Guilfoyle v Kouzoukas[2022] QDC 8

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld) (“JA”) against a Magistrate who on 8 July 2021 ordered the complainant to pay the respondent’s costs after an unsuccessful prosecution.
2. [2]
   On 9 December 2021, I allowed the appeal on the grounds that insufficient reasons had been given for this decision. The parties agreed that this Court rehear the matter and this is my decision upon the rehearing.^[1] On such an appeal the judge is required to make his or her own determination of the facts giving due deference and weight to the magistrate’s view.^[2]
3. [3]
   In order to answer the question, it is necessary for me to consider the material which was before the Magistrate.

Charge and the law

4. [4]
   The complaint alleged:

“That on or about 6 February 2017 at Annerley in the State of Queensland the respondent was a person in control of electrical equipment and held a health and safety duty namely a duty pursuant to s 38 of the Electrical Safety Act 2002 to ensure that the electrical equipment was electrically safe and failed to comply with that duty contrary to s 40D of the Electrical Safety Act 2002.”

5. [5]
   Section 40D of the Electrical Safety Act 2002 (Qld) (“ESA”) provides:

“40D Failure to comply with electrical safety duty—category 3

A person commits a category 3 offence if—

1. (a)
   the person has an electrical safety duty; and
2. (b)
   the person fails to comply with that duty.

Maximum penalty—

1. (a)
   for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—500 penalty units; or
2. (b)
   for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1,000 penalty units; or
3. (c)
   for an offence committed by a body corporate—5,000 penalty units.”

6. [6]
   Section 38 of the ESA provides:

“38 Duty of person in control of electrical equipment

3. (1)
   This section applies to a person who is in control of electrical equipment.
4. (2)
   The person must ensure that the electrical equipment is electrically safe.
5. (3)
   Subsection (1) does not apply to the person in control of electrical equipment to the extent that the electrical equipment—

1. (a)
   is located at premises in which the person lives; or
2. (b)
   forms part of the works of an electricity entity.”

7. [7]
   Section 24(1) of the ESA defines “the person in control” of electrical equipment as “the person who controls the electrical equipment” and s 24(6) of the ESA provides “in this section “control”, electrical equipment includes having responsibility for the maintenance and repair of the electrical equipment.”
8. [8]
   Electrical equipment is defined in s 14 of the ESA.
9. [9]
   The primary duty of care is provided for in s 30(1) of the ESA which states “a person conducting a business or undertaking must ensure the person’s business or undertaking is conducted in a way that is electrically safe”.
10. [10]
    In section 10 (2)(a) of the ESA provides “Electrically safe” means “for a person or property that the person or property is free from electrical risk.” Further section 10(4) ESA provides “free from electrical risk” for a person or property means that “electrical risk to the person or property has been eliminated so far as is reasonably practicable”.
11. [11]
    Section 28 of the ESA sets out what is reasonably practicable.

“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—

1. (a)
   the likelihood of the hazard or the risk concerned happening; and
2. (b)
   the degree of harm that might result from the hazard or the risk; and
3. (c)
   what the person concerned knows, or ought reasonably to know, about—

1. (i)
   the hazard or the risk; and
2. (ii)
   ways of eliminating or minimising the risk; and

1. (d)
   the availability and suitability of ways to eliminate or minimise the risk; and
2. (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.”

12. [12]
    Gaudron J in Slivak v Lurgi (Australia) Pty Ltd^[3] noted that three propositions emerge from the decided cases:

    1. (a)
       The phrase “reasonably practicable” is narrower than “physically possible” or “feasible".
    2. (b)
       What is “reasonably practicable” is to be judged on the basis of what was known at the relevant time.
    3. (c)
       To determine what is reasonably practicable it is necessary to balance the likelihood of risk occurring against the cost, time and trouble necessary to avert that risk.   

The trial

13. [13]
    The trial commenced on 1 February 2021. The prosecutor informed the Magistrate that the respondent was the owner of a property in Annerley. He leased out the property but retained control over its electrical equipment. In particular, a blue compressor in the basement of the property. The prosecution alleged that the compressor was not electrically safe. The issue in the trial was whether the electrical equipment was electrically safe.
14. [14]
    A list of admissions was tendered as Exhibit 1. They were that the respondent was the owner of the commercial property. He was the lessor pursuant to the registered lease. The lease was assigned to Zen Morris Propriety Limited in November 2014. The respondent engaged property managers to act as his agent for the management of the property. The basement of the property contained electrical equipment as defined in the ESA s 14. The blue compressor was part of the electrical equipment and was under the accused’s control. The respondent had a duty pursuant to s 38 ESA.
15. [15]
    The prosecution informed the Magistrate that Mr Kevin Sparks, an electrical safety inspector, would give evidence that the compressor was not electrically safe and would give his reasons for this opinion. An interview with the respondent would be played. The investigation was instigated due to a fatality in the basement of a Mr Stephen Viner but because of the nature of the charge it was not alleged that there was a causal link between the offence and the death. Finally, the prosecution would call Professor Chris Andrews, an Associate Professor in Medicine. He was being called at the request of the defence for cross-examination. It was conceded by the respondent that the issue was whether the blue compressor was electrically safe at the time and whether the respondent took all necessary action to ensure it was safe.

Kevin Sparks

16. [16]
    Kevin Sparks gave evidence that he was a principal electrical safety inspector. On 6 February 2017, he became involved in this investigation and attended the property at 36 Palmerston Street, Annerley. There was an extension lead running down the stairwell to a submersible water pump and as he went down the stairs there was a blue coloured refrigeration compressor in the middle of the room. Exhibit 2 was the plan he prepared. He could see wiring coming out of the top of the switchboard running up the wall, across the ceiling towards the blue compressor unit and then down the wall to an isolator switch and a timer which then ran through a conduit to the electrical equipment down to the blue refrigeration unit. The circuit for the blue compressor was in three phases which meant there were three active conductors.^[4] It needed the three to work. For electricity to be in the blue compressor it was necessary for the isolator to be switched on and continuity in the middle fuse but if the contactor was off there would be still live electricity running to the compressor.^[5]
17. [17]
    The witness removed a white plastic cover covering wires running to the compressor and water came out.^[6] He measured the continuity from the switchboard to this apparatus with the isolator on and there was a non-compliant low-test result.^[7] The rules require a minimum of one megohm. It was right on the borderline of where they would disconnect. Any lower it would be considerably dangerous, but the result did not comply with the wiring rules and was a defect that had to be fixed.^[8] He recorded the result in Exhibit 3.
18. [18]
    He tested the interconnection insulation between the basement cold room and the power circuits and found that it did not comply with the wiring rules as it measured point one of a megohm.^[9] This was a fault.^[10]
19. [19]
    He also tested the earth continuity from the main earth at the main switchboard to the metal frame of the blue refrigeration unit and this indicated a loose or bad connection which was a serious defect with the earthing.^[11]
20. [20]
    Also, a post under the white terminal enclosure was not effectively earthed and did not comply with the requirements.^[12] In his opinion this defect had an immediate electrical risk.^[13] In his opinion, there could be a risk of death but it was hard to say without taking measurements but it was a serious risk under their guidelines.^[14]
21. [21]
    He said there was serious risk of injury with the floor being wet as well, i.e., a high risk of electrical shock.^[15] In his opinion, the blue compressor including the white plastic area and the terminal enclosure were not electrically safe and were not free from electrical risk.^[16]
22. [22]
    There were two ways of removing or minimising the risk. Firstly, there was isolation. The switch had to be turned off, locked out, tagged out and isolation proven by a competent person. There is also elimination, which is disconnection, and the wiring had to be stripped out.^[17] Any tagging of the switch doesn’t prevent it being turned on, but it is a warning.^[18] Disconnection would be a better option for removal.^[19]
23. [23]
    In cross-examination, the witness accepted that the isolator switch (which worked) turned off electricity going through the circuit.^[20] He agreed that there might be reasons why the wiring was set up in the manner he saw.^[21] What he referred to as a “fault” meant the insulation was breaking down or there was a leakage to earth.^[22] He agreed that the testing of the insulation of the cold room circuit was borderline.^[23] He agreed that when he was talking about insulation he couldn’t say for certain what the risk was like without measurements.^[24]
24. [24]
    He was then shown some photographs and he agreed that the refrigeration compressor was an old piece of machinery. They looked like old, abandoned refrigeration units and the equipment appeared to be decommissioned and disconnected from the switchboard.^[25] He said there was still a risk of shock path to them.^[26] He didn’t run any testing on the earthing on those pieces of equipment.^[27] With regard to the blue refrigeration unit, he agreed the equipment didn’t appear to be in working order.^[28]
25. [25]
    He agreed that tests he conducted were in accordance with the Australian Standard 3000 of 2007 and that he was assessing things in 2017.^[29] He said it was a very old installation and did not know what it was wired to at the time it was installed as there was no record.
26. [26]
    He agreed that he conducted the verification tests in accordance with the wiring rules (Exhibit 4). He agreed there were different versions of the wiring rules standards.^[30] The witness explained that they try and inspect as per the standard it was wired to. From his knowledge back then two ohms earthing continuity result was a satisfactory test from the main earth to any point on the electrical installation. The one megohm insulation test had not changed too much.^[31] He agreed that the building was old as was the switchboard and, was probably installed when an earlier version of the particular standard was in force.^[32] He agreed that previously rewireable fuses which they saw in the basement were permitted as they act as a protector device for the basement.
27. [27]
    He agreed that the 2007 version of the wiring rules was probably not in force when the basement switchboard was installed. He agreed that you only need to comply with the 2007 standards if there was an alteration or repair to the installation because the standards generally are not retrospective.^[33]
28. [28]
    He agreed that if the basement switchboard had been left in situ and with no work done to it for many years there was no need to install a residual current device or newer technology.^[34] He agreed there was no evidence of sparking or arcing on the switchboard.^[35]
29. [29]
    He also agreed that the testing he conducted was conducted with the power off so there was no electricity flowing through any of the circuits.^[36] He didn’t confirm the continuity of the basement submain fuses to the main switchboard but Hewitt did.^[37] He agreed he didn’t see any of the equipment while they were energised because it wasn’t safe to do so.^[38] Despite this, he was totally satisfied there was continuity and the tests they did measured continuity, and the reading they got was very low so there was negligible resistance.^[39]
30. [30]
    He never saw any evidence that upstream of the basement the electrical circuit had been disconnected.^[40] He agreed the isolator switch worked.^[41] There was no indication that switch had been turned on.^[42] He agreed it was possible for the cold room circuit to be disconnected upstream but still have other circuits running active through the switchboard.^[43]
31. [31]
    He agreed that in order for a person to sustain an electrical shock from the blue refrigeration unit or the white terminal enclosure next to it, a number of circumstances needed to materialise. Firstly, the isolator switch needed to be turned on; the electricity needed to flow from the basement switchboard through the isolator switch down to the refrigeration unit and there needed to be a fault or defect taking electricity from its usual path.^[44] Then the person needs to touch the conductive part of the equipment to receive the shock.^[45]
32. [32]
    The witness said there were pipes running into the water and there could have been a shock from the pipes. He disagreed with the proposition that if the cold room circuit had been disconnected it wouldn’t need a lockable isolator switch on it.^[46] If he’d been told the blue refrigeration unit had been decommissioned and the wires disconnected and it was not going to be used again it wouldn’t necessarily have a lockable isolator switch.^[47] If a competent person stated the system had been disconnected there would be no need to lock the isolator.^[48]
33. [33]
    In re-examination, the witness said the wiring rules required two forms of protection. Firstly, insulation so the wires are always in an enclosure so there were no exposed live conductors and the other form of protection is earthing. It was a dangerous defect for this piece of equipment to be submersed while it was connected to supply or connected to a circuit. The other defect was to do with fault protection or the earthing defect.^[49]
34. [34]
    In decommissioning one would expect the wiring to be removed from the switchboard and that was not the case here.^[50]
35. [35]
    The wiring rules were tendered as Exhibit 4 and the relevant photographs tendered as Exhibit 5.

Ronald Hewitt

36. [36]
    Ronald Hewitt gave evidence that he was also an inspector under the ESA. On 6 February 2017, he went to the premises at 36 Palmerston Street, Annerley and measured the continuity of the submains and submain fuses. He found they were continuous on all three conductors.
37. [37]
    In cross-examination, he agreed that this continuity testing was done when the circuits were deenergised.

Stephen Underwood

38. [38]
    Stephen Underwood, a workplace health and safety inspector, gave evidence of an interview he conducted with the respondent, that was played to the court and tendered as Exhibit 6.
39. [39]
    The respondent told Mr Underwood that at the address there was a catering business kitchen run by Zen Catering. The building was about 50 to 60 years old and he had owned it for about 20 years. He knew the deceased person as he was related to him. The deceased man went around and did little odds and ends for him for example cleaning out gutters. He said he didn’t get many calls from the property managers and he’d never been called in respect of an electrical problem with the property. Asset Management managed the properties for him.
40. [40]
    With respect to the incident on 6 February 2017, back in June there was water in the well. The underground water rises when it rains from the ground up. He had the property for 20 years and in June this was the third time this had happened. The pumps stopped and he gave Steve a ring. He evacuated the water out and told Steve to get some pumps. His advice was to put one pump in the pit and an extra one outside on the concrete. Basically, the water was stormwater and the pump pumped it out. The pumps were plugged into the power point on the wall which was live. Back in the day there were condensers as they use to run the cold room upstairs. When he bought the place they were decommissioned, partly pulled apart and apparently all of the electricity had been disconnected and they were always there. The only thing live down there was the power point. He’d only been downstairs a handful of times in the last 20 years. There was no reason for anybody to go down there. On 6 February the property managers contacted him and said there was water downstairs. So he asked Allen to go and check this and he reported back to him that there was water there and he said, “don’t worry I’ll take care of it I’ve got a pump here I’ll pump it out.” Allen works at the mechanical shop in the carwash area next door. He told Steve there was water down there and asked him to go and investigate it as he’d previously been in the basement. He’d never previously had electrical problems with the basement over the past 20 years. He had replaced the pumps three times perhaps four times. When the property manager told him there was a problem, he acted on it. Over the years a few different electricians had been used. He was never aware of anyone receiving an electrical shock at the property. When he bought the property, the equipment was decommissioned he thought. There were no issues or faults identified with any of the circuits.
41. [41]
    Mr Underwood said that when he saw the basement the water level was between 30 and 50 centimetres.^[51]
42. [42]
    In cross-examination, the witness confirmed he had attended the premises on 6 February 2017 and investigated the death of Mr Viner. He arranged for the electrical safety officer to attend the building and to advise of any faults or issues. He spoke with Mr Sparks who subsequently provided a statement of his findings. During the course of this investigation, he spoke with eight people including representatives of Queensland Fire and Rescue. He was advised that everything had been left in situ and nothing was turned on or off and nothing disconnected. He agreed that representatives from the Brisbane City Council confirmed that plumbing officers attended the premises and that there was no evidence of ingress of water into the basement as a result of a plumbing or sanitary drainage problem.^[52] He agreed that he investigated this incident extensively and prepared an investigation report dated 27 October 2017 which contained his findings.^[53]
43. [43]
    The defence sought to tender the investigation report. The prosecution objected to this. The report ultimately was admitted as Exhibit 7.

Investigation report

44. [44]
    The investigation report found there was insufficient evidence to indicate the respondent or his wife had failed in their duties under the ESA or the Work Health and Safety Act. The report noted that the safety switch was operating correctly, and a cord was unlikely to be a source of the shock path; the submersible pump was unlikely as a source of shock path, as to the double adaptor outlet device, no electric shock path was identified and no electrical shock path was identified from the work light.^[54] In summary there was no clear evidence of a shock path from the equipment supply.
45. [45]
    As to the incident, Mr Viner had been found at about 9am on 6 February 2017 floating on his back in the water. He’d attended the premises to ascertain why a submersible pump had stopped working. There were no witnesses to the incident. Arrangements were made for electrical safety officers to attend the scene and conduct a full investigation of the electrical safety of the building and its equipment. They were tasked to provide advice as to whether there were electrical faults with the equipment and shock paths. The cause of death was not determined by the coroner. The inspector noted that a working safety switch was installed at the time of the incident and the pumps used were under six months old and still under warranty. There had been no previous electrical incidents. A witness did hear a sound and saw sparks coming from a power point where a cord that the deceased was using was plugged in. The cord was tested and had nil issues. No shock path was identified and no fault found in the equipment. It was noted finally that the cause of death had not been determined and there was insufficient evidence to implement a prosecution.
46. [46]
    In further cross-examination with reference to the report, Mr Underwood agreed that under his findings there was a working safety switch installed at the time of the incident and no previous electrical incidents. He said the initial investigation report was conducted by him but he had left workplace health and safety some years prior and there might be other information he wasn’t privy to.^[55] So there was a caveat there could have been other information coming to light at a later stage.
47. [47]
    In re-examination he agreed that the main focus of the investigation was to ascertain the circumstances which caused Mr Viner’s death.^[56]

Professor Andrews

48. [48]
    Professor Christopher Andrews gave evidence that in 2018 he had been approached by Work Health and Safety to provide a report with respect to the death of Mr Viner and potential cause of death. He didn’t find the blue compressor relevant to the death of Mr Viner.^[57]
49. [49]
    In cross-examination the witness conceded he had qualifications as an electrical engineer. With respect to the terms “verified continuity” or ‘verifying continuity” if there are two electrical points in a circuit he is able to measure the resistance between the two points and a low resistance signifies they are connected in some way. This enables him to determine whether the circuit will hold an electrical current. Insulation resistance is that if there are two conductors travelling side by side at different voltages and there’s a requirement, that they do not interfere with each other one needs a substantial resistance between the two conductors so there’s no transfer of current between them. Insulation resistance measures the degree of isolation between those two conductors.^[58]
50. [50]
    As to continuity with any electrical installation there’s an active conductor, a neutral conductor and an earth conductor. Earthing continuity measures the continuity of the earthing continuity between various points of the circuit. A low insulation continuity would indicate there’s a hard well-established continuity between two points. A fault  in the electrical circuit implies there is some form of path that electricity or electric currents can flow on which is unintended.^[59]
51. [51]
    It would be unwise to energise the circuit to do testing as the tester might expose themselves to potential risk. However, energisation may well be required to verify the integrity of particular connections.^[60] Whether or not connections or no connections pose a risk can only be established with energisation.^[61] Measuring at the switchboard with an energised switchboard would let us go as far as knowing what it was connected to that switchboard.^[62] He agreed that conducting de-energised testing doesn’t prove how various electrical circuits are going to behave when electricity is flowing through them.^[63] De-energised testing on the cold room circuit here would not establish completely whether or not electricity can flow through the cold room circuit.^[64] He did not consider insulation tests conducted while an installation is de-energised as adequate for the purpose of determining whether or not electrical equipment and electrical installation in the basement poses an electrical risk.^[65]
52. [52]
    In the absence of energised testing, one could not rule out the possibility that an electrical supply to the cold room had been disconnected or decommissioned upstream.^[66] This is because if energised cables have been disconnected there can be no energising of the whole downstairs circuitry.^[67] The left and middle blocks were not connected to any power.^[68]
53. [53]
    He said that if power was connected to the left hand fuse the supply would not become unstable or overburdened under normal operation.^[69]
54. [54]
    He agreed it was a very old switchboard and agreed it had become mandatory to fit RCDs since the switchboard had been made.^[70] With reference to Exhibit 8, the witness said there was at least two switches that turned the power off.^[71] The witness said it was not a requirement for the respondent to lock off the isolator switch under regulation and it was not necessary at the time. In other words, if the blue refrigeration unit had been decommissioned there’d be no need to lock an isolator switch attached to it.^[72]
55. [55]
    There were a number of reasons to regard the equipment as decommissioned. When he investigated the death, he questioned people closely and was told the equipment in basement had been decommissioned and was informed the isolator switch was in the off position. Also, the fuse which supplied the switch had blown and therefore there would be no current supply to this particular circuit.^[73] In order for someone to sustain a shock from the blue refrigeration unit it would be necessary for the rotary switch to be on and a fault to exist, and finally a person to touch the conductor part of the equipment.^[74] He believed the fuse blew a substantial time before Mr Viner entered the underground area.^[75]
56. [56]
    The prosecutor indicated to the Court the evidence given by Professor Andrews went well beyond what she foresaw and she needed to obtain instructions.
57. [57]
    The defence informed the Court^[76] that when they asked for Professor Andrews to be called, they indicated to the prosecution they would be asking him questions relating to his electrical expertise and he gave evidence in that regard during the inquest and the transcripts were part of the prosecution brief.
58. [58]
    After a 30 minute adjournment the prosecutor re-examined. The witness said that he had visited the location twice, once in early February 2018 and once more recently at the end of 2020.^[77] Both times he visited much of the wiring had been removed. There was certainly wiring on the first visit, but he cannot recall on the second. He didn’t inspect the wiring. With respect to conducting testing in an energised state he would have done this step by step.^[78] The energised testing would not necessarily establish that live or energised electricity would be supplied from one point to another.^[79] It was unlikely there could still be a power supply to the compressor if the isolator was turned on.^[80] His experience of electrical installations involved 400 to 450 electrically injured people.^[81]

Respondent

59. [59]
    The respondent gave evidence that he worked in the automotive industry but cannot undertake any electrical works or testing. He purchased the property in 1994. There were two buildings on the property, one of which houses the kitchen area. There is also a basement on the property. He estimated the buildings had been erected for about 50 to 60 years. Initially, the building was used to export meat overseas and had a cold room. He was told this by the real estate agent. The only purpose of the basement is to have a submersible pump to extract water from underground seepage.^[82] There were decommissioned compressors and wiring in the basement. These compressors and wiring originally were used to operate the cold rooms on the upper level.^[83] When he first purchased the property the real estate agent showed him around and pointed out where the wiring was cut, disconnected and capped off. The same with the piping to the compressors. There were various compressors which had parts missing. They were pulled apart. Not only did the real estate agent tell him this but he had it confirmed thereafter.^[84] The pumps had been replaced about three times.^[85] On one occasion the pump stopped working and the water was about one metre deep which covered the compressors. He entered the water and threw the pumps in to expel the water.^[86] He thought it was safe to walk in there because it had been verified that everything had been decommissioned. In 2017, the basement was only used for the pump to expel water. The only person who could access the basement was him and he always had it locked.
60. [60]
    In 1994 he inspected the basement with the real estate agent Michael Paternis and he was told things had been disconnected. He also arranged for Roloff Schumacher, an electrician, to inspect the area.
61. [61]
    Straight after he bought the property Energex came out to turn on the electricity because it had been switched off. Within a month or two they started renovations and he engaged Mr Schumacher to do some major works at the front and he asked him to confirm whether the basement was safe and decommissioned. He confirmed that was the case.^[87] Mr Schumacher has since passed away. Other electricians had visited the basement to do work there and none had reported any problems.^[88] Mr Con Papademos did some work on flood lights and checks and went to the basement and he never reported anything wrong. Other electricians visited the premises in 1996/1997.^[89] At no stage between his first purchase of the property in 1994 and February 2017 did he make any changes to the basement, the switchboard or the electric circuitry or the blue compressor.^[90] There was no other incident of anyone being electrocuted at the property.^[91]
62. [62]
    In cross-examination, he confirmed he was told by the real estate agent it had been decommissioned. He engaged the electrician Rudy as he wanted peace of mind. When he purchased the building there was no electricity.^[92] He agreed that the equipment was old and he had a duty of care to actually know it had been decommissioned.^[93] He engaged Rudy within two months of purchasing the property.^[94] He accepted he did not tell Mr Underwood in his interview about these electricians.^[95] The reason he didn’t mention them to Mr Underwood is he didn’t ask him the specifics.^[96] Whilst he didn’t look at the switches and the connections he was advised by a qualified electrician that everything was decommissioned and safe.^[97]

Defence address

63. [63]
    The defence in written submissions referred to the evidence and pointed out that what was in dispute was whether the Court could be satisfied beyond reasonable doubt that the blue compressor and the white plastic terminal enclosure were not electrically safe and whether the respondent breached the duty owed under s 38 of the ESA.
64. [64]
    The defence referred to Slivak v Lurgi (Australia) Pty Ltd^[98] on the meaning of what is “reasonably practicable”. It was pointed that reliance on a person with specialist skills or knowledge is a relevant consideration. It was pointed that the onus was on the prosecution to prove the offence and the standard of proof was proof beyond reasonable doubt. It was for the prosecution to prove that the blue compressor posed a risk of electric shock to a person and the precautions identified in the statement of facts and particulars were reasonably practicable and should have been taken by the respondent and the respondent failed to take them.
65. [65]
    As to the first question, it was submitted that the Court could not be satisfied beyond a reasonable doubt that the blue compressor posed a risk of electric shock. The reason for this was the testing by Mr Sparks and Mr Hewitt was de-energised. The defence relied on Professor Andrews’ evidence that energisation verified the integrity of particular connections, and whether they posed a risk could only be established from energisation. He also gave evidence that de-energised testing would not establish whether or not electricity would flow through certain circuits including the cold room circuit. In the absence of energised testing, one could not rule out the possibility that electricity supplied to the cold room circuit had been disconnected or decommissioned behind the switchboard. It was submitted that Professor Andrews’ evidence gave rise to a number of doubts. It was submitted that where neither Mr Sparks nor Mr Hewitt performed any energise testing at the property. It was not possible to resolve these issues.
66. [66]
    It was also emphasised that the wiring to the blue compressor and white plastic terminal enclosure was connected to an isolator switch which was tested and found to be effective. This means when the switch was turned off it removed any electrical risk. At all relevant times the isolator switch had been turned off and there was no indication it had been turned on.
67. [67]
    As to the question of reasonable precautions it was noteworthy that no one had been electrocuted at the property in 23 years nor had there been previous electrical incidents. The likelihood of any risk was lessened by the fact that access to the basement was restricted by a gate locked with a padlock. At all material times prior to February 2017 the respondent believed the basement and the equipment therein was electrically safe and engaged electricians to confirm this.
68. [68]
    As to the cross-examination by the prosecutor of the failure to mention this to the investigator, at paragraph 70 the defence pointed out the respondent was never asked how he knew the equipment in the basement had been decommissioned or who gave him this information.
69. [69]
    In the circumstances, there should be a finding of not guilty.

Prosecution address

70. [70]
    The appellant in its written submissions alleged that the respondent did not ensure the electrical equipment he was in control of was electrically safe in that he failed to ensure the blue compressor was free of electrical risk.
71. [71]
    The prosecution case is that the respondent did nothing to ensure it was safe.
72. [72]
    The appellant relied on the evidence of Mr Sparks. The respondent referred to Professor Andrews’ evidence and criticised it because in only a small proportion of cases he was involved in investigating electrical equipment. It was pointed out that he held no other electrical qualifications other than a Bachelor of Engineering and a Master of Engineering Science.^[99] It was pointed out that the Professor did not inspect the isolator switch accepting he had not inspected the fuse. He admitted he didn’t attend the property until February 2018, one year after the offence date and by the time he had attended much of the wiring had been removed.
73. [73]
    It was submitted that the evidence of Mr Sparks should be preferred over Professor Andrews. Mr Sparks had over 30 years experience and physically attended the premises. It was submitted the test results conducted by Mr Sparks remained unchallenged. It was submitted the faults identified by him represented a risk of death or serious injury as a result of electric shock.
74. [74]
    On the question of whether the respondent discharged his duty, reference made to the respondent’s record of interview and his evidence at trial. It was submitted that his evidence regarding the engagement of electricians should be rejected and should be put to one side. It was also submitted his evidence concerning engaging Mr Schumacher was a lie and was relied on as demonstrating a consciousness of guilt. It was submitted the respondent did nothing with the equipment for 23 years and was aware the basement flooded and knew Mr Viner had access to the basement. It would have been reasonably practicable for him to strip out the wires completely from the compressor. It was submitted the respondent did not ensure the compressor was electrically safe and failed in his duty.

Reasons for decision

75. [75]
    The Magistrate referred to the complaint and the particular sections of the Act. He referred to the background and the various witnesses.
76. [76]
    He then referred to the written submissions. He noted with respect to the difference between Mr Sparks, Mr Hewitt and Professor Andrews said:

“The difficulty with that [the prosecution] submission is it is not supported by clear, cogent or consistent evidence. The Court must be satisfied beyond a reasonable doubt that the prosecution have proved each element of the offence before it could find the respondent guilty. Where such a significant inconsistency exists within the prosecution’s own case and that inconsistency remains an issue after all the evidence is adduced, that conflict must be resolved in favour of the respondent.”

77. [77]
    The Magistrate considered the respondent answered the questions of Mr Underwood in a frank manner. He found the respondent’s oral evidence consistent with the record of interview. There was nothing which suggested any consciousness of guilt on the part of the respondent. The Magistrate accepted his evidence that he did engage electricians to ensure the basement was electrically safe. He was not satisfied beyond reasonable doubt that the complainant had proved the respondent failed to comply with the electrical safety duty under s 40D of the ESA.
78. [78]
    He found the respondent not guilty.

Costs

79. [79]
    After the decision was given directions were given as to the filing of submissions of costs as to costs and the costs argument was heard on 9 July 2021. The respondent sought an order for costs in the order of $95,000. It was submitted that such an award would be just and reasonable because of the special difficulty, complexity and importance of the case.

Respondent’s costs submissions below

80. [80]
    The respondent referred to the various factors mentioned in s 158A(2) of the JA. It was submitted the complainant failed to take appropriate steps to investigate the matter and failed to investigate the offence in a proper way. This was evidenced from the fact that at the hearing there was a conflict in the evidence given by the complainant’s own witnesses namely whether or not the de-energised testing demonstrated the basement area was electrically unsafe. This was a critical part of the complainant’s case. It was pointed out that the charge was dismissed on the basis that the prosecution had failed to prove beyond reasonable doubt the respondent failed to comply with his electrical safety duty. During the investigation he cooperated and voluntarily participated in a record of interview and answered his questions in a frank and forthright manner. At trial he gave evidence that electricians had inspected the basement and told the Court he had not mentioned those matters because he’d not been asked the question. The property was fitted with a door that was locked with a padlock and access was restricted. It was also submitted that an amount exceeding the scale should be awarded.

Appellant’s costs submissions below

81. [81]
    The appellant’s submissions were that the prosecution could not be said to be not brought in good faith and there was no failure to take appropriate steps to investigate the matter. It was pointed out that the respondent took part in a record of interview where he made no reference to a number of matters that were raised in his evidence. The Prosecution had expert evidence which stated the compressor was not electrically safe and there was evidence the respondent had done nothing in 20 years to ensure it was.
82. [82]
    It was not until the trial commenced that the prosecution was aware there was a challenge to the expert evidence of Mr Sparks. There was no information provided to the prosecution which suggested that the expert evidence was to be challenged prior to the trial nor was expert material provided by the defence for the prosecution to consider its position and no submission was received in this regard. As to Professor Andrews, there was a conference with the prosecution and he did not disclose his evidence to the prosecution.
83. [83]
    Ultimately, the respondent was found not guilty for two key reasons:

    1. (a)
       Inconsistency in the prosecution case;
    2. (b)
       The evidence that the respondent was honest and reliable including the fact he had engaged an electrician to ensure the basement was safe.
84. [84]
    Both of these matters were not within the knowledge of the prosecution prior to trial.

Evidence

85. [85]
    Two affidavits of Stewart Boland were relied on by the respondent below. In his first affidavit filed 18 June 2020 he states that the prosecution brief of evidence was delivered to his office on 3 July 2021 on a USB and was voluminous. A copy of the index to the prosecution brief is at pages 11 to 14 of his affidavit. Crucially at page 14 the prosecutor disclosed “email chain between Stephen Reynolds^[100] and Professor Chris Andrews dated 1 January 2020 forwarded to our office in response to enquiries (4 pages).”
86. [86]
    The email exchange is attached to Mr Boland’s second affidavit dated 5 July 2020 together with a report and Professor Andrews’ qualifications.
87. [87]
    In the report^[101] dated 18 February 2018 to Work Health and Safety, Professor Andrews stated there was no evidence to rule in that Mr Viner’s death was caused by electric shock. At page 2 he noted that the machines had not been used for many years, they were not in working order. He had been informed none of the electrical connections were operational.
88. [88]
    Professor Andrews graduated with Honours in Electrical Engineering and a Master of Engineering Science. He was now practising as a medical doctor.    
89. [89]
    In the email to Mr Reynolds dated 27 December 2019^[102]  Professor Andrews noted:

“For example, a non-fatal shock from thigh contact with an old machine is postulated earthing in waters. There does not seem to be account taken of the advice that the electricity to that machine had been disconnected and even if not, a second fault would have to exist in the machine to make it live. I gave this opinion earlier and to check this and the connections to the submersible pump are part of my reasons for revisiting.

To suggest that a switch was turned on and a shock was received and then the switch turned off rather stretches likelihood even if power had not been disconnected. It is hard to postulate any fatal non-electrical event which would have caused death after shock … My memory is that fuse wedges have been removed and that there were exposed terminals at the empty fuse sockets. There are two scenarios to consider. First if the power had been removed to these sockets and I understand this to be the case there would be no risk to anyone standing in water who have touched them. Nonetheless there seems to have crept into the discussion a thought that power had not been fully removed to the socket. In that case there would be a high risk to everyone standing in water and touching the metal teeth on the sockets … Danger of electric shock when a rewireable fuse wedge is inserted to a socket if the person inserting the wedge contacts one of the contact prongs being inserted along with an earth. The design of the rewireable wedge is generally quite robust and steps are taken so this physically cannot occur by its design intent. While it would be cavalier to say this could never occur it is highly unlikely …”

90. [90]
    In my opinion, this ought to have placed the prosecution on notice that Professor Andrews was questioning the possibility that electricity had contributed to the death of Mr Viner. In my opinion, this directly related to any electrical risk involved with the blue compressor. It certainly put the defence on notice and that is no doubt why they conferred with the Professor prior to trial.
91. [91]
    Interestingly, Mr Boland points out in paragraph 24^[103] that the prosecution had written to the Magistrates Court noting that there were to be 18 witnesses called by the prosecution and that the technical evidence of at least two expert/professional witnesses would be lengthy. This must have referred to Mr Sparks and Professor Andrews. The agreed trial length was four days.
92. [92]
    In his second affidavit^[104], Mr Boland responded to the appellant’s submissions on the question of costs. Mr Boland repeated the fact that the prosecution’s brief of evidence was delivered to his office on 3 July 2020 which included a transcript of the evidence given by Mr Reginald Neale, Mr Sparks and Professor Andrews at the inquest. It also included the email chain. He expected the prosecution to call Professor Andrews as a witness at the hearing.
93. [93]
    On 22 January 2021, the prosecution advised that it intended to call only three witnesses not including Professor Andrews.
94. [94]
    On Monday 25 January 2021, the respondent’s counsel, via email, advised the prosecution that the defence required Professor Andrews to be called. Crucially, counsel asked “as you would be aware Professor Andrews has electrical engineering qualifications and I would like to ask him some questions arising from that experience.”
95. [95]
    Mr Boland believes that the prosecution was put on notice about the breadth of Professor Andrews experience for a number of reasons. Firstly,

1. 1.Up until 22 January 2021, prosecution intended to call Professor Andrews as a witness.
2. 2.On 29 January 2021, counsel instructed by the prosecution conferred with Professor Andrews.
3. 3.In the report prepared by Professor Andrews dated 18 February 2018 it was noted that he graduated with Honours in Electrical Engineering and then a Master of Engineering Science and Diploma of Computer Science.
4. 4.Evidence at the coronial inquest confirmed his qualifications.
5. 5.Professor Andrews in the email to Mr Reynolds, Professor Andrews detailed his opinion as to whether the equipment posed a risk of electrocution.

96. [96]
    Mr Boland points out that there were two teleconferences with Professor Andrews and he attended the premises on one occasion. He was paid for his time. At no stage was Professor Andrews told he was not to tell the prosecution he spoken with the respondent’s legal representatives nor was he prohibited from disclosing to the prosecution the nature of his discussions.
97. [97]
    The principal prosecutor with the Office of Work Health and Safety, also swore an affidavit.  In this she confirmed that the brief was delivered to the defence. On 18 August 2020, she spoke with the respondent’s counsel who advised she couldn’t indicate what the issue at the trial was or what would be admitted by the respondent. On 17 September 2020, she received an email from the respondent’s counsel which set out what was in dispute in the trial.
98. [98]
    On 6 November 2020, counsel was engaged by the complainant as counsel for the trial. On 18 January 2021, prosecuting counsel in response to an email enquiry by Ms Riedel emailed her and confirmed that only Mr Morris, Mr Sparks and Mr Underwood were to be called.
99. [99]
    She also confirmed that Ms Riedel on 25 January 2021 wrote to prosecuting counsel asking for Professor Andrews to be called noting that she would like to ask him questions arising from the experience as to his electrical experience.
100. [100]
     There was a conference on 29 January 2021 with prosecuting counsel and Professor Andrews and no disclosures were made by him he had been called by the defence to give evidence or the opinion he would give when called. At no stage had submissions been sent by the respondent nor had there been any notification the respondent had engaged electrical contractors nor as to the content of Professor Andrews’ evidence.
101. [101]
     Oral submissions proceeded before the Magistrate on 9 July 2021. No oral evidence was called.
102. [102]
     The parties repeated these submissions made in writing.

Appellant’s submissions to this Court

103. [103]
     The appellant submits that the Magistrate erred in concluding it was proper to award costs to the respondent. It is alleged the Magistrate failed to take into account relevant circumstances namely:

     1. (a)
        He failed to take into account that the prosecution was brought and continued in good faith;
     2. (b)
        He failed to take into account the respondent did not give notice of the intended expert evidence from Professor Andrews;
     3. (c)
        He failed to take into account that the witness Professor Andrews did not disclose his opinion to the prosecution;
     4. (d)
        He failed to take into account the fact that Professor Andrews had accepted an engagement from the respondent to give a finding or opinion when the witness had already been engaged by the prosecution.
104. [104]
     It is submitted that the Magistrate erred in concluding the matter had not been properly investigated where the respondent had been interviewed prior to charge and failed to disclose his full version which he gave in evidence at the hearing.
105. [105]
     It is submitted that the matter was properly investigated by the taking of witness statements from potential and relevant witnesses and there was careful consideration as to the appropriate charge. Evidence was obtained which supported the charge against the respondent that he had a duty to ensure the blue compressor was electrically safe. It was not a matter where there were no prospects of success particularly with what the prosecution knew prior to the trial.
106. [106]
     It is submitted that by reason of s 148 of the JA, s 590B of the Criminal Code 1899 (Qld) applies and the defence was required to inform the prosecution of the details of Professor Andrews opinion. But irrespective of the application of this section the failure to give advance notice of the expert evidence was a relevant circumstance to be taken into account.
107. [107]
     The appellant accepts there is no property in a witness but there was no breach of any legal professional privilege for Professor Andrews or the defence to disclose to the prosecution the details of his evidence and opinion prior to trial. The prosecution was unaware there would be a challenge to their expert evidence prior to trial.
108. [108]
     As to the respondent’s version, it is submitted that during the interview he did not disclose that electricians had inspected the equipment. This was a relevant circumstance to be taken into account under the section.
109. [109]
     In all of the circumstances, the appeal should be allowed.
110. [110]
     There was also oral argument on the part of the appellant before me. The appellant stressed that costs do not ordinarily follow the event in this sort of case. It was for the respondent to prove the exercise of the discretion.^[105] It is submitted that this was not a proper case to award costs against the prosecution.
111. [111]
     The issue is a narrow one and the respondent was aware of facts nearly fatal to the success of the prosecution but instead of informing the prosecution as to this they chose to proceed to trial and revealed them in evidence. Had these facts been drawn to the prosecution’s attention before trial they would have been considered and the prosecution may not have proceeded. The appellant did not fail to take appropriate steps to investigate this matter. The mere fact of acquittal is not a reason for the exercise of the discretion in the respondent’s favour. The respondent failed to provide exculpatory evidence to the prosecution prior to trial. The appellant at all times acted in good faith in bringing this prosecution and in the circumstances the appeal should succeed.

Respondent’s submissions to this court

112. [112]
     It is submitted the Magistrate did not err in awarding costs in favour of the respondent. It is accepted there is no suggestion made that the prosecution was brought and continued in anything other than good faith. What must be borne in mind though is that is one of but several circumstances to consider under s 158A of the JA. As to the allegation the respondent failed to disclose the evidence of Professor Andrews, the respondent makes the following points:

     1. (a)
        Up until five days before the hearing the respondent believed the appellant would call Professor Andrews as a witness at the trial.
     2. (b)
        When the appellant advised it was not calling Professor Andrews the respondent’s legal representatives wrote to the appellant asking for this to occur and indicating he held electrical qualifications and he would be asked questions arising from that expertise.
     3. (c)
        The appellant was in possession of the email trail to which I have referred to earlier.
     4. (d)
        The witness did not produce an expert report for the respondent.
     5. (e)
        The appellant was on notice as to whether the blue compressor was electrically safe and as to the true outcome of testing on the wires.
113. [113]
     The appellant called Professor Andrews by choice and it could have been refused. It is disputed that a respondent must give advance notice of expert witness topics from the prosecution’s own expert. The appellant’s counsel was granted an adjournment to confer with its experts after Professor Andrews’ cross examination but instead chose to proceed with the hearing. As to any allegation that Professor Andrews failed to disclose in conference the fact he had been engaged by the respondent, the only evidence on this point is a hearsay statement made by the Principal Prosecutor in her affidavit and there is no file note or evidence from the prosecutor as to what was discussed.
114. [114]
     As to the allegation that the respondent did not raise until his trial the fact he had engaged electricians to inspect the equipment, it is pointed out that at the time of the interview he had not been charged. The Magistrate accepted the respondent was frank and cooperative. The fact is he was never specifically asked why he believed the equipment in the basement was electrically safe. It cannot be said he unreasonably declined an opportunity to explain his events.
115. [115]
     In all of the circumstances, the appellant has failed to disclose a palpable error here and the appeal should be dismissed.

Discussion

116. [116]
     After having considered all of the submissions and evidence, I reach the conclusion that the Magistrate was correct in making the order he did and I would make the same order as His Honour for the following reasons.
117. [117]
     Sections 158 and 158A of the JA provide:

“158 Costs on dismissal

3. (1)
   When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the respondent such costs as to them seem just and reasonable.
4. (2)
   When a complaint is before a Magistrates Court which the court has not jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the respondent such costs as to the court seem just and reasonable.

158A Exercise of discretion in relation to an award of costs

3. (1)
   Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a respondent against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.
4. (2)
   In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example—

1. (a)
   whether the proceeding was brought and continued in good faith; and
2. (b)
   whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and
3. (c)
   whether the investigation into the offence was conducted in an appropriate way; and
4. (d)
   whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the respondent; and
5. (e)
   whether the respondent brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
6. (f)
   whether the respondent unreasonably declined an opportunity before a charge was laid—

1. (i)
   to explain the respondent’s version of the events; or
2. (ii)
   to produce evidence likely to exonerate the respondent; and the explanation or evidence could have avoided a prosecution; and

7. (g)
   whether there was a failure to comply with a direction given under section 83A; and
8. (h)
   whether the respondent conducted the defence in a way that prolonged the proceeding unreasonably; and
9. (i)
   whether the respondent was acquitted on a charge, but convicted on another.

118. [118]
     Prior to the introduction of section 158A of the JA the ordinary rule was that an order for costs should be made in favour of a successful defendant.^[106] Section 158A of the JA altered this position and this section limits the exercise of the discretion.^[107] It must be proper to award costs and the circumstances to be considered in determining whether it is proper are listed in section 158A(2) of the JA.
119. [119]
     I first wish to turn to the issue of the respondent conferring with Professor Andrews prior to trial. It must be born in mind that there is no property in a witness.^[108] Indeed in R v R ^[109] it was said the prosecution cannot be prevented from approaching or calling a witness previously consulted by the defence.
120. [120]
     In light of the material disclosed to it by the prosecution the respondent was perfectly entitled to consult Professor Andrews.
121. [121]
     The next issue though is whether the respondent was obliged to disclose Professor Andrews’ opinion to the prosecution. If he was then this would be a relevant consideration against him on the question of costs.
122. [122]
     At common law by reason of the adversarial nature of our system and the requirement for the prosecution to prove its case the prosecution cannot compel an accused person to assist the prosecution’s case.^[110]   
123. [123]
     But a statute may interfere with this general rule.
124. [124]
     In 1996 the Queensland Parliament introduced section 590B of the Criminal Code 1899 (Qld).^[111]  This section provides:

“590B Advance notice of expert evidence

3. (1)
   If an accused person intends to adduce expert evidence in relation to an issue in the person’s trial, the person must—

1. (a)
   as soon as practicable—give the other parties to the trial written notice of the name of the expert, and any finding or opinion he or she proposes to adduce; and
2. (b)
   as soon as practicable before the trial date—give the other parties to the proceeding a copy of the expert report on which the finding or opinion is based.

3. (2)
   The directions judge under section 590AA or trial judge may fix times for compliance with subsection (1).”

125. [125]
     In my view this section does apply to summary prosecutions by reason of section 148 of the JA which provides:

“The practice before justices upon the hearing of a complaint of a simple offence or breach of duty shall, in respect of the examination and cross-examination of witnesses and the right of addressing the justices upon the case in reply or otherwise, be in accordance as nearly as may be with the practice for the time being of the Supreme Court upon the trial of an issue of fact in an action at law.”

126. [126]
     Did section 590B require the defence to disclose the opinion of Professor Andrews to the prosecution? In my view it did not. It is my view that the best purpose of the section is to prevent the prosecution being taken by surprise by a defence expert of which the prosecution is unaware being called at trial.^[112]
127. [127]
     First, I accept that the “adduce” could include cross examination of a witness by the defence. However, the wording of section 590B specifically notes that it is mandatory to give written notice of the name of the expert. This to my mind more supports the contention that the expert referred to in the section is a defence expert.
128. [128]
     Second it regularly happens in criminal trials that the defence cross examines a crown expert at committal and uses that to elicit opinion evidence favourable to the defence at trial. There is no need for written notice to be given by the defence in such a situation.
129. [129]
     Third it also regularly happens in criminal trials that defence counsel confers with the prosecution expert outside the court during the trial before they give evidence (e.g., with pathologists in murder trials). There is no need for the defence to give written notice under the section in that situation.
130. [130]
     Four in this case section 14B (1)(a) and/or (c) of the Acts Interpretation Act 1954 (Qld) apply and this allows me to consider extrinsic evidence on the point.
131. [131]
     Section 590B according to the explanatory notes to the Criminal Law Amendment Bill 1996 was introduced in light of the decision of R v De Voss^[113] for the fair and efficient conduct of criminal proceedings:

“This section will ensure that there will be advanced notice of expert evidence by disclosure of reports on either side.”

132. [132]
     R v De Voss^[114] itself concerned the exchange of psychiatric evidence on the issue of diminished responsibility. At page 7 it was noted:

“It seems unsatisfactory that such reports are not exchanged in advance of the trial, as they must be in some other jurisdictions … Rebuttal evidence is hardly likely to be necessary if any relevant reports are exchanged at a time conveniently in advance of the likely trial date.”

133. [133]
     In R v Goode^[115] the Court of Appeal noted that section 590B was introduced as a legislative response to the remarks in De Voss.
134. [134]
     The present case is not an exchange of expert report case.
135. [135]
     Therefore, for the reasons above the defence did not need to disclose Professor Andrews’ opinion to the prosecution. The fact is the prosecution was already aware of the expert because Professor Andrews was a prosecution witness.
136. [136]
     The other aspect to be mentioned is the prosecution did not object to this evidence on the basis there had been non-compliance with section 590B. Although a failure of counsel to object may not be fatal to the issue being dealt with on appeal it has a bearing on whether the party who failed to object was prejudiced.^[116] The fact is the prosecution was granted an adjournment, was able to obtain instructions, re-examine the witness and make submissions on the evidence. It may also be that the prosecution has waived it right to now object to the evidence on these grounds because it cannot be the position that a party can wait to see the outcome of the case is favourable to him or her before raising the objection.^[117]
137. [137]
     Over and beyond this on my assessment of the evidence, the prosecution was put on notice that Professor Andrews had particular views as to the electrical evidence in this case. The prosecution was in possession of both the report and the email to Mr Reynolds which raised concerns about the electrical issues. One would have thought the Professor would have been asked about his views in light of that material at the conference on 29 January 2021. I do not know what occurred at the conference because of the absence of evidence on this point from the appellant. It can be inferred though that the Professor was not asked about his opinions in light of the surprise expressed by the prosecutor at the trial.   
138. [138]
     In addition, the respondent’s counsel specifically advised that the witness was to be asked about electrical issues at the trial.
139. [139]
     It seems to be an oversight that the prosecutor did not ask questions of Professor Andrews about electrical matters in light of that which was contained in the report, the email trail and that which was contained in the email from the respondent’s counsel.
140. [140]
     But regardless of all of this, the prosecution was apprised of Professor Andrews’ evidence at the end of day one of the trial. It could have decided to discontinue the prosecution at that stage but they chose to proceed with it, noting that no objection was taken to his evidence. I consider this to be a weighty issue on the question of costs.
141. [141]
     As to the contentions concerning the appellant’s evidence, I accept the respondent’s submissions which is consistent with the Magistrate’s finding and I have to give due weight to this finding. The respondent fully cooperated with the investigators. It is noteworthy he was not charged at the time and was being asked to recall matters from many years prior. It was only after the charge that his mind was directed to evidential matters including the fact that electricians had inspected the equipment. I do note that the respondent in the interview at page 30.10 disclosed he had used a few different electricians over the years. He was not asked further about that by the investigator. 
142. [142]
     Another factor to be thrown into the mix was the opinion contained in exhibit 7 that there was insufficient evidence to proceed with the prosecution.
143. [143]
     It may be that the prosecution was initially brought and continued in good faith but I do consider there was a failure though to properly investigate the matter in light of the notice to given to the prosecution about the potential opinion of Professor Andrews.
144. [144]
     Further, there was a failure to take appropriate steps once the prosecution was aware of the evidence of Professor Andrews at the end of day one. When one considers the failure to enquire of Professor Andrews as to his opinion it cannot be said that the entire investigation was conducted appropriately.
145. [145]
     The dismissal was not made on technical grounds and not simply on a finding there was insufficient evidence.
146. [146]
     The respondent fully cooperated in the interview and did not bring any suspicion upon himself by his conduct. He did not unreasonably decline any interview.
147. [147]
     There was no failure to comply with a direction under s 83A and the respondent did not conduct the defence in a way that prolonged the proceeding unreasonably.
148. [148]
     In my view, the balance of the factors leans in favour of the respondent here.
149. [149]
     In all of those circumstances, it is my opinion the respondent has established that this is a proper case where costs should be awarded against the prosecution.
150. [150]
     I am satisfied that the order made by the Magistrate was the correct one.
151. [151]
     Pursuant to s 225(1) of the Justices Act 1886 I confirm the order made by the Magistrate in this matter. I will hear the parties on the question of costs.