The Supreme Court of the ACT has recently upheld an appeal by the Commonwealth against its conviction in the long-running prosecution relating to the death of Captain David Wood in Antarctica in 2016.

Captain Wood had been delivering fuel drums to a remote depot on Antarctica’s West Ice Shelf when he fell down a crevasse. He was trapped for hours while his colleague flew back to Davis Station to return with a rescue team. He was recovered by the rescue team but died from hypothermia the following day.

The Commonwealth Director of Public Prosecutions (DPP) filed three charges in the ACT Magistrates Court, alleging the Commonwealth of Australia (being the Department of the Environment and Energy, through its Australian Antarctic Division) failed in its duties under the Work Health and Safety Act (WHS Act).

Three charges were also brought against Captain Wood’s employer, Helicopter Resources Pty Ltd, which was contracted by the Department to support field operations for the Antarctic Division.

What happened in the courts?

The Magistrates Court dismissed the charges against Helicopter Resources but convicted the Commonwealth for breaches, including failure to test and assess for the presence of crevasses.

The matter went on appeal to the Supreme Court, with the Commonwealth seeking its convictions to be set aside. Comcare also appealed against the acquittal of Helicopter Resources.

Importantly, the Supreme Court noted that Comcare had originally pleaded its case in a manner likely to mean it would not succeed. Comcare sought to amend the charge. The Magistrate refused this amendment.

In considering this point, the Supreme Court stated: “In seeking the amendments, the prosecution candidly stated that the amendments would improve its chances of success. I would go further and state that without the amendments, the prosecution was almost doomed to failure.

“By not allowing the amendments, Comcare was obliged to establish a failure on the part of the Commonwealth to have taken all of the measures. There is an added subtlety; the manner in which the Information is styled, not only requires proof of all of the measures, but proof of their compliance in the order in which they are listed (certainly for the first four, arguably for the last two).”

Despite not agreeing to the amendment, the Magistrate still convicted the Commonwealth.

The Supreme Court disagreed with the reasoning of the Magistrate and set aside the convictions.

In essence, the Supreme Court found that it was not reasonable for the Commonwealth to take the first and second identified reasonably practicable steps and, as a result, the convictions were set aside.

The first and second steps were:

1. “The Commonwealth failed to ensure that before workers were required to land a helicopter and/or walk on the ice surface at the deep field fuel cache sites, including the incident site, the sites had been subject to the following testing and assessment to confirm that, so far as was reasonably practicable, there were no crevasses at each site.
2. “Obtaining and analysing publicly available satellite imagery of the site to determine if there was evidence of crevassing and the location of the grounding line (where crevassing is likely to be more prevalent) and, if such analysis indicated that there was likely to be minimal crevassing at that site, proceeding to the next step … ”.

The Supreme Court found that, on the evidence, there was a: “necessity [for the Commonwealth] to repeat the [testing and assessment] measures after a ‘significant weather event’. The evidence suggested that in Antarctica, a significant weather event was commonplace and could in fact occur more than once a day. The repetition of the [testing and assessment] measures, in particular the reference to satellite imaging which had been reviewed very recently, but perhaps was somewhat out of date, could not be seen as reasonably practicable.”

For the same reasons, the Supreme Court rejected Comcare’s appeal against the acquittal of Helicopter Resources.

Why did the prosecution fail?

To a large extent, the prosecution in this case failed because of the way the charges were pleaded. However, importantly, the case also highlights the onus on the prosecutor to prove beyond reasonable doubt that the alleged step that the defendant was required to take to eliminate or minimise the risk of injury was in fact reasonably practicable. In this case, the Court formed the view on appeal that it the Antarctica Division could not reasonably assess the risk of each potential crevasse before the helicopters landed in the manner alleged by the prosecutor.