Electrical ‘Exposure’ not proved by Hearsay Statement Made 2 Days Earlier

In Stevens v Nicholson [2025] QCA 205 (28 October 2025), the applicant – prosecuted for offences under the Electrical Safety Act 2002 (Qld), in respect of the death by electrocution of one of his workers– sought leave to appeal in respect of his conviction upon earlier appeal to the District Court from the Magistrates Court, in which latter court he had been acquitted.  The court – in a judgment delivered by Crowley J, with whom Bond and Doyle JJA agreed – granted leave to appeal, and overturned the applicant’s conviction, on account of the prosecution’s failure to prove beyond reasonable doubt when it was prior to the relevant event that the relevant overhead power line sagged so as to expose the applicant’s workers to electrical risk,  wrote:

Bond JA.

[1]  I have had the benefit of reading in draft the reasons for judgment of both Crowley J and Doyle JA.

[2]  I too would allow the appeal on the basis of the reasons expressed by Crowley J at [57] to [64] of his judgment.

[3]  I agree with the additional remarks made by Doyle JA reserving to a subsequent occasion an assessment of the significance to what Crowley J has described as the Breach Element of proof of a hearsay statement which is not admissible as proof of the truth of any fact expressly or impliedly asserted by the statement.

Doyle JA.

[4]  I have had the benefit of reading in draft the reasons for judgment of Crowley J.

[5]  I agree with his Honour that leave to appeal should be granted. The discretion to grant leave pursuant to s 118(3) of the District Court of Queensland Act is an unfettered one, informed by the interests of justice. As to the matters stated by his Honour in paragraph 19 of his Reasons, whether there is an important point of law or an issue of general importance, or whether it is necessary to correct a substantial injustice and that there are reasonable arguments that an error has occurred which needs to be corrected, are all factors which will be relevant to the exercise of the discretion. But while these are usually circumstances in which leave to appeal is granted, they are not exclusive criteria for the grant of leave.

[6]  Otherwise I gratefully adopt his Honour’s summary of the facts and the arguments in this case as well as his Honour’s description of the elements of the relevant charged offence.

[7]  In circumstances where the hearsay statement reportedly made by Colin Stevens is not admissible as proof of the truth of any fact asserted or implied in that statement, I wish to reserve for a case where it might be determinative, whether the fact of such a statement can be relied upon (as was done by the District Court Judge) for the purposes of alerting the applicant to the possibility of an issue with the height of the powerline or clearance of that line over the harvester such as to require the applicant to have done at least one of the things particularised by the respondent: cf paragraph 54 of the Reasons of Crowley J.

[8]  I would join with allowing the appeal on the basis of the Reasons given by Crowley J in paragraphs 57 to 64.

[9]  For these reasons, I agree with the orders proposed by Crowley J.

Crowley J.

[10]  The applicant was one of three members of a family trust that operated a pineapple farm near the Capricorn Coast called “Lake Mary Pines”.

[11]  On 14 July 2021, the applicant, his father Colin Stevens, and other workers were harvesting a field when the harvester either came into contact, or nearly came into contact, with an overhead power line. All of those who were on the ground, including the applicant, were electrocuted. One worker, Cody Smith, died.

[12]  After a subsequent investigation of the incident, the respondent, the Work Health and Safety Prosecutor, charged the applicant and his father each with an offence of failing to comply with the electrical safety duty owed by a person conducting a business or undertaking (PCBU).

[13]  After a joint summary trial of the charges in the Magistrates Court, both the applicant and his father were found not guilty, and the charges were dismissed. The respondent then appealed to the District Court against the Magistrate’s orders, pursuant to s 222 of the Justices Act 1886 (Qld). The appeal was heard by his Honour Judge Clarke.

[14]  On 28 February 2025, Judge Clarke delivered his judgment, dismissing the appeal in respect of Colin Stevens but allowing the appeal in respect of the applicant. 1 The applicant was thereby found guilty of the offence charged.

[15]  The applicant now seeks leave to appeal his conviction under s 118(3) of the District Court of Queensland Act 1967 (Qld). He initially relied upon the following three proposed grounds of appeal:

(1) The decision (to allow the appeal and record a finding of guilty against the applicant) was unreasonable, contrary to the evidence, and is not supportable;

(2) The decision involved a reversal of the onus of proof; and

(3) The decision involved the drawing of inferences from circumstantial evidence where conflicting inferences are equally open.

[16]  In his written submissions, the applicant conceded that Ground 3 raised the same argument as Ground 1, albeit differently worded. Consequently, Ground 3 was abandoned. It is therefore only necessary to consider the other two proposed grounds of appeal.

[17]  If leave to appeal is granted, the applicant seeks orders that his appeal be allowed; that the judgment of the District Court judge be set aside or changed; that the decision of the learned Magistrate at first instance be confirmed; and that the respondent pay the costs of and incidental to the application for leave to appeal.

[18]  In support of his application for leave, the applicant contends that the decision of the District Court judge to overturn the decision of the Magistrate involves basic but substantial errors that significantly impacted the decision to reverse the Magistrate’s finding, resulting in a miscarriage of justice.

[19]  Sections 118 and 119 of the District Court of Queensland Act govern the application for leave and any permitted appeal. It is well-established that the discretion to grant leave to appeal will usually only be exercised where there is an important point of law, or an issue of general importance or where it is necessary to correct a substantial injustice and there is a reasonable argument that there is an error to be corrected. 2

[20]  If leave is granted, the appeal is an appeal in the strict sense. The Court’s sole duty is to determine whether error has been shown on the part of the District Court, on the basis of the material before the District Court. The appeal is not limited to errors of law. Nevertheless, it is not for this Court to substitute its own findings of fact for those of the District Court judge. The Court is not engaged in a rehearing. A factual finding made by the District Court judge may only be reviewed on appeal to this Court if there is no evidence to support it or it is shown to be unreasonable. 3 Amongst other things, if such error is shown the Court may make any order it thinks proper, to ensure the determination on the merits of the real questions in controversy between the parties.

[21]  With those principles in mind, and for the reasons that follow, I would grant leave to appeal and would allow the appeal on the basis that Ground 1 is established. I am satisfied the applicant’s conviction is unreasonable or unsupported by the evidence.

The alleged duty and offence

[22]  By its charge, the respondent alleged that between 11 July and 14 July 2021, the applicant, being a PCBU, had an electrical safety duty pursuant to s 30 of the Electrical Safety Act 2002 (Qld) (ESA), to ensure that his business or undertaking was conducted in a way that was electrically safe; that he failed to comply with that duty; and that the failure exposed an individual to a risk of death or serious injury or illness, contrary to s 40C of the ESA.

[23]  Section 30 of the ESA imposed an electrical safety duty upon a PCBU in the following terms:

30 Primary duty of care

(1) A person conducting a business or undertaking must ensure the person’s business or undertaking is conducted in a way that is electrically safe.

(2) Without limiting subsection (1), the duty includes —

(a) ensuring that all electrical equipment used in the conduct of the person’s business or undertaking is electrically safe; and

(b) if the person’s business or undertaking includes the performance of electrical work, ensuring the electrical safety of all persons and property likely to be affected by the electrical work; and

(c) if the person’s business or undertaking includes the performance of work, whether or not electrical work, involving contact with, or being near to, exposed parts, ensuring persons performing the work are electrically safe.

[24]  Whilst there was an issue about the matter in the original summary trial before the Magistrate, there is no remaining controversy that the applicant was a PCBU and thus owed the electrical safety duty imposed by s 30 of the ESA.

[25]  Section 10 of the ESA provided the following relevant definitions:

10 Meanings of electrical risk, electrically safe and electrical safety

(1) Electrical risk means —

(a) in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity; or

…

(2) Electrically safe means—

…

(e) for the way a business or undertaking is conducted, that all persons are free from electrical risk from the conduct of the business or undertaking; and

…

(3) Electrical safety, for a person or property, means the person or property is electrically safe.

(4) In this section—free from electrical risk, for a person or property, means that —

(a) electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or

(b) if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.

[26]  As to what was “reasonably practicable” for a person to do to comply with an electrical safety duty, s 28 of the ESA relevantly provided:

28 What is reasonably practicable in ensuring electrical safety

In this Act, reasonably practicable, in relation to a duty to ensure electrical safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring electrical safety, taking into account and weighing up all relevant matters including —

(a) the likelihood of the hazard or the risk concerned happening; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about —

(i) the hazard or the risk; and

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

[27]  The offence with which the applicant was charged and later convicted in the District Court was an offence against s 40C of the ESA which relevantly provided:

40C Failure to comply with electrical safety duty — category 2

A person commits a category 2 offence if —

(a) the person has an electrical safety duty; and

(b) the person fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

…

[28]  The complaint and summons contained the following statement of the particulars of the charge:

1. NATHAN LUKE STEVENS (“the Defendant”), as trustee for the Stevens Family Trust, ran a pineapple farm named Lake Mary Pines at Bungundarra (“the Farm”).

2. The running of the Farm included workers (“the Workers”) harvesting pineapples using a tractor and harvester (“the Plant”) at a part of the Farm traversed by a live overhead powerline (“the Power Line”) (“the Harvesting”).

3. The Workers comprised the Defendant, Colin Stevens, Cody Smith, Joshua Fritz, Simone Ranchi, Michela Valsecchi, Ian Page, Raymond Sheriff and Ryan Doak.

4. The Harvesting posed an electrical risk, as defined in s.10(1)(a) of the Act, to the Workers (“the Risk’”).

5. While performing the Harvesting, the Workers was [sic. were] not electrically safe, as defined in s.10(2)(e) of the Act, because they were not free from electrical risk, as defined in s.10(4) of the Act, because the Risk had not been eliminated or minimised, so far as was reasonably practicable.

6. The Defendant could have ensured the electrical safety of the Workers while performing the Harvesting by ensuring the exclusion of both the Workers and the Plant from that part of the Farm that was beneath, or three metres either side of, the Power Line until either —

(i) the height of the Power Line had been measured and checked against the height of the Plant to ensure that there was at least a three-metre difference; or

(ii) the electrical entity, the works of which the Power Line formed part, had de-energised the Power Line.

7. The Defendant failed to implement the controls stated in the preceding paragraph, in contravention of his duty (“the Failure”).

8. The Failure exposed the Workers to a risk of death or serious injury.

[29]  The three-metre distance referred to in paragraph 6(i) of the particulars derived from the Electrical Safety Regulation 2013 (Qld), (ESR). Section 68 of the ESR imposed a duty upon a PCBU at a workplace, concurrent with the duty under s 30 of the ESA, to ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace came within an “unsafe distance” of an overhead electric line. Section 69(2) of the ESR further provided that any operating plant, or a vehicle, comes within an unsafe distance of an overhead electric line if it came within the prescribed “exclusion zone” for the operating plant or vehicle for the line. Under Schedule 2 of the ESR, the relevant exclusion zone here was three metres.

[30]  In short, the respondent’s particulars alleged that the applicant could have complied with his electrical safety duty under s 30 of the ESA by ensuring that the three-metre exclusion zone between the harvester and the overhead SWER was maintained until either the distance was measured and checked to ensure the three-metre distance or the power line was de-energised. It is convenient to refer to the proposed actions in paragraph 6(i) and (ii) of the particulars as the control measures the respondent alleged the applicant should have implemented.

[31]  The three-metre exclusion zone was also specified in the “Electrical Safety Code of Practice 2020 — Working near overhead and underground electric lines”, (Code of Practice) issued by the Electrical Safety Office, approved and published in accordance with s 44 of the ESA.

[32]  Section 44(1) of the ESA provided that the Minister may make a code of practice that states a way of discharging a person’s electrical safety duty. Under s 45(2) of the ESA, the Code of Practice was admissible in the proceeding against the applicant as evidence of whether or not he had complied with his alleged electrical safety duty. By s 45(3) of the ESA, the Magistrate at first instance, and the District Court judge on appeal, were permitted to have regard to the Code of Practice as evidence of what was known about a hazard or risk, risk assessment or risk control; and could rely on it in deciding what was reasonably practicable for the applicant to have done in respect of the discharge of his alleged duty.

[33]  Under the heading of “Unsafe distances”, the Code of Practice reiterated the obligation to keep persons and plant outside the relevant exclusion zone while an overhead electric line was energised. Under the heading “Operating plant near overhead electric lines” the Code of Practice relevantly stated:

The most effective way to eliminate any risk of electric shock is by turning off the power. The person conducting a business or undertaking, principal contractor or the operating plant owner should discuss options for de-energising or re-routing the electricity supply with the relevant electricity entity. These options are the most effective control measures and should be considered before anything else. The person conducting a business or undertaking, principal contractor or the operating plant owner should also consult with each other to ensure the electricity entity has been contacted.

De-energising or re-routing powerlines should be arranged with the electricity entity as quickly as possible as this can take some time to arrange. Where overhead powerlines have been de-energised, confirmation should be sought from the person in control of the powerline before undertaking any work.

If it is not reasonably practicable to turn off the power or re-route the powerline, the most effective control measure to reduce the risk is to establish ‘exclusion zones’ that prevent people, plant, equipment and materials from coming close enough to energised overhead powerlines for direct contact or flash-over to occur.

[34]  Under the heading “Risk management process for agricultural work near overhead electric lines”, the following risk was identified, “operating high machinery or machinery with height changeable attachments in paddocks where electric lines exist.” A listed factor to be considered in any risk assessment for such a risk was, “the possibility of sway and sag of the overhead powerlines…”.

…

The applicant’s conviction is unreasonable or unsupported by the evidence

[36]  There is no issue that the evidence adduced by the respondent was capable of proving beyond reasonable doubt that the applicant was a PCBU (PCBU Element) and as such he owed the electrical safety duty alleged (Duty Element). What is challenged by this appeal is the sufficiency and adequacy of the evidence adduced to prove that the applicant failed to comply with that duty (Breach Element) and, by extension, that his failure exposed an individual to a risk of death or serious injury (Exposure Element).

[37]  I have designated the fourth element as the “Exposure Element” in order to avoid some of the confusion often experienced in cases of this kind when the term “causation” is used. That issue was previously discussed in Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [78]–[91] and more recently considered in Cleanaway Operations Pty Ltd v Hanel [2025] SASCA 112, where, in respect of a like element of a similar statutory offence created by the Work Health and Safety Act 2011 (Cth), the Court stated at [287]:

Respectfully, it is preferable to describe the third limb as the ‘exposure element’ rather than a test of causation. That better reflects the text of the provision and avoids the potential for confusion with the use of the concept of causation in other contexts.

[38]  In Vibro-Pile, the Court had stressed that breach of a workplace safety duty imposed on an employer under a provision of the Occupational Health and Safety Act 2004 (Vic) did not require proof that the breach caused actual harm to any person, as the offences under the Act were “risk-based”, not “outcome-based” offences. For that reason, the occurrence of death or injury was of evidentiary significance only and was not an element of the offence. 6

[39]  In reiterating that the “exposure element” under consideration in Cleanaway was concerned with exposure to, and not manifestation of, risk, the Court relevantly observed, at [292]:

The WHS Act is contravened when there is a failure by the person conducting a business or undertaking to take particularised measures to prevent exposure to an identifiable risk. At the heart of any prosecution for offending under s 32 for a breach of the duty under s 19 is the exposure of workers and others to the risk of death or serious injury, and that does not require proof that there has been the manifestation of that risk, still less that a relevant accident or incident has actually caused death or serious injury.

[40]  It is pertinent to bear these matters in mind here as it seems to me that at times the distinction was overlooked. An offence against s 40C of the ESA may be committed regardless of whether any electrocution incident in which a person suffers death or serious injury occurs. In a case where such an incident does occur, that will of course have evidentiary significance in determining whether the elements of the offence are established. However, it must clearly be understood that in terms of proof of the Exposure Element that the focus is the alleged exposure to a risk of death or serious injury and not the actual death or serious injury that eventuated when the risk materialised.

[41]  It is not necessary to further canvass the entirety of the evidence adduced by the respondent in the summary trial before the Magistrate, nor all of the arguments put before this Court. The critical evidence upon which the respondent’s case ultimately depended at first instance and on appeal to the District Court, and which is determinative of the present application, concerns the events of 12 July 2021 described above and their relevance to the incident that occurred on 14 July 2021.

[42]  The significance of that evidence in the respondent’s case against the applicant and his father was outlined in the prosecution’s written closing submissions in the Magistrates Court, which put the case this way:

18. The prosecution case is that a potential change to the height of the powerline came to the attention of both defendants on 12 July 2021. In the context of the exchange that occurred on that day, it can be inferred that the height of the powerline had changed sometime prior to that. It is not known precisely what height the powerline sat at on 12 July 2021, or indeed when and/or at what rate the powerline moved before the incident that occurred on 14 July 2021. However, based on the exchange that occurred on 12 July 2021, and the observation by Colin Stevens on that day, the only available inference is that the height of the powerline had changed to some appreciable extent prior to that. In circumstances where the stay wire broke some unknown time prior to the incident on 14 July 2021, and where Colin Stevens noticed and commented on the powerline being in close proximity to the top of the harvester on 12 July 2021, a suggestion that the powerline had not moved at all on 12 July 2021 must be rejected as fanciful.

19. The prosecution case is that in circumstances where a potential issue had been identified, it was reasonably practicable to ensure at least the 3 metre exclusion zone from the powerline was maintained in all directions until:

a. The height of the powerline had been measured and checked to ensure the 3 metre difference to the top of the harvester was maintained; or

b. The electrical entity had de-energised the powerline.

20. Due to the incident that occurred on 14 July 2021, it can be inferred that neither of these things were done prior to the work activities that took place on that day. Plainly, the line was live and therefore had not been de-energised. So too, had the height not been measured and checked to ensure the exclusion zone was maintained. It certainly wasn’t maintained at the required 3 metre minimum distance as at the time of the incident on 14 July 2021. Once it is accepted, as the prosecution submits, that there must have been some appreciable change to the height of the powerline to prompt Colin Stevens’ concern and comment on 12 July 2021, the only available inference thereafter is that no one measured and checked to ensure the exclusion zone was maintained before the work was conducted directly underneath the energised powerline on 14 July 2021.

21. The prosecution case is that in the context of what was known, or ought to have been known, arising out of Colin Stevens’ observation and comment on 12 July 2021, it was reasonably practicable to do those things particularised. The failure to do so by each of the defendants constituted a breach of their duty to ensure their work at Lake Mary Pines was electrically safe. That failure had the effect of exposure of the group of workers involved to the risk of death or serious injury as alleged. (emphasis added)

[43]  The respondent reiterated these same submissions in the District Court appeal.

[44]  The undisputed facts emphasised in the extract of the prosecutor’s submissions highlighted above are critical to the outcome of this matter. Notwithstanding those undisputed facts, the submissions reveal that the respondent’s case was that Colin Stevens’ statement, “We almost touched the powerline”, necessarily showed that the height of the power line must have already changed to some appreciable extent by 12 July 2021; and that when Mr Fritz told the applicant what his father had said, the applicant then knew, or ought reasonably to have known, of the particular risk of electrocution posed by the lowered overhead power line. It followed that it was therefore incumbent upon the applicant to take the particularised control measures in order to discharge the electrical safety duty he owed under s 30 of the ESA. By failing to do so, the respondent contended, he exposed workers to the risk of death or serious injury or illness.

[45]  The Magistrate at first instance accepted Mr Fritz’s evidence concerning the comment made by Colin Stevens was accurate and reliable. On that basis, the Magistrate relevantly concluded:

I am satisfied beyond reasonable doubt that Colin Stevens made a comment about the harvester almost hitting the powerline and that Nathan Stevens dismissed the comment. However, what I cannot be satisfied is as to whether it did represent a danger or that an appreciable drop had occurred on 12 July. The statement made by Colin is not admissible against Nathan Stevens unless it has unequivocally been adopted by him as the truth, and this did not occur. So we are left alone with Nathan’s dismissive statement in response.

There is no corroborating evidence regarding a drop in the powerline prior to the incident of 14 July. For example, Fritz does [sic. not] 7 say that on 12 July, after he heard Colin’s comments, that he observed the powerline to be lower than usual. His response to the question, ‘It wasn’t evident from where you were standing that there was a problem with the wire’, was ‘No, not to me.’

…

Remembering that Colin Stevens’ statement of 12 July is not admissible against Nathan, it is not clear why Nathan dismissed any concern expressed by Colin. It may well have been the case that he looked up and saw nothing unusual as Fritz’s evidence suggests may have been the case. The statement in the ambulance by Nathan does not necessarily, of itself, indicate guilt. It may just indicate that Colin made a statement about the powerline. There is a possibility that Colin thought there was a drop and there was not, and that subsequent to 12 July, the power pole then listed. This possibility cannot be reasonably and totally discounted and, therefore, I find it a reasonable possibility. The prosecution case is hampered here by the fact that the timing of the list of the power pole is simply not known, and there is a lack of admissible evidence as to knowledge of a possible manifestation of that problem or risk.

There can be no doubt that Nathan Stevens owed an electrical safety duty. But as to the element that both defendants failed to comply with that duty, I am not satisfied that this element has been proved beyond reasonable doubt and, accordingly, I find both defendants not guilty.

[46]  It is apparent from the reasons given that the Magistrate was ultimately not satisfied beyond reasonable doubt that the respondent had proven the Breach Element of the alleged offence in either case. It is also to be noted that earlier in his reasons, the Magistrate had also stated that he was not satisfied beyond reasonable doubt in the case against Colin Stevens that the respondent had proven the PCBU Element and had thus already failed to prove an essential element of the offence in its case against him. The District Court judge upheld that finding and dismissed the respondent’s appeal in respect of Colin Stevens on that basis.

[47]  With respect to the case against the applicant, on appeal to the District Court the respondent contended, amongst other things, that the Magistrate had erred in finding that the comment made by Colin Stevens on 12 July 2021 was not admissible in the case against the applicant. The District Court judge accepted the Magistrate had erred in that respect, relevantly reasoning:

[56] The comment on 12 July was an obviously important part of the prosecution case. The prosecutor had conceded in closing submissions that the case failed if that evidence was not accepted. It was relevant to the assertion that Nathan Stevens was made aware of the risk and failed in his duty to eliminate or minimise that risk of electrical harm. It was relevant to prove what Colin Stevens shouted at him or in his presence. It was also relevant to the conversation Nathan Stevens had with Mr Fritz in the ambulance, after the incident on 14 July, which amounted to an admission or statement against interest.

[57] There was no dispute that Colin Stevens made a comment on 12 July to the effect that there was an issue with the height of the power line. That evidence was directly admissible against Colin Stevens as a statement against interest; it showed that he appreciated the risk of electrical harm.

[58] As against Nathan Stevens, the basis for admissibility was of the fact that the comment was made in his presence, to gauge Nathan’s state of mind and conduct afterwards, and not as to the truth or accuracy of the comment. The Magistrate reasoned he could not use the comment as being admissible evidence in the case against Nathan Stevens because he did not agree with the comment, or adopt it as being truthful or accurate. Ordinarily, that proposition is undoubtedly correct; a hearsay comment such as this made by a witness or co-defendant, would not be admissible as an admission or statement against interest, unless it was accepted and adopted as being truthful and accurate, by him.

[59] With respect, it seems to me that a confusion about the basis for admissibility has led to an error, compounded by a dispute in the summary hearing about the content of the comment, notwithstanding the acceptance there was a comment made to that effect. The fact that Colin Stevens made a comment about that topic was admissible in the case against Nathan. It did not matter what precisely was said, or whether what was said was accurate, or whether Nathan Stevens agreed with it or not. That is beside the point. The Magistrate accepted the evidence of Mr Fritz that Colin Stevens made the comment and so should have found the fact it was said was admissible against Nathan Stevens.

[60] I am satisfied the fact that Colin Stevens made a comment about the height of the power line on 12 July is admissible in the circumstantial case against Nathan Stevens. Accordingly, there was a basis upon which to assert Nathan Stevens was made aware of the electrical risk. The fact that he disagreed, or did not appreciate there was a risk, is irrelevant. If not, any person who has the duty would escape prosecution or responsibility simply because they claim they didn’t think there was a problem.

[61] The Magistrate correctly determined that it was unknown precisely when the stay wire failed, but should not have found that he could not have regard to the evidence about the comment on 12 July about that, and consequently incorrectly reasoned it could not be shown that Nathan Stevens was alerted to the risk.

[62] In my view, the Magistrate was led into error by the assertion that a conviction of the respondents required proof of knowledge that the stay wire had broken, causing the pole to list, or that the breaking of the stay wire was imminent. That test was impossible. The obligation cast upon a person conducting the business was to ensure electrical safety. Evidence tending to prove the respondents were made aware of the risk and failed to do anything to ensure safety was sufficient.

[63] I am satisfied that upon being alerted to that risk, Nathan Stevens should have acted to ascertain the height of the power line, made sure that the harvester was not being utilised and that workers were not within the exclusion zone, or arranged for the power supplier to de-energise the line. In failing to do any of those things, he has failed to discharge his duty.

[64] There is support on the circumstantial case for the realisation of Nathan’s failure to comply with his duty when he made the comment to Mr Fritz in the ambulance, and perhaps by his silence when his father called out, after the incident. It would be arguable that is also what he meant when he stated in the recorded field interview, ‘I didn’t realise the line was so low’ but I am prepared to defer to the Magistrate’s finding that statement was perhaps equivocal.

[65] I am satisfied the circumstantial facts go to prove guilt to the exclusion of any inferences consistent with innocence.

[66] I am prepared to find the elements of the complaint against Nathan Stevens have been proved beyond reasonable doubt. Accordingly, I find the respondent Nathan Stevens guilty. (emphasis added)

[48]  The District Court judge correctly determined that the evidence of the comment made by Colin Stevens was admissible in the case against the applicant for non-hearsay purposes. It was otherwise inadmissible second-hand hearsay if relied upon as proof of the truth of any fact asserted or implied by Colin Stevens by the making of the comment. 8 In other words, in the case against the applicant it was not admissible to prove the asserted fact that the harvester almost hit the power line, nor to infer that the power line had sagged and was therefore sitting lower than its usual height of 7.8 metres above ground. The evidence was proof of Colin Stevens’ state of mind. Furthermore, in the case against the applicant, the evidence provided proof of what he had been told by Mr Fritz about what Colin Stevens’ had said; and that he was thereby made aware that Colin Stevens thought there was a potential issue with the height of the power line. The sentence in bold in the above excerpt encapsulates the importance of the evidence in the prosecution case.

[49]  Although the respondent accepted during the hearing of the present application that Colin Stevens’ comment could not directly provide evidence that the power line was sagging on 12 July 2021, it seemed to suggest that it might circumstantially prove the same fact. The respondent submitted that the occurrence of the making of the comment on 12 July and the subsequent occurrence of the electrocution incident two days later on 14 July was such an extraordinary coincidence of events that Colin Stevens could not have been mistaken in his observation. Although this argument was raised in response to an argument put by the applicant that there was a reasonable possibility that Colin Stevens may have been mistaken in his observations of the height of the power line that led to his comment on 12 July 2021, the respondent’s submission again impermissibly seeks to rely upon the making of the comment to prove the fact that the power line had actually sagged at that time. I do not accept the evidence can be used in that way or that this form of inferential reasoning may be legitimately employed here to prove such a fact.

[50]  Some of the District Court judge’s reasoning suggests that his Honour did in fact impermissibly treat the evidence of the applicant being told of Colin Stevens’ comment as providing the basis upon which he became aware of a heightened risk posed by the power line sitting at a lower height. If that were so, then his Honour erred. The non-hearsay bases upon which the evidence was admissible did not prove those facts.

[51]  Regardless of any such error, there is a more fundamental point which in my view makes plain that the District Court judge erred, and that the applicant’s conviction cannot stand. Before I come to that, I will deal briefly with the Breach Element.

[52]  I do not consider the District Court judge erred in concluding that upon being made aware of the electrical risk through the comment made by Colin Stevens, the applicant should have acted to ascertain the height of the power line, made sure the harvester was not being utilised and that workers were not within the exclusion zone, or arranged for the power supplier to de-energise the power line; and that by failing to do so he failed to discharge his electrical safety duty.

[53]  It is to be recalled that the duty owed by the applicant under s 30 of the ESA was to ensure his pineapple farm business or undertaking was conducted in a way that was “electrically safe”. That meant he was to ensure that all persons, including his workers, were “free from electrical risk” from the conduct of his business or undertaking. 9 The “electrical risk” was the risk of death, shock or injury caused by electricity or originating from electricity. 10 The applicant would keep persons free from electrical risk if he eliminated electrical risk to them, so far as is “reasonably practicable”, or if it were not reasonably practicable to eliminate electrical risk to persons, if he minimised the risk, so far as is “reasonably practicable”. 11 What was reasonably practicable was that which was “reasonably able to be done” in relation to ensuring electrical safety, taking into account and weighing up all relevant matters. 12

[54]  In my view, irrespective of the actual height of the power line on 12 July 2021, once alerted to the possibility of an issue with its height the applicant should have excluded workers and plant from that part of the farm that was beneath, or three metres either side of, the power line, until at least one of the alleged control measures particularised by the respondent was done. They were steps that were reasonably able to be done by the applicant in the circumstances to ensure any electrical risk was eliminated or minimised, so far as reasonably practicable. Whilst the electrical safety duty imposed on a PCBU by s 30 of the ESA is not absolute, it is one that requires strict observance in order to achieve the stated purpose of the Act, as set out in s 4 of the ESA, of “…eliminating the human cost to individuals, families and the community of death, injury and destruction that can be caused by electricity”. The non-delegable duty of a PCBU under s 30 of the ESA is not expressed in terms of the standard recognised by the common law, to take reasonable care. It is higher. So much is evident from the requirement that a PCBU “must ensure” their business or undertaking is conducted in a way that is electrically safe. 13 Hazards and risks of electrical harm are not necessarily static. The ESA, ESR and the Code of Practice require a PCBU to proactively identify hazards, assess risks and implement, maintain and review control measures. Whether it was true or not, the applicant should have responded to Colin Stevens’ comment by ensuring the relevant exclusion zone was maintained until he did one of the further particularised actions, which were reasonably able to be done, to ensure the electrical safety of workers.

[55]  Although much of the argument below and in this Court was directed at whether the prosecution case was able to prove the Breach Element beyond reasonable doubt, in my opinion the real problem with the respondent’s case against the applicant actually lies with proof of the Exposure Element.

[56]  As observed, the respondent argued in this Court that Colin Stevens’ comment was effectively a warning, which put the applicant on notice of the electrical risk posed by the overhead power line; and that the District Court did not err in so concluding. So much may be accepted. But what was the objective evidence of the risk at that time?

[57]  The overhead power line running across the pineapple farm was a hazard. Because it traversed a property where harvesting work would be done using large machinery, it always posed a risk of electrocution to workers, regardless of its height. However, the objective nature of the risk and the likelihood of it eventuating at any given time depended, amongst other things, on the proximity of any person or plant to the power line. At its usual height of 7.8 metres, the power line sat comfortably outside the three-metre exclusion zone that would ensure that the harvester would not come within an unsafe distance, and that the applicant would therefore be compliant with his electrical safety duty. As the respondent accepted during the hearing, at that height the risk of electrocution posed by the power line was “negligible”. When the power line sagged, and the distance shortened, the risk of electrocution obviously increased. That risk materialised with fatal consequences on 14 July 2021.

[58]  However, in circumstances where the respondent was unable to prove when the power line had actually sagged, the respondent was unable to prove there was any greater objective level of risk posed by the power line at any time before occurrence of the incident on 14 July 2021. Colin Stevens’ comment was not capable of providing evidence of the actual position of the power line on 12 July 2021. It was therefore not capable of providing evidence of any increased objective risk posed by the power line at that time.

[59]  That being so, it seems to me that the evidence adduced by the respondent in the summary hearing before the Magistrate was simply incapable of proving the charge against the applicant beyond reasonable doubt. The Exposure Element required proof of a causal relationship between the applicant’s alleged failure to maintain the three-metre exclusion zone until he actioned either of the alleged control measures particularised; and the risk of death or serious injury by electrocution posed to his workers by the overhead power line between 11 and 14 July 2021. The respondent was required to prove beyond reasonable doubt that the applicant’s failure in that regard was a significant or substantial cause of the workers being exposed to that risk. 14

[60]  In my opinion, the District Court judge could not have been satisfied that the applicant’s failure to do any of those things exposed an individual to a risk of death or serious injury, as required by s 40C of the ESA.

[61]  Because it was not known when the power line sagged to the position it was in when the incident occurred, the prosecution was unable to prove beyond reasonable doubt that the applicant’s failure to ensure the three-metre exclusion zone was maintained until either of the particularised control measures were taken led to the exposure of his workers to the risk of death or serious injury through electrocution by the overhead power line. Even accepting that each of those actions were things he was reasonably able to do to ensure the electrical safety of his workers, if there was no proof of an appreciable objective change in the risk posed by the overhead power line because it had sagged to a lower than usual height, then it would not have mattered whether the applicant actioned the control measures or not. His failure to do them would not have exposed his workers to electrical risk. They were already exposed to such risk, albeit to a negligible degree, when the power line sat at its usual 7.8 metres height. It was only at the point where the height of the power line had actually lowered to a point where the highest point of the harvester would come within the 3-metre exclusion zone, and the objective risk had thereby increased, that it could be said that any failure by the applicant to do that which was particularised in the complaint would have exposed his workers to the risk of death or serious injury by electrocution.

[62]  That is an insurmountable problem for the respondent. Because it could not prove when any such change in height had occurred, the respondent was simply unable to exclude as a reasonable possibility that the power line had dipped to its lowered position at any time up until immediately before the incident on 14 July 2021. That deficiency in proof was a solid obstacle to conviction which could not be cured by the evidence of the applicant being told of Colin Stevens’ comment on 12 July 2021.

[63]  The applicant framed his argument in this Court that the respondent was unable to exclude as a reasonable hypothesis consistent with innocence that the stay wire supporting the SWER power line failed on 14 July 2021, leading to a sudden lowering of the power line just before the harvester came within proximity of it. Whilst he pointed to evidence given by one of the workers, Mr Page, that he had seen a “flash of lightning” just before the incident occurred, as evidence supporting such an inference, in my view it is not necessary for that possibility to be further explored. As the respondent could not prove on its own case when the power line sagged, it always remained a reasonable possibility, unable to be excluded by the evidence adduced by the respondent, that it happened on 14 July 2021 immediately before the incident occurred. For the prosecution’s circumstantial case to succeed, it was required to exclude all reasonable hypotheses consistent with innocence beyond reasonable doubt. 15 By the evidence adduced, it failed to do so.

[64]  In my view the District Court judge did not properly consider whether the Exposure Element had been proven beyond reasonable doubt. In part this is explicable because Colin Stevens’ comment and its relevance to proof of the Breach Element were largely the focus of the appeal from the decision of the Magistrate in the applicant’s case. The parties seemed to have wrongly approached the case as if proof of the Breach Element would axiomatically prove the Exposure Element. As a result, it appears that having determined that the first three offence elements, up to the Breach Element, were proven beyond reasonable doubt, his Honour then simply concluded that it followed the offence was proven beyond reasonable doubt. That was an error. The evidence was not capable of establishing the Exposure Element beyond reasonable doubt. The District Court judge erred in concluding otherwise.

[65]  Ground 1 is established. The District Court judge’s decision to find the applicant guilty of the offence was unreasonable and not supported by the evidence.

…

A link to the full case is here.

1 Nicholson v Stevens [2025] QDC 17.

2 McDonald v Queensland Police Service [2018] 2 Qd R 612 [39]; Sanchez v Cmr of Police (2022) 12 QR 263 [10].

3 McDonald, [39].

4 According to the statement of agreed facts admitted pursuant to s 148A of the Justices Act, the power line was a 12.7kV SWER high voltage overhead power line.

5 This should simply read that the pole on the adjoining property had listed.

6 Vibro-Pile, [3]; [91].

7 It is obvious in context that the word “not” is missing here in the transcript of the Magistrate’s decision.

8 Walton v R (1989) 166 CLR 283 288, 292–293 (Mason CJ); R v Ryan Churchill (pseudonym) (2025) 99 ALJR 719 [46] (Gageler CJ, Gordon, Gleeson, Jagot and Beech-Jones JJ).

9 Section 10(2)(e) ESA.

10 Section 10(1)(a) ESA.

11 Section 10(4) ESA.

12 Section 28 ESA.

13 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 [10] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). Although the Court there was making observations about the nature of an employer’s duty under the Occupational Health and Safety Act 1983 (NSW), they are apposite to describe the nature of the duty under s 30 of the ESA.

14 Paradise Outdoor Building Company Pty Ltd v Steward [2022] QCA 118 [32]–[34].

15 R v Baden-Clay (2016) 258 CLR 308 [46]; citing Barca v R (1975) CLR 133 CLR 82 104.