Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. On 27 January 2021 AWB Contractors Pty Ltd (AWB), a marine and salvage contractor, was attempting to lift a yacht named "Crazy Train" from the water. In the course of that salvage operation the crane lift failed. The mast of the yacht struck and killed one of the workers Mr Max Haywood.

2. SafeWork NSW (SafeWork) has prosecuted AWB, alleging that AWB, being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, failed to comply with that duty and the failure to comply with the duty exposed workers, in particular Mr Haywood, to a risk of death or serious injury contrary to s 32 of the WHS Act. Section 32 of the WHS Act creates what is known as a Category 2 offence.

3. AWB has pleaded guilty. It has yet to be sentenced on a disputed facts sentence hearing. AWB is now in liquidation.

4. In these proceedings SafeWork has prosecuted Mr Paul Whitmarsh alleging a breach of Mr Whitmarsh's duty under s 27(1) of the WHS Act. SafeWork alleges that Mr Whitmarsh failed to exercise due diligence to ensure that AWB complied with its duty or obligation under s 19(1) of the WHS Act, because he failed to take reasonable steps to ensure that AWB had, so far as reasonably practicable, complied with its duty under the WHS Act.

The Task of this Court

5. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

6. The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that he did not commit the offence charged. If the defendant does adduce any evidence which is consistent with his innocence, he does not have to prove it; it is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of his guilt.

7. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find him guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of the offence charged then he remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.

8. I must determine whether each of the witnesses is a reliable witness; that is, whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally, but I may use my common sense, experience and wisdom in assessing the evidence.

9. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

10. I must consider whether the evidence of any witness is unreliable and warn myself accordingly: s 165 Evidence Act 1995 (NSW); Constantanidis v R [2022] NSWCA 4.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19689adb9bc6211057a13a56)

Disclaimer: Curated by HT Syndication.