as a running loop, like a noose, which tightens under load and pulls hard against the glut to hold the pack securely. It is the safest kind of slinging for these types of loads and according to my training and experience and the ratings on the gear each sling alone was more than capable of safely supporting the load. Mr Soltau also described the unhooking of each load undertaken by Mr Kirchen. It consisted of undoing the nylon slings from around each load after it was landed. He described this as a simple task not requiring any detailed instructions. As I understand the evidence, the slings were undone by moving them when the tension had been released over the ends of the load. 45 In describing the incident in his affidavit, Mr Soltau said that Mr Kirchen had told him where he wanted the load finally placed and Mr Soltau had then directed Mr McNeill to "hook down" to release the tension on the slings so that Mr Kirchen could undo them. He said: 19. Mr Kirchen then unhooked the two slings, letting both hang from the crane hook but clear of the pack of floor sheeting that had just been landed. I could clearly see the ends of the slings hanging down in front of me, through the floor joists, confirming both were clear of the load. 20. I then instructed Mr McNeill to "hook up" (raise the hook) and position the hook and slings ready for the next load. After both slings were raised above and clear of the landed load of floor sheeting I started to walk towards the eastern corner of the building to get ready to sling the next load. 21. Several seconds later, after I had covered several paces, I heard the sound of timber breaking behind me, and I immediately turned around to see Mr Kirchen falling to the ground floor, hitting the ground with his shoulder and head. I ran over to assist and as I did so the pack of flooring sheets fell through the floor where they hit the ground at an angle and then tipped over onto Mr Kirchen. With a couple of others who had run over we lifted and held the sheets of flooring off him while someone ran to get an ambulance. 22. I deny that Mr McNeill lifted the load or raised the crane hook while one sling was still attached. Both slings were swinging clear below the floor level when I told Mr McNeill to "hook up" and I saw them swinging freely well above the load before I turned away. It was some time after that before Mr Kirchen fell. 46 In the course of his oral evidence, Mr Soltau said that the incident had had a grave effect on him. He said that he felt "really bad for Jamie", that he was diagnosed after the incident as suffering from post traumatic stress disorder, his marriage had fallen apart and he had lost his confidence. He has had difficulty sleeping and is now extremely cautious in relying on decisions made by other persons. He has given up teaching at TAFE. 47 In cross-examination, Mr Soltau was adamant that the load when deposited on the joists was not tilted in any way and was perfectly flat sitting evenly on the joists. 48 Mr Soltau denied using a mobile phone during the course of the operations immediately prior to the incident, and insisted that he had been using a two-way radio to communicate with Mr McNeill, which was hooked up under his coat. Furthermore, he was adamant that whether Mr Kirchen was using hand signals to communicate with Mr McNeill, it was he (Mr Soltau) who was in contact with Mr McNeill and that Mr McNeill only responded to his directions. 49 The narration of the evidence which I have set out above demonstrates a clear and marked contrast in the versions as to what happened between that given on the one hand by Messrs Kirchen and Harvey and on the other hand by Messrs McNeill and Soltau. Whatever the tension in this evidence, I am satisfied beyond a reasonable doubt that Mr Kirchen was, at all relevant times, giving hand signals to Mr McNeill and that Mr McNeill was conscious of them. However, there is no evidence of any hand signals being given by Mr Kirchen to Mr McNeill that conflicted in any way with any instructions given by Mr Soltau as the dogman. I cannot conclude that, per se, the giving of hand signals by Mr Kirchen in some way caused or contributed to the unfortunate incident. 50 However, the controversy concerning the state of the load immediately prior to the incident arguably has a much greater impact upon an understanding of precisely what happened at the time of the incident and why. Both Mr Kirchen and Mr Harvey were adamant that Mr McNeill raised the load unexpectedly and whilst one sling remained attached to the load. On the other hand, Mr McNeill and Mr Soltau both stated that both slings had been removed from the load and were hanging freely so that it was not lifted in any way at the time that Mr McNeill hooked up. In support of this, Mr McNeill said there was no tension felt when he raised the slings and no recoil at the time the load fell. 51 As will be seen, whether and to what extent the load was still attached to the crane will be vital in determining what it was that either caused or contributed to the collapse of the joists, which in turn caused Mr Kirchen to fall. In making this comment, I emphasise that the joists were not as stable as they might otherwise have been if the stabilising battens had been placed upon them. 52 This leads to a consideration of the expert evidence given by Jonathan O'Brien, a consulting engineer who was retained by the defendants to provide an opinion for the purpose of the proceedings. I should say at the outset that Mr O'Brien was clearly well qualified to proffer an expert opinion for the purpose of the proceedings. He has undoubted academic qualifications and on the job expertise to assist the Court in dealing with these proceedings. In formulating his opinions as contained within an extensive written report, Mr O'Brien relied upon material contained within the prosecution's brief served on the defendants consisting of two volumes of documentation. Furthermore, he had access to a set of ten photographs taken "by an unknown photographer – possibly an insurance investigator", one of which assumed some significance. This was a photograph said to represent a view of the accident location taken some little time after the incident. It was said by Mr O'Brien to show "two crane slings visible in the background" and that "neither sling seems to show any evidence of a residual choker loop." There is then a reference to that fact as being "potentially critical." 53 The particular photograph was not proven for the purpose of the proceedings and to the extent that Mr O'Brien has relied upon it for the purpose of his opinion, it is my opinion that it is unsafe to accept his opinion. Furthermore, as Mr O'Brien conceded in cross-examination, the photograph does not show clearly the ends of the two crane slings and it is unsafe to rely upon it as disclosing the state of either sling. 54 In reality, I am unaware of precisely what documentation was contained within the prosecution's brief to the defendants, and I am therefore unsure as to the precise factual material upon which Mr O'Brien based his opinion. Furthermore, this Court has had the benefit of oral evidence given by a number of witnesses, which was obviously not available to Mr O'Brien. I instance also the further witness statement given by Mr Harvey which post-dates the date of Mr O'Brien's report. 55 In his careful analysis of what may have occurred, Mr O'Brien deduced that there may have been nine joists at the building site rather than the seven about which the preponderance of evidence refers. Mr O'Brien undertook certain calculations based on the fact that there were nine joists rather than seven, although, admittedly, he did undertake alternate calculations based on seven joists only being present. 56 Mr O'Brien, in his assessment of the factual circumstances surrounding the incident, was faced with the same dilemma that this Court is confronted with, namely the marked difference in the evidence about whether both slings were clear of the load at the time that the joists collapsed or whether one sling was still attached when the load upended. 57 After summarising such information as was available to him, and after surmising the likely course of events, Mr O'Brien concluded that there were a number of "unresolved questions" concerning the version of events given by Mr Kirchen and Mr Harvey. These included questions about the way in which Mr Kirchen had gone about unhooking and re-hooking the sling which he said had been removed, why the crane operator would begin to lift the load when he had full vision of what was occurring, why the crane operator would continue to lift once the line had become taut, why the crane operator did not indicate that he had received any "shock loading" to the crane once the line became taut, why the remaining sling would not hold onto the load so as to preclude it from falling, why the strapping bands around the load would have broken and why the debris, which he noted from the photographs, had been displaced "so far to the right". 58 However, Mr O'Brien was sceptical about why the joists would suddenly collapse with a static load being placed perfectly evenly transverse to them. This is particularly so given the agreement that the load tipped before falling. Mr O'Brien surmised that the length of the load would have exceeded the area upon which it rested, transverse to the joists. Therefore, some part of the load must have overhung the joists, probably at both ends. However, there was insufficient information available to Mr O'Brien to indicate the length of any overhang in either direction. Mr O'Brien calculated that a load of length 3.6 metres would fall when an overhang of 1.8 metres developed. It would be necessary for such an overhang, perhaps caused by the failure of joists upon which the load was supported, to cause the load to fall. Again, there was insufficient information available to Mr O'Brien to enable him to conclude with any certainty what in fact happened. Furthermore, the matter was complicated because the failure of one or more of the joists could have been caused by the additional weight that Mr Kirchen applied to the edge of the joist as he either stood on it or pushed against it, coupled with the weight of the load, or by the "slow pulling out of one of the nails in the girder's bottom flange" or "some form of creep or progressive cracking effect in the timber." 59 Mr O'Brien thought that it was possible that whilst all of the witnesses thought that the load was positioned level resting on the joists, it may in fact have been positioned at a slight angle, caused by one of the gluts resting on a joist. It could therefore have been out of level by about 10mm over a 3.6 metre length, and this would not be detectable to the eye. This may have contributed to the failure of the joists. However, there is simply no evidence given in these proceedings that would suggest that the load was positioned other than directly resting upon the joists. 60 Mr O'Brien was of the opinion that more precise information about a number of matters would be required before he could furnish a more concluded opinion about how the incident occurred and what may have caused it. This information included more precise details of the load, its length and width, the number of straps, the strapping arrangement, the nature of the gluts and their spacing, the exact number and spacing of the girders, the nature of the end fixings, a precise indication of where Mr Kirchen was standing at the time that he fell and so on. 61 Whilst the Court appreciates the detailed examination undertaken by Mr O'Brien and his best intentions to furnish an opinion that will assist in the determination of these proceedings, in all the circumstances there are so many imponderables that it would not be appropriate to accept Mr O'Brien's report and his oral evidence as providing any safe or appropriate basis upon which to resolve the controversy between the witnesses to which I have previously referred. But I do accept as valid the doubts he has raised concerning the cause of the collapse of the joists on the hypothesis of either competing version. The factual background – resolving the controversies 62 The commencement point for the assessment of penalty is a consideration of the objective seriousness of the offence. In order to deal with this matter I will need to deal with the state of the evidence concerning the circumstances in which the incident occurred and the factual controversy to which I have earlier referred. 63 Any factual matter that is adverse to the interests of the defendant must be proven to the criminal standard. There is a discussion about these matters in the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in the High Court of Australia in R v Olbrich (1999) HCA 54; 199 CLR 270. At [25] and [27], their Honours said: 25 Much of the discussion of fact finding for the purposes of sentencing addresses questions of onus and standard of proof. References to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings; there is no such joinder of issue. Nonetheless, it may be accepted that if the prosecution seeks to have the sentencing judge take a matter into account in passing sentence it will be for the prosecution to bring that matter to the attention of the judge and, if necessary, call evidence about it. Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say "if necessary" because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion.) (Footnotes omitted) … 27 As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 (per Winneke P, Brooking and Hayne JJA and Southwell AJA) - that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.") 64 During the course of submissions, the attention of the Court was drawn to the fact that some of the witnesses had made recent statements which contained matters of detail not included within the information originally given to the prosecutor when he investigated the incident some months after it occurred. The fact is, however, that Messrs Harvey, McNeill and Soltau all made statements or swore affidavits for the specific purpose of these proceedings. Furthermore, Mr Kirchen in his oral evidence in the proceedings was much more specific in terms of some of the matters when compared with information which he had given to the prosecutor in his statement made on 16 May 2007. On one view, these more recent documents and the oral evidence would usually be found to be more detailed and more focussed by reason of an upcoming court proceeding without any suggestion of recent invention or exaggeration. 65 I am unable to reconcile the two versions given by the various persons whose evidence I have summarised. I am unable to conclude by reference to the evidence given by any of these persons that one or other of the versions is to be accepted over the other. Neither version provides any entirely satisfactory explanation as to what caused the joists to fail and the load to slip and fall in the way in which it did. For example, even if I were to accept that one sling had been removed, why did the choker effect of the other sling fail to hold the load? In the same way, the fact that the load fell may be more consistent with both slings having been removed. 66 Furthermore, there is no evidence about whether and to what extent the placement of the load caused or contributed to the collapse of the joists. Any such evidence would require an opinion of an expert. It would involve a conclusion about the stability of the joists, the forces that were brought to bear on them and the impact of the static force created by the placement of the load in the context of the period of time which elapsed between its placement and the collapse of the first joist. I shall return to this matter when considering the objective seriousness of the offences. 67 I conclude, in the context to which I shall shortly refer, that the prosecutor has not proven a number of facts adverse to the interests of the defendants to the required standard. 68 I turn now to deal with the statement of facts and those parts of it that were disputed and that relate to the circumstances in which the incident itself occurred. It follows from the conclusions in [65] that I must find that the prosecutor has not proven beyond a reasonable doubt that at the time that the incident occurred the load started to lift whilst one of the slings, namely the right sling, was still attached and that those disputed facts in the statement of facts at [15] and [36] that are based on this allegation have not been proven and should be struck out. 69 I now deal with the remaining matters of contention as contained within the statement of facts. The first relates to the expertise, capability and qualifications of Mr Kirchen to become involved in the positioning of the load and the unloading of the load, including the direction given by him as to where the load was to be positioned. 70 There can be no doubt that the work undertaken by the defendants contemplated that Mr Kirchen would be involved in directing where the load was to be positioned and that he was expected to become involved in the unloading process. I have previously indicated that I accept that Mr Kirchen was giving hand signals directed to Mr McNeill, that Mr Kirchen was in Mr McNeill's sight and that Mr McNeill was aware of the hand directions being given by Mr Kirchen. There is no suggestion by any witness that Mr Kirchen had not had experience in doing any of these things or was not competent or capable of doing so. The evidence is that he had been involved in this type of work for some months on the Mirvac site. The evidence is that this was common practice at least on that site. 71 The prosecutor asserted that it was unlawful for Mr Kirchen to be involved in this work because in order to do so he would require to be certified as a dogman. "Dogging" was, at the time of the incident, defined by regulation 265 of the Occupational Health and Safety Regulations 2001. It was defined to mean: (a) The application of slinging techniques, including the selection or inspection of lifting gear, to safely sling a load, or (b) The directing of a crane operator or hoist operator in the movement of a load when the load is out of the operator's view. 72 Some clarification of the requirements imposed by the relevant regulations, as understood by the WorkCover Authority of New South Wales, was contained within an information document published by it, which became evidence in the proceedings. This information sheet seems to indicate that a person can "sling and direct a load" without a dogging certificate "when the load remains in clear view of the crane operator and there is no requirement to exercise judgment in relation to which sling to use, how to sling the load, the condition of the sling or the load and its centre of gravity." This would seem to imply that where a load does not remain in clear view of the crane operator at all times, a dogging certificate is required. This would seem to be consistent with the definition of "dogging" contained within regulation 265, which I have previously set out. 73 The evidence in these proceedings was that at some stage Mr McNeill was unable to see the bottom part of the load, for approximately "half a foot above the floor joists". Accordingly, he was not able to see all of the load during the very last part of the operation when it was placed on the joists. This raises for consideration the question as to whether or not the load is "out of the operator's view" when some part of it cannot be seen, or whether the definition is intended to be read as requiring that all of the load must be out of the operator's view when directed, so as to attract the requirement for a dogging certificate. 74 The regulation was the subject of consideration by Boland J, President, in Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163. His Honour's consideration of this matter commences at [131]. However, the facts in those proceedings were relevantly different to those that applied in these proceedings and his Honour's focus of attention was on whether judgment had been exercised by a person in a particular manner so as to attract the requirement to hold a certificate. For reasons that follow, it is not necessary, in my opinion, that I resolve this particular aspect of these proceedings. 75 No matter whether Mr Kirchen should have been so certified, it would still be necessary for the prosecutor to establish that the fact that Mr Kirchen was not so certified created, in all the circumstances, the risk to his health, safety and welfare particularised in the amended application for order. Whilst this is not an essential ingredient of the statutory offence, it is an essential element of the offence with which the defendants are charged. Given the finding that I have made, that the prosecutor has failed to establish beyond a reasonable doubt that the incident occurred in the circumstances attested to by Mr Kirchen and Mr Harvey, the Court is left with a version that has the joists failing after the load has come to rest on the joists and both slings removed. In these circumstances, it is hard to see on the evidence how the participation of Mr Kirchen in these activities without being certified as a dogman can be said to have caused the risk of falling or of a load falling from a crane upon him. This is sufficient to dispose of disputed [34] in the statement of facts and renders the disputed matters in [19], [31] and [32] irrelevant in that they refer to certification or qualifications. 76 It is then necessary to deal with disputed [23],[24] and [25]. These require reference to the safe work method statement that the defendant, Stephensons Cranes, had promulgated. 77 The safe work method statement used by Stephensons Cranes was in evidence. Item 12 applied to "Crane Crew working with Personnel accessing Crane Working Radius." The statement required that all persons assisting crane crew were to sign a joint safety analysis document and that "designated dogman only to direct crane." Mr Kirchen did not sign the document and it was asserted that in allowing someone other than Mr Soltau as designated dogman to direct the crane, the defendant Stephensons Cranes breached its own safe work method statement. I agree that this is a matter that has been proven. It is clear on the evidence that Mr Kirchen was assisting the crane crew and therefore should have been required to sign the job safety analysis document. Furthermore, he was directing the crane in the sense that he indicated where the load was to be positioned. This was contrary to the safe work method statement. I should observe also that item 12 also provides that there should be communications from one source only. As I have found, Mr Kirchen was in direct communication with Mr McNeill. 78 Item 13 of the safe work method statement required fall arresters and safety harnesses to be used in work at heights. This item does provide evidence pointing to a requirement for heightened awareness by this defendant and its employees to ensure that anyone participating in the operation of the crane, as was Mr Kirchen, was provided with appropriate fall arrest equipment. 79 Item 11 required the "dogman to ensure Load is clear and confirm minimum area flat, smooth and continuous beneath Load." 80 This provision in the defendant's safe work method statement is replicated in particulars (b) of the charge brought against Stephensons Cranes Pty Ltd and particular (e) of the charge brought against Mr Soltau with the addition of the words "and otherwise secure". The prosecutor alleged that the failure to ensure that the load was deposited on a flat, smooth and continuous area and was otherwise secure was one of the manifestations of a failure to take adequate steps to guard against the risk of injury to Mr Kirchen. It is clear that there has been a breach of this part of the safe work method statement. 81 I refer to particulars (c) and (g) respectively. The defendants were admonished because they allowed the load of flooring materials to be deposited on an area where not all of the floor joists constituting the landing area had been installed across the whole floor area, as well as being adequately secured. I note, in passing, that such a particular is, prima facie, inconsistent with particulars (b) and (e) respectively which would, as I have said, prohibit the depositing of a load of flooring materials on an area upon which the flooring materials had not already been affixed. 82 I am satisfied, on the evidence, that the material within [16] of the statement of facts, which is not admitted, has been proven beyond a reasonable doubt. The evidence of all of the witnesses to the event, save for Mr Soltau, is to the effect that one or more of the joists cracked. There is also evidence that one or two joists twisted before the cracking sound that led to two joists breaking and falling. 83 Of course, having determined that [15] of the statement of facts has not been proven beyond reasonable doubt and is thereby to be excluded from consideration, there is something of a hiatus because of the reference contained within [15] to the "inner last floor joist" flipping over onto its side which is connected with the reference to the "second floor joist" contained within [16]. For completeness, I repeat that on the evidence I am satisfied that there was a failure of two joists leading to Mr Kirchen falling as described in [16]. The objective seriousness of the offences 84 I have previously stated that this is the starting point for the assessment of the appropriate penalties to be imposed on the defendants. The particulars of the offences with which each of the defendants is charged are relevantly similar and it is convenient to deal with this aspect of the proceedings in relation to the charges brought against both defendants. 85 It is important at the outset to observe that each of the amended applications for order particularises the risk that is an integral part of the charge and asserts that the risk was the result of the acts and omissions particularised as failures with which each of the defendants is charged. The risk as particularised is "the risk of persons, in particular Jamie Kirchen, being injured from falling from a height and from a falling load, in circumstances where a slung load of flooring was lowered by mobile crane onto a second storey deck area consisting of unsecured timber joists, and where that load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse." It is an integral part of the particulars of the risk that the placement of the load in turn placed pressure on the timber joists and caused the unsecured joists to give way and collapse. I shall return to this aspect shortly. I observe for completeness that the allegations made against each defendant is that, as a result of the failures alleged, "persons" and in particular Jamie Kirchen "were placed at risk of injury from falling from a height, and from a load falling from a crane." 86 The only risk with which the Court is concerned is that which is particularised and the only circumstances with which the Court is concerned is the risk of injury from falling etc as brought about by the failures asserted against each of the defendants. 87 There is no doubt on the evidence that two joists collapsed and this caused Mr Kirchen to fall. But there is considerable doubt about what caused them to give way. On the evidence given in the proceedings, it is possible that the joists gave way because of any one or more of the placement of the load, the inadequate securing of any one or more of the joists, the inadequate blocking of the joists, the failure to affix stabilising battens, the inadequate number of joists, the failure of one or more of the nails affixing the flange or flanges of any one or more of the joists, or pressure applied by Mr Kirchen as he moved onto or along any one or more of the joists. 88 I have already observed that there is no evidence that would allow the Court to be satisfied on whatever standard of proof applied about the precise cause or causes of the first and then the second joist to fail. 89 It follows that in considering the seriousness of the offence with which of these defendants are charged, I cannot be satisfied that the placement of the load by itself actually caused the unsecured joists to give way and collapse. 90 Of course, as is obvious, the reference in the particulars of the risk to "unsecured timber joists" is not, in the circumstances of the facts proven in these proceedings, a reference to timber joists which were not secured in any way. They were, in reality, secured, but in an inadequate manner. 91 It might be observed that by their pleas of guilty the defendants conceded that the particulars of the risk were as set out in the amended applications for order. Notwithstanding such a concession, it is a fundamental requirement that the Court must be satisfied that there is an appropriate factual basis upon which a determination of guilt may be made, notwithstanding any apparent acquiescence which is inherent in the entry of a guilty plea. The offences charged against the defendants 92 I now turn to consider in some greater detail, and by reference to the particulars, the offences with which each of the defendants is charged against the background of the factual matrix which I have concluded has been proven and which applies to the proceedings. I have previously set out the provisions of each of the charges brought against each of the defendants. They are relevantly similar and I shall refer for convenience to those pertaining to the defendant Stephensons Cranes. The same observations will apply also to the charge brought against the defendant Mr Soltau. 93 The charge alleges firstly in general terms a failure to ensure that persons other than employees of the defendant "and in particular Jamie Kirchen" were not exposed to risks to health or safety in terms contained within s 8(2) of the Act. There then follows a number of particulars. The first is, as I have previously observed, the particulars of the risk. The risk is stated as involving a risk of injury from falling from a height and from a falling load by reference to a slung load of flooring being lowered by mobile crane onto a second storey deck area consisting of unsecured timber joists "and where that load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse." Accordingly, the risk of injury particularised within the charge brought against this defendant in these proceedings contains within it as an essential element the fact that the load placed pressure on the joists thus causing them to give way and collapse. I should emphasise that when speaking of an essential element, I am not referring to an essential element of s 8(2) of the Act, but an essential element of the particular charge particularised against this defendant and with which this Court has been asked to deal. 94 I repeat that I am not satisfied that there is evidence that would establish that the load placed pressure on the joists and caused them to give way and collapse, either solely or in conjunction with any other force. 95 There then follows the particulars of the charge that set out a number of failures on the part of the defendant. At the conclusion of the particulars there is the following passage: As a result of the defendant's failures persons, and in particular Jamie Kirchen, were placed at risk of injury from falling from a height, and from a load falling from a crane. The allegation therefore with which the defendant and the Court are required to deal for the purpose of these proceedings is that the failures as particularised, and with which I shall shortly deal, created a risk of injury of a person falling from a height and a risk of injury from a load falling from a crane. As I will discuss later in these reasons for judgment, it is not necessary that the prosecutor establish each and every one of these particulars in order to demonstrate guilt on the part of the defendant. It is only necessary that any one of them be established that has the relevant causal nexus with the particularised risk. 96 Particular (b) alleges a failure to ensure that there was a safe system of work for mobile crane operation activities, directed particularly to "slinging, landing and unhooking of loads." The further particularisation is directed to ensuring that there was a landing area that was "flat, smooth, continuous and otherwise secure beneath the load." This is obviously directed to the state of the first floor level which consisted of exposed joists upon which the load was placed. 97 For this particular to be made out, there must be factual material that would allow the Court to conclude that the placement of the load on the exposed joists per se caused a risk of injury as described. There is no evidence, as I have concluded, that would enable the Court to conclude that the placement of the load of itself and without anything more created a risk of falling, or, to use the language in the amended order, caused any person to be "placed at risk of injury" from falling etc. 98 Particular (c) alleges that the failure consisted of placing the load on floor joists on the first floor level in circumstances where not all of the joists had been installed across the whole floor area and were adequately secured. Again, there is simply no evidence given in the proceedings that would allow the Court to conclude that the risk as particularised was caused by the fact that the load was deposited in an area where some joists only had been installed, but not all of the joists had been installed, whether properly secured or otherwise. One would think that matters of this kind would need to be the subject of expert evidence, and no evidence was adduced about this point. Furthermore, such a failure as alleged is inconsistent with particular (b), which required the landing area to be flat, smooth and continuous. Presumably, this could only be accommodated after the flooring material, which was being loaded onto the area, had been installed. 99 I appreciate that, as previously observed, it is only necessary for the prosecutor to succeed on any one of the particulars so they can be seen to be postulated on an alternative basis. Nevertheless, some degree of "practicality" needs to be incorporated within the application of the Act, so that others operating in the building industry will understand whether flooring materials should only be placed on an area where flooring materials have already been affixed or whether it is permissible for flooring materials to be placed on exposed joists, albeit properly secured. 100 Particular (d) alleges a failure constituted in turn by a failure to ensure that there were available fall prevention measures. In that Mr Kirchen was clearly involved in the activities of the defendant and in that there was clearly a risk of falling through or from floor joists, I am satisfied on the evidence given in the proceedings that this failure, when taking its meaning as confined by the words used in (d), has been made out. However, if the "risk of falling" which is referred to in (d) is a reference back to the particulars of the risk contained in (a), which would incorporate within its terms a chain of events including collapse of the joists caused by the load placing pressure upon them, then it is arguable that this particular has not been made out. 101 Particular (e) alleges a failure to ensure that persons who were involved in the operation of the crane, the slinging of loads and the unhooking of loads should have had a certificate of competency in dogging or had been trained and employed as a dogman etc. 102 Given the state of the evidence in the proceedings, including the lack of evidence that the placement of the load upon the joists caused them to collapse, it is arguable that there is no evidence that the failures as alleged in (e) placed Mr Kirchen or any other person at risk of injury as asserted. 103 The failures particularised in (f), (g) and (h) may be dealt with in the same manner. They refer to supervision, the provision of information, instruction and training and the failure to undertake an adequate risk assessment. I repeat that, on the state of the evidence as I have found, it has not been proved that when the load was placed upon the joists it caused them to fail. It is arguable in these circumstances that there is no evidence that would allow the Court to conclude that any of these failures placed Mr Kirchen at risk of injury from falling from a height etc as alleged, especially in the context of the particulars of risk as asserted, namely one which includes a causal nexus between the collapse of the joists and the placement of the load upon them. 104 I should state for completeness that I fully appreciate that there is a fundamental difference between the essential elements of an offence and the essential particulars of a charge. It is mandatory for a prosecutor to establish the essential elements of an offence with which a defendant is charged. Failure to establish any one or more particulars of the charge will not be fatal, provided that ultimately such particular or particulars as are necessary to be established to make out the essential elements of the offence has or have been established. 105 Nevertheless, particulars have an important part to play in the administration of the criminal justice system. Because, in my experience, difficulties often arise by reason of the manner in which charges are particularised in prosecutions brought under the Act in this Court, it is important that I refer to this matter in some little detail. I had occasion to make reference to this matter in Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153, a judgment of a Full Bench of this Court in which I was in dissent. That judgment has been quashed by the New South Wales Court of Appeal with the consent of the respondent, Inspector Chaston. (Orders made on 19 April 2010 in 40417/09). I proceed on the basis that the observations which I made in my dissenting judgment may appropriately be restated for the purpose of these proceedings. In Sacco I said: 98 Particularisation of a charge brought against a defendant is a fundamental requirement in the administration of the criminal justice system. It is a basic tenet of criminal law that a defendant and the court must at all times be made aware of the particulars of the charge that has been asserted by the prosecutor. These are the particulars of how it is asserted that the offence has been committed. 99 In John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, Mason CJ, Deane and Dawson JJ said: the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" …. (At [14]). 100 The judgment in John L in turn referred to the oft quoted and seminal reasons for judgment of Dixon J and Evatt J in Johnson v Miller (1937) 59 CLR 467. 101 At 489, Dixon J spoke of: For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. 102 At 497 and 498, Evatt J said: It is of the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the ground of irrelevance, whereupon the court has both the right and the duty to rule upon such an objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularize the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. Indeed the matter arises at an even earlier stage. The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. 103 The importance of particulars was also referred to in the High Court of Australia in S v The Queen (1989) 168 CLR 266, and see especially the judgment of Gaudron and McHugh JJ at 288. 104 If further authority be required for such a fundamental requirement that a charge be properly particularised, I refer to the judgment of Barr and Hall JJ in the New South Wales Court of Criminal Appeal in Hannes v DPP (Commonwealth) (No 2) [2006] NSWCCA 373. (Basten JA agreed with their Honours' reasons). 105 At [397] to [400], their Honours said: 397 In Regina v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281; (2005) 223 ALR 580, at [52]-[53], Spigelman CJ stated: "Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include (i) Informing the court of the precise identity of the offence with which it is required to deal ( John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 519). (ii) Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients ( John L (supra) at 519). (iii) Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law ( S v The Queen (1989) 168 CLR 266 at 284, 285). (iv) Determining the availability of a plea of autrefois acquit and autrefois convict ( S v The Queen (supra) at 284; Walsh v Tattersall (1996) 188 CLR 77 at 90, 110-111). Of particular significance for the present case is a fifth function performed by an information: (v) To invest the trial court with jurisdiction to hear and determine the prosecution ( John L (supra) at 519)." 398 In John L Pty Limited v Attorney General (NSW) (supra) at 519, Mason CJ, Deane and Dawson JJ referred to the underlying requirement that an information inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed: "The rationale of that requirement has, in more recent times, commonly be seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet." 399 The joint judgment refers to dicta in Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 166 in the following terms: "… an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence." 400 Mason CJ, Deane and Dawson JJ in John L (at 519) referred to legislation enacted to render summary proceedings before justices less open to technical objection but observed that such legislation did not go so far as to abrogate the requirement "… that a valid information must at least identify the essential factual ingredients of the actual offence": see, eg., Smith v Moody (supra) at 60; Johnson (supra) at 486-487, 501; Ex parte Graham; re Dowling (1968) 88 WN (NSW) 270 at 280. 106 The relevance of particulars of a charge in the context of the criminal process is further exemplified by the recourse to particulars of the charge in determining whether pleas of autrefois acquit or the principle of double jeopardy applies. See, for example, the discussion by Abadee J in the New South Wales Court of Appeal in State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 535. 107 The part that is played by particulars of a charge in the context of occupational health and safety legislation was discussed by Doyle CJ in the Full Court of the Supreme Court of South Australia in Diemould Tooling Services Pty Ltd v Oaten (2008) 174 IR 80; [2008] SASC 197. Those proceedings dealt with a matter that has been settled some time in New South Wales, namely whether or not breaches of the equivalent of ss 8(1) and 8(2) constitute single breaches with multiple particulars or whether they are in essence separate breaches. 108 The observations of Doyle CJ concerning the structure of the Act and the particularisation contained within charges may be found in [31] to [36] of his Honour's judgment which are set out hereunder. 31 A contravention of s 19(1) of the Act can be described as constituted by a state of affairs rather than individual acts or omissions. That reflects the fact that the contravention of the statutory command is the failure to ensure, so far as is reasonably practicable, safety from injury and risks to health. 32 But a contravention of s 19(1) will be the result of an act or omission by an employer, that gives rise to a contravention of the section at an identified place (where an employee is at work) and in relation to an employee or employees who must be shown to be affected by the contravention, because of the failure to ensure so far as is reasonably practicable that the employee is or employees are safe from injury and risks to health. The employee or employees might, depending on the circumstances, be an identified person or persons. The employee or employees might be performing a certain kind of work or using a particular implement, and so might be a category or group described in that way. The employee or employees in question might be an employee or employees at a particular place, and designated in that way. Which of these is appropriate will depend on how the charge is framed. 33 The need to identify by way of particulars the content of a contravention will require that a charge be particular as to these matters. The charge against Diemould illustrates this. The charge is based on an alleged contravention of s 19(1) that manifested itself at a particular place on a particular day and in particular circumstances, when a named employee was "operating a horizontal borer". The naming of the employee in this case is part of adequately particularising the contravention relied upon. (The identity of the employee is not an element of the offence.) For present purposes it is neither here nor there that other employees that day or on other days might have been exposed to the same risk. 34 I should add that the allegation of a fatal injury to the named employee is unnecessary but legally harmless. The consequence of a contravention of s 19(1) is relevant to the question of penalty, but is not an element of the offence. 35 My point is that the complaint against Diemould identifies when and where and how Diemould is alleged to have contravened s 19(1). The particulars then specify the acts and omissions that gave rise to that contravention. It may be that not all of the particular allegations will be made good. At the end of the day the question for the Court will be whether the matters alleged establish that, on the day in question and at the place in question and in the circumstances specified, Diemould failed to ensure so far as was reasonably practicable that the named employee was safe from injury and risks to health. The particulars in subparas 3, 4 and 5 of the complaint identify the acts or omissions that are said to prove and to constitute the contravention of the statutory command. 36 It might emerge when the evidence is led that some of the matters alleged as particulars did not contribute to the contravention of the statutory command on the occasion in question, that is, when the employee used the horizontal borer. It may be that the evidence will reveal that a number of the matters alleged as particulars lack the required nexus in time, place and circumstance for them to be treated as proof or part of the proof of the alleged contravention. In that event the relevant particular will not be made out. It is possible that when the evidence is heard it might tend to establish not the offence alleged, but some other breach of the statutory command that plays no part in the offence alleged. In that event, latent duplicity will have emerged and the relevant particular should be struck out, and the relevant evidence held inadmissible. 106 Since publishing my reasons for judgment in Sacco, the High Court of Australia has handed down its decision in Kirk v Industrial Court (NSW) [2010] HCA 1; (2009) 239 CLR 531. Those proceedings examined the provisions of the Occupational Health and Safety Act 1983, the predecessor to the Act. Whilst the section numbers have changed, the discussion by the High Court of the provisions of the 1983 Act are, relevantly, applicable to the provisions of the Act with which I am concerned in the context of these proceedings. 107 In describing in general terms the offences created by the relevant provisions in the 1983 Act, the majority members of the High Court said: 14 A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. 15 The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. Section 53 provided: "It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision." … 17 Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply "with the provision of this Act". It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer. 108 At [30], the majority members of the Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) discussed the particularisation of charges under the former Act and in particular "particularisation of the acts and omissions said to found the charges." Their Honours commented: Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences. 109 Their Honours addressed this matter again at [34] where they said: Walton J referred to earlier case law that the duty imposed upon an employer "is to be construed as meaning to guarantee, secure or make certain" and that the duty is directed at obviating "risks" to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer's duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is – what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge. 110 I should not be taken to be asserting that in any way the particulars contained within each of the amended applications for order in these proceedings are deficient in the manner asserted by the High Court of Australia in Kirk. They are, in my opinion, clearly adequate. However, the purpose of the discussion is to emphasise that it is the charge as particularised which each of the defendants is required to meet and with which the Court is required to deal in the context of the factual matrix that has been established. 111 My review of the evidentiary material, which I have found to have been proven whether by agreement or otherwise, undertaken in the context of the manner in which the particulars of charge were framed leads me to conclude that there must considerable doubt about whether or not there is sufficient evidence to enable me to embark upon the sentencing process. I make these observations in the context of the conclusions which I have made concerning the evidence which was controversial and the impact of those conclusions on the agreed statement of facts against the overarching ingredients contained within the particulars of the charges brought against each defendant as set out in the amended applications for order. 112 There are a number of authorities that deal with the fact-finding process involved in the sentencing component in criminal proceedings. 113 The obligations imposed upon the parties in assisting the Court concerning the relevant and appropriate factual material in the context of a sentencing process were referred to by Howie J in the New South Wales Court of Criminal Appeal in R v Palu [2002] NSWCCA 381. Levine and Hidden JJ agreed with his Honour's judgment. At [21] his Honour said: 21 It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP , above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case. 114 The fundamental importance of the fact-finding exercise in connection with the sentencing process in criminal trials was emphasised in the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in the High Court of Australia in R v Olbrich (1999) HCA 54; 199 CLR 270. At [1], their Honours said, in part: 1 The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important. 115 I have previously extracted the discussion by their Honours concerning the onus and standard of proof in connection with the fact-finding process involved in the sentencing component of criminal proceedings at [63] above. 116 I should refer also briefly to the decision of the High Court of Australia in R v De Simoni (1981) 147 CLR 383. The Court concluded that in the circumstances of those proceedings, and in criminal proceedings generally, the sentencing process must be directed to the manner in which the charge is framed. If, for example, it is asserted by the prosecutor that the particular proceedings constitute an aggravated example of the offence, the prosecutor is required to prove the facts that establish that conclusion beyond reasonable doubt. Conclusion 117 Whilst it is clear that on the day alleged in each of the charges, and at the place so alleged, Jamie Kirchen fell from the first floor level of a construction site on which he was then working and sustained serious injuries, especially caused by being struck by falling flooring materials, and it is clear that two joists gave way causing him to fall, there is insufficient evidence before the Court to determine what was the cause or causes of the joists giving way. This circumstance needs to be considered in the context of the offence with which each of the defendants is charged. The charge is that which is set out in each of the amended applications for order. They contain particulars of the offence. It is each offence as particularised with which each defendant is being charged. Neither defendant has been charged with any other offence particularised in any other manner. 118 I have already referred to the functions fulfilled by the particularisation of an offence and the necessity for such particularisation to be given as will allow a defendant to understand the precise terms of the charge that is levelled and to enable a court to adjudicate. The particulars of the charge will identify the way in which it is said the defendant has committed the offence with which it has been charged and will establish the case that the prosecutor must make out in order to secure a conviction. Particulars when ordered and delivered will have a force and significance by virtue of the very fact that our criminal procedure provides for them. Once delivered they will have a consequence in the further conduct of the trial. Obviously they will have to be read with the terms of the indictment in defining the terms of the charge and the case which the Crown has to prove. (Per Macrossan CJ in the Queensland Court of Appeal in R v Lewis [1994] 1 QdR 613 at 624.) 119 For the reasons which I have previously given, there must be some doubt about whether or not the factual circumstances that apply to these proceedings, as contained within the agreed statement of facts and as found by me in dealing with the controversy between the parties, are sufficient to make out all or some of the particulars of the charge brought against each defendant. The conclusions that I have reached concerning the state of the evidence and the impact on the proceedings could not have been known to the parties at the time they made their submissions. In fairness they should be given an opportunity of considering and making submissions about what course the Court should now take. 120 For these reasons I stand the proceedings over to allow further submissions to be made by the parties. Administrative arrangements will be made by my associate to list the proceedings in about a month's time to allow for this to occur. 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.