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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Ministry of Business, Innovation & Employment v CNE Security Ltd (DC, 14/10/13)

OSH Tracker

Defendant:
CNE Security Ltd
Guard’s death: employer acquitted 
The employer of a security guard who was fatally assaulted at an Auckland construction depot has successfully defended a charge laid under s6 of the HSE Act that it had failed to take all practicable steps to ensure he was not exposed to the risk of harm. 
Charanpreet Dhaliwal died from blunt force trauma to the head on the evening of 17 November 2011 during his first shift working for CNE Security Ltd. (A man was charged with his murder but was acquitted.) 
MBIE alleged CNE Security failed to take two practicable steps: to ensure Dhaliwal had received appropriate induction and site training regarding the site’s history of incidents; and to ensure an effective procedure was in place to monitor its security guards and that all staff were trained in it. However Judge L Tremewan dismissed the charge (Waitakere DC, 14 October 2013). 
In March 2011 Fulton Hogan engaged CNE to provide night security at a site in Henderson which was a base camp or depot for workers engaged on motorway interchange development nearby. The site contained several port-a-coms, a few containers and some construction equipment, and had been broken into at night on a few occasions. 
Dhaliwal had contacted CNE’s director, Cherag Elavia, earlier in November to seek work. The court accepted Elavia’s evidence that CNE only employed experienced and licenced security staff, and that he had checked that Dhaliwal was experienced and was already employed by a large security firm. 
On 16 November a new CNE employee had completed his first shift for the company at the Henderson site. The next day was his birthday and he asked to have the night off if CNE could find someone to replace him. CNE contacted Dhaliwal to offer him the shift, and around 10pm on 17 November he arrived at the site to meet Elavia and the birthday guard. Dhaliwal was briefed by Elavia about the job requirements, including that it was CNE’s policy that guards should walk away from any confrontation and contact CNE or the police immediately. The other man walked around the site with Dhaliwal and showed him the alarm, the boundaries, and the logbook. He texted Dhaliwal’s mobile phone number to CNE’s office manager, handed him the keys, and left. 
At around 3.30am the following morning a Fulton Hogan employee arrived on site and discovered Dhaliwal unresponsive. Half an hour later the office manager, who was on mobile patrol around the city, tried to contact Dhaliwal to check up on him, but being unable to make contact decided to drive to the site. Elavia had also been alerted to an incident on the site and was on his way. Both men were soon on site. The police had already arrived. 
The court found it was not possible for CNE to have eliminated or isolated the significant hazard in question – assault by intruders – so the question was: did the company minimise the risk? 
The court accepted the defence argument that the client, Fulton Hogan, had framed it as a low-risk site by asking for only a static guard on weekday nights. MBIE argued there had been six incidents on the site, three before CNE was appointed and three afterwards, but the court accepted Elavia’s testimony that at the time he knew of only two minor incidents. 
“I find that this site can be properly regarded as a low risk site,” wrote Judge Tremewan. “The fact that Mr Dhaliwal died at the site does not, of itself, make the site high risk. That tragedy may well relate to an event which could aptly be described as random.” 
Industry:
Personal and Other Services
Sub-Industry:
Other Services
Risk:
Violence
Harm:
Death
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 142

Judgment Text

RESERVED DECISION OF JUDGE L TREMEWAN 
Judge L Tremewan
Introduction 
[1]
The defendant, CNE Security Ltd (“CNE”), faces one charge pursuant to ss 6 and 50 of the Health and Safety in Employment Act 1992 (“the Act”) alleging that it failed to take all practicable steps to ensure the safety of an employee while at work, in that it failed to take all practicable steps to ensure he was not exposed to the risk of harm while carrying out security duties at a construction site. 
[2]
The defendant defended the charge. Evidence has therefore been heard at a defended hearing. Following that hearing, the Court has considered post-hearing submissions received. The Court takes this opportunity to acknowledge the assistance of both counsel for the informant (Ms England) and the defendant (Mr Pollak) in the hearing and post-hearing submissions. 
[3]
This case not only has a tragic and unusual background to it, but the factual and legal issues are relatively complex. Clearly the decision reached has turned on the particular combination of facts and issues in this case. 
[4]
On the night of 17 November 2011, Mr Charanpreet Dhaliwal (also known as Mr Chirag Singh) was working for CNE as a static guard at a base camp site for workers engaged on the interchange development at Lincoln and Selwood Roads onto the North Western motorway. In around the early hours of the following morning, 18 November 2011, he died as a result of blunt force head trauma. A third party was charged with murder in relation to Mr Dhaliwal's death. The Court notes, however, that the person charged was subsequently acquitted following a trial by jury. 
[5]
The outcome of these proceedings is not dependent on those other distinct proceedings. 
[6]
The prosecution called four witnesses in this hearing: 
(1)
Dilsher Singh, Office Manager of CNE (at the time of the incident), whose evidence referred to some of the defendant's practices and processes. He also carried out the induction of Mr Vaidyaraman (another CNE employee, and witness in this hearing); 
(2)
Ganesh Vaidyaraman, a CNE employee (at the time of the incident), who showed Mr Dhaliwal around the site on the night of 17 November 2011; 
(3)
Gregory Watts, Executive Officer of the New Zealand Security Association, who was called to give expert evidence on matters relating to the security industry and best practice; 
(4)
Glenda Harris, Health and Safety Inspector (and the informant Inspector in relation to this case). 
[7]
Mr Cherag (Chris) Elavia, the Director and owner of CNE gave evidence for the defence in the hearing. 
Agreed Facts 
[8]
There were agreed facts as between the parties in these proceedings. They include the following: 
(i)
That CNE Security Ltd, a duly incorporated limited liability company, operates as a security business and provides security services including mobile patrols, static security and alarm responses. Mobile patrols involve randomly timed visits to a client's premises within predetermined timeframes. Static security involves on-site guarding of a client's premises. 
(ii)
At the time of this incident CNE employed both permanent and casual staff. 
(iii)
Mr Cherag Elavia is the owner and sole Director of CNE, which he operates from his home. 
(iv)
CNE employed Ganesh Vaidyaraman, Dilsher Singh and Charanpreet Dhaliwal. Mr Vaidyaraman had just commenced work with CNE; his first shift was on 16 November 2011. 
(v)
Mr Dilsher Singh was employed as an Office Manager for CNE in August 2011. About three years prior, he had worked for CNE for a short period as a security guard. 
(vi)
Mr Dhaliwal was employed by CNE on 17 November 2011. 
(vii)
In March 2011, CNE was engaged by Fulton Hogan Ltd (“Fulton Hogan”) to provide security at 2 Selwood Road, Henderson (“the site”). The site was the base camp for workers engaged on the interchange development at Lincoln and Selwood Roads onto the motorway. The site contained port-a-coms, a few containers and various construction equipment. [The Court notes by way of elucidation that Fulton Hogan are specialists in the building and maintaining of transport and civil infrastructure.] 
(viii)
The site had experienced several break-ins by unauthorised persons entering the site at night. 
(ix)
The agreement was for: 
(a)
static security Monday to Friday between the hours of 10.30 pm - 5.30 am; 
(b)
Mobile patrols on Saturday and Sunday; 
(c)
Mobile patrol alarm response. 
(x)
The static security guard was to perform hourly checks of the buildings and gates, with a log to be completed in one of the port-a-coms. 
(xi)
The static security guard had keys to the gate and the port-a-coms (including the cafeteria, which was also where the log book was kept, and the port-a-com containing the alarm). 
(xii)
Fulton Hogan advised Mr Cherag Elavia of the previous incidents on the site. [The Court notes here that this “agreed fact” must be rightly read down to the extent that Mr Elavia's evidence made it clear that he did not in fact receive advice as to all incidents which the informant ultimately alluded to in this regard. In other words, this “agreed fact” is unclear in that it is not explicit as to which incidents are referred to.] 
(xiii)
In November 2011 Mr Dhaliwal contacted Mr Elavia to seek work. Mr Elavia told him he would call if there was any work going. 
(xiv)
On the afternoon of 17 November 2011, Mr Ganesh Vaidyaraman telephoned Mr Elavia asking not to work that night as it was his birthday. Mr Vaidyaraman was due to work at the site that evening. Mr Elavia telephoned Mr Dhaliwal to see if he wanted the job at the site that evening. After accepting, arrangements were made to meet on-site about 10.30 pm. 
(xv)
Later that evening Mr Elavia, Mr Dhaliwal and Mr Vaidyaraman met on-site. 
(xvi)
Mr Vaidyaraman provided the site keys and his high-visibility vest to Mr Dhaliwal. Mr Elavia provided Mr Dhaliwal with a business card containing his 0800 number so he could be contacted throughout the night. After some discussion Mr Elavia left, after which Mr Vaidyaraman showed Mr Dhaliwal around the site. 
(xvii)
Mr Vaidyaraman walked around the site showing Mr Dhaliwal the keys for the gate and the port-a-coms, how to set and unset the alarm, the boundaries, and how to complete the log book. 
(xviii)
Mr Vaidyaraman took Mr Dhaliwal's mobile number to pass onto Mr Dilsher Singh. After further discussion, Mr Vaidyaraman handed Mr Dhaliwal the keys and left the site. That was the last contact anyone from CNE had with Mr Dhaliwal. 
(xix)
At approximately 3.30 am a Fulton Hogan employee arrived on-site and found Mr Dhaliwal. 
(xx)
Mr Dhaliwal died in the early hours of the morning as a result of blunt force head trauma. No alcohol or drugs were detected in his blood. A third party has been charged with his murder and is currently before the Courts. [The Court notes by way of update that at the time that these facts were agreed between counsel, that trial, which duly acquitted the accused charged with murdering Mr Dhaliwal, had not yet been held.] 
(xxi)
The Guard and Patrol Security Services (AS/NZ 4421:2011) standard revised and superseded the previous 1996 standard: Guards and Patrols (AS 4421-1996). 
Summary of Evidence 
[9]
It is convenient for the purposes of this decision to now outline the evidence of Mr Dilsher Singh, Mr Vaidyaraman (both called by the prosecution) and Mr Elavia (for the defence) — as these three witnesses were the only witnesses who were able to give direct evidence of their dealings with Mr Dhaliwal. Thus this provides some relevant factual background. 
[10]
Following this, there is a summary of aspects of the evidence given by Mr Gregory Watts, the Executive Officer of the New Zealand Security Association (“NZSA”), and Glenda Harris, a warranted Health and Safety Inspector for the Labour Group of the Ministry of Business, Innovation and Employment. 
Evidence of Mr Dilsher Singh 
[11]
Mr Dilsher Singh was the Office Manager of CNE at the time of the incident. The prosecution called him to give some evidence as to the defendant's practices and procedures, and describe matters pertaining to the induction of Ganesh Vaidyaraman. 
[12]
After working for CNE, Mr Dilsher Singh had also worked for First Security Services Ltd (previously Chubb Security) (“First Security”) as a patrolman and an area supervisor, before recommencing work for CNE. 
[13]
In light of his monitoring experience, notably at First Security, which also involved use of GPS, Ms England asked Mr Singh how often patrol staff were checked on, to which he replied, “We can check like once in a week or maybe if we've got a problem then we check all (the) entire night what they're doing, so it depends on the workload.” It should be noted that the Court understood the expression “the workload” to refer in this context not only to the other work being undertaken by those staff members but also the nature of the particular site being checked (notably as to its perceived level of risk). 
[14]
Mr Singh returned to work for CNE in around August 2011, as Office Manager. At that time CNE employed three or four staff. 
[15]
Mr Singh was asked about CNE's requirements for inducting new staff. He explained that the “basic requirement” was that if they found any threat then they should not approach the person and needed to “be away from that site”, and if they have a car they should sit in the car and call the Police and the company on the 0800 number, for a patrolman to be dispatched. 
[16]
Mr Singh explained that both First Security and Chris (Mr Elavia) from CNE maintained the same instructions as to these matters. The instructions were not in writing. 
[17]
Mr Singh was asked about the policy of CNE regarding monitoring static guards. He explained that it depended on the site. If the site was not secure or “not that safe” then the patrol guards would undertake welfare checks on the static guards hourly, but if it was not so dangerous, then if there was an issue, the static guard could phone the patrol guard who would then go there. 
[18]
The assessment as to risk of the particular site in this regard was undertaken by Mr Chris Elavia. 
[19]
In his evidence Mr Singh described the site at Selwood Road. It contained port-a-coms, vehicles and sometimes heavy machinery, and containers. The static guard should be keeping a check on the containers, port-a-coms and the Fulton Hogan vehicles. 
[20]
Mr Singh was asked about his knowledge of the history of the site, in terms of unlawful entries or people coming onto the property and taking things. He stated that he was just aware of “some tea and coffee stolen from the site”
[21]
Sometimes Mr Singh would induct new employees for CNE if Mr Elavia was unable to perform this function. On 16 November 2011 he performed this task for Mr Vaidyaraman, who had been employed to undertake static guard duties at the Selwood Road site. 
[22]
Mr Singh explained that he showed Mr Vaidyaraman around the site. This entailed them walking around while Mr Singh showed Mr Vaidyaraman all of the hazards and explained what he needed to do in terms of looking after the containers, port-a-coms and vehicles. He also showed him the alarm panel in case he needed any assistance. He showed him how to press the panic button which alerts the monitoring company so that a patrolman would then be dispatched if needed. 
[23]
Mr Singh explained that the instructions that he gave Mr Vaidyaraman were specific to this site. 
[24]
Mr Singh was asked whether it would have been helpful if he had had the requisite instructions written down, to which he agreed. 
[25]
In terms of site records, he explained that the log book, kept in one of the port-a-coms on-site, was used to record any incidents which occurred and would ensure that information was passed on to those people following and also to Chris (Mr Elavia). 
[26]
On the night of 17 November 2011, Mr Singh was patrolling sites for CNE and responding to any alarm activations. It was a busy night with alarm activations and a number of sites to check. 
[27]
Mr Singh had had Mr Dhaliwal's cellphone number texted to him by Mr Vaidyaraman so as to be able to make contact with him, including in the morning at the end of Mr Dhaliwal's shift to collect the keys. 
[28]
Mr Singh also tried to check on Mr Dhaliwal during the night at around 4.00 am but the phone would revert straight to answer message. As he received no direct response, Mr Singh started to drive to the site to check on Mr Dhaliwal, and while doing so he received a call from Mr Elavia who explained that he was also going to the site (as there had been a reported incident). 
[29]
Mr Singh explained that in terms of welfare checks on guards, the frequency and arrangements depended on the particular circumstances in which they were guarding. For example, CNE had a site in Huntly (Rotowaro) at the time and the guard there was instructed to text hourly to the patrolman as no one was around and the site was more remote. If anything happened the Police also had to be called straightaway. 
[30]
Mr Singh further explained that after the incident concerning Mr Dhaliwal's death, the policy of static guards texting in every hour was instigated. However, he recalled that perhaps there was only the Huntly site remaining at that time and it was this site to which he was referring. He was unable to be sure about this given the passage of time which had passed. He had remained working for CNE for about six months following the incident but had subsequently left. 
Evidence of Ganesh Vaidyaraman 
[31]
Mr Vaidyaraman first worked for CNE on 16 November 2011, prior to which he had been working as a security consultant in relation to alarms. 
[32]
Mr Vaidyaraman's first shift was at the site on Lincoln and Selwood Roads. He arrived at about 10.00 pm, a half-hour before his shift was due to start at 10.30 pm. He was then shown around by Mr Singh. He explained that Mr Singh showed him the perimeters of the site — the whole of which he needed to check. He said that he referred Mr Dhaliwal to what was important, including the containers which involved the machinery, and the specific machines that needed to be looked after. Mr Singh was with him there for about 15 to 20 minutes. 
[33]
Mr Vaidyaraman was instructed by Mr Singh that he was required to perform an hourly patrol check and also to activate and deactivate the alarms. He would sit in the port-a-com where the alarms were installed. He would also enter all the details in the log book every hour, which was in the port-a-com. 
[34]
Mr Vaidyaraman was provided with the gear he needed, such as safety shoes, a safety hat and a security night vest. 
[35]
Mr Vaidyaraman worked until about 6.00 am. However that day was his birthday, and as he preferred not to work that night, he contacted Mr Disher Singh to enquire as to whether he could have the night off. He realised that he would need to return the keys and the security gear to the site. He made an arrangement to come back at 10.00 pm that night to hand these over if a replacement guard could be found. 
[36]
Mr Vaidyaraman accordingly returned to the site at around 10.00 pm. When he arrived he saw Mr Elavia, the owner of CNE, and Mr Charanpreet Dhaliwal. He could see that they were talking to each other. 
[37]
Mr Elavia introduced Mr Vaidyaraman to Mr Dhaliwal and explained that he would be working the shift that night. He instructed Mr Vaidyaraman to show Mr Dhaliwal around and explain to Mr Dhaliwal whatever procedures had been explained to him. He was told to show Mr Dhaliwal what needed to be done and how to do it. 
[38]
Mr Vaidyaraman duly showed Mr Dhaliwal the keys and what they were for, including the gate of the site and the lock for the port-a-com. He gave him the gear, and also handed him the security vest. He showed him around the perimeter and how to do a perimeter check, what the containers had in them and what he needed to do about them. He showed him the alarm, gave him the code for it and explained the panic feature. He also explained the process by which everything had to be recorded in the log book. 
[39]
Mr Vaidyaraman also gave Mr Dhaliwal Mr Dilsher Singh's personal phone number. He also called Mr Disher Singh and gave him Mr Dhaliwal's number. 
[40]
Mr Vaidyaraman continued to work at the site following that night (after Mr Dhaliwal's death). Following that fatality, hourly checks were performed via text to the patrol person working on that night, as instructed by Mr Dilsher Singh. 
[41]
Mr Vaidyaraman explained that Fulton Hogan staff were very frequently at the site — they were there throughout the night but used to leave around 4.30 am. 
[42]
Mr Vaidyaraman was asked how often he was checked on by CNE, to which he stated “quite often”. When asked about his awareness of previous incidents at the site he referred to being told of a burglary of a port-a-com but did not know if it was successful or not. He was unaware of any other incidents. He explained that that would make for a feeling of insecurity (if there were other incidents of concern), however, he went on to comment that he had continued to work at the site even after the death of Mr Dhaliwal because his own personal view was that “it was secure enough”
Evidence of Mr Cherag (Chris) Elavia 
[43]
Mr Elavia has been a security guard for over 18 years and is the owner/director of CNE Security Ltd. His experience has been in various roles including static and patrol guarding, supervisory roles and as an owner/operator of his business. He has worked in the field in Australia as well as in New Zealand. He holds an MBA degree from the University of New England (NSW) and is a member of the Chamber of Commerce. He has worked at a number of large security firms including First Security Services Ltd (formerly Chubb Security Ltd). 
[44]
CNE is a small security business which employs six staff. It provides mobile patrol services and static security at various sites. Because of its small size it does not work on larger security projects such as sporting events or sites that have considerable requirements. 
[45]
Of the three types of services which CNE provides, the most basic is that of the static security guard, which involves providing a presence on a site. The second service CNE provides is patrol guarding, where the guard visits sites and checks on them. The final service provided by CNE is responding to alarm activations. All three types of service were provided by CNE to Fulton Hogan at various times. 
[46]
Mr Elavia described the static guard's role as a “very basic role” where the guard is present for deterrent value to keep unwanted opportunists away. Mr Elavia gave evidence that static guards do not engage with third persons at all and should anything out of the ordinary occur, then the guard should contact him or the mobile patrol guard, or the Police. 
[47]
Neither static nor patrol guards carry weapons or protective equipment such as batons, mace and so on, as this is not permitted by law. Mr Elavia noted that this was very different to Australia where he had worked, where they were permitted to carry side arms. Mr Elavia produced evidence of his Australian security licence and Australian firearm licenses. 
[48]
Mr Elavia also produced evidence of his Identification Card for Chubb Security Ltd (as First Security then was) from the period when he was in the employ of that company, one of the largest security firms in New Zealand and from whom he had received training. He had also been a supervisor at Chubb Security and had received specific training relevant to that role too. He explained that at Chubb Security/First Security there would be inductions at sites which were site specific. 
[49]
Mr Elavia's evidence was that CNE only employed guards who were already experienced, having worked for larger security companies. This also applied to Mr Dhaliwal, whom Mr Elavia maintained had also worked for First Security prior to (and contemporaneously with) his being engaged by Mr Elavia. 
[50]
The Court notes that although there was no direct evidence before it as to Mr Dhaliwal's other employment or qualifications in the security industry, it had Mr Elavia's own evidence as to what his understanding was in that regard, he having made his own enquiries. The prosecution was of course well equipped to make its own enquires of Mr Dhaliwal's previous experience and no challenge was made to Mr Elavia's understanding of the situation. 
[51]
To reiterate, Mr Elavia's evidence made it plain that he only employed experienced guards and that he regarded Mr Elavia as appropriately experienced and qualified to undertake the very basic role in which Mr Elavia had employed him. 
[52]
In early March 2011, CNE was engaged by Fulton Hogan to provide a static guard at a construction site at 2 Selwood Road, Henderson between 10.30 pm to 5.30 am Monday to Sunday, and mobile patrols once on a Saturday and twice on a Sunday. Fulton Hogan did not require the static guards to monitor traffic, check IDs of staff coming in and out, or undertake a number of other functions which they are sometimes required to do. 
[53]
The site was controlled by Fulton Hogan who determined the security arrangements, without input from CNE. It required a single security officer to be on-site and conduct an hourly check of the several port-a-coms, the gate and the completion of the security log book. 
[54]
Mr Elavia was personally very familiar with the site. Although it might be referred to as a construction site, he noted that it was more correctly a base camp for a construction site at the relevant time (it has been very significantly extended since then). It was a development site for the Lincoln Road and Selwood Roads interchange, comprising a flat area of barren land with a semi-hard surface of gravel. The site was open in the sense that there was no secure fence. The fence which existed was a low fence, comprised of three foot highway concrete barriers at the front which could be easily walked over. There were wide gaps between them. 
[55]
There were no trenches, manhole covers, scaffolding or dangerous or potentially hazardous construction or building issues of which CNE or its staff had to be aware. There were no restricted areas on-site. 
[56]
At the end of 2011 there were five or six port-a-com cabins, a couple of containers and several trucks and diggers parked up on-site. 
[57]
The site was relatively busy with construction workers present during the night (although CNE was not required to check on them). There was also a canteen facility and rest rooms present at the site for the use of Fulton Hogan staff. Mr Elavia described there being constant staff movement on-site, with Fulton Hogan staff continuously working and moving in and out of the site. 
[58]
Mr Elavia's evidence was that “by any consideration it was not a site that required significant surveillance” and that he would categorise it as at the very low end of potential risk as opposed to commercial premises or a significant construction site. The port-a-coms did not contain anything of significant value such as computers, money or personal possessions of consequence. Mr Elavia compared the site with some of his other sites where there was a more notable risk of potential thefts of metal, copper, brass and equipment. 
[59]
Mr Elavia presumed that Fulton Hogan had engaged his static guard services because the site was scheduled to grow through 2012. 
[60]
At the same time that CNE had the contract at this site it had a contract to provide services at a mine in Huntly, which was remote and secluded. CNE employees there had a cellphone, a pager, a strobe light (as the site was not well lit) and a medical kit. They were required to report to a mobile patrol guard for a welfare report every hour. That was an alternative and additional means of communication as cellphone reception was not very good at that site. 
[61]
CNE also provided a 24-hour a day alarm response service to the site. The site was alarm monitored by a separate company which would pick up on any alarm activation and then dispatch CNE. This would result in contact being made with any static guard present, by a patrol guard who would remain live by telephone until the static guard left the site or checked (cleared) the site. The patrol guard would then visit the site and reset the alarm, and the monitoring company would be called, the details logged and outcome recorded. 
[62]
Mr Elavia would sometimes check on his staff by way of a surprise check, random telephone call or the sending of a mobile patrol guard. Mr Elavia recalled one time when he had called one of his employees (a Gurwinder Singh) who did not answer his phone. Mr Elavia rushed to the site, however it transpired that Mr Singh had left his phone in his vehicle. 
[63]
The shift on 17 November was a short shift of seven hours (not the usual 12 hours). To reiterate, Mr Elavia did not consider the site to be a problematic site. 
[64]
Mr Elavia gave evidence that Fulton Hogan did not mention to him any specific issues of concern regarding the site when CNE was engaged in March 2011, except that some tea and coffee had been taken in an incident prior their engagement. In a document from Fulton Hogan, this incident was apparently referred to as a break in with jimmy marks on a door. However, the document had not been shown to Mr Elavia prior to these proceedings. 
[65]
Since the time CNE had been engaged there had been two security issues of which Mr Elavia was aware. Neither of them had occurred when a CNE guard was present. Mr Elavia had been verbally informed by Fulton Hogan that there had been an unsuccessful attempt to tow a very large generator away from the site. There had also been an attempt to force a door open and a container had been broken into. This last incident had in fact been detected by a CNE guard shortly before he commenced his shift and it was the guard who reported it to Fulton Hogan. 
[66]
Mr Elavia regarded the incidents as relatively minor compared to (what might occur at) most other sites. He did not regard them as being unusual or out of the ordinary, but that they were matters of which to be aware. None of the CNE staff who worked at the site, including Mr Elavia's brother, reported any significant site issue or problem. 
[67]
Incidents which occurred would be recorded in the log book. CNE would use the log book to show what had been done by them and to report any incidents for the key holder (Fulton Hogan) to follow up on or to take any action. The Court did not have the log book available to it in evidence in this hearing, it apparently being in the custody of the Police. 
[68]
Mr Elavia was asked by his counsel, Mr Pollak, about another reported incident of a truck having been stolen from the site on 19 February 2011. He responded that this matter had never been previously brought to his attention. The first he knew of it was when a report from Fulton Hogan was disclosed in relation to these proceedings. Even then, it was noted that the written report from Fulton Hogan wrongly referred to the year of the incident as being 2010 rather than 2011. 
[69]
Again, it was only when these proceedings were filed that Mr Elavia became aware of another reported incident from the site, of a car having been stolen then abandoned and burnt out in Onehunga. This had not been reported to CNE by Fulton Hogan. 
[70]
Following Mr Dhaliwal's death, in addition to an increased presence by the Police at the site, Mr Elavia also instituted regular welfare reporting and visits. The circumstances of Mr Dhaliwal's death were still being investigated at that time. Mr Elavia was concerned if someone was responsible for Mr Singh's death they could return to the site. 
[71]
In 2012, Fulton Hogan terminated CNE's static guard services at the site. The defence maintains that this was as a result of the site having expanded considerably by that time and different arrangements being warranted. 
[72]
Mr Elavia detailed the circumstances through which he had come to employ Mr Dhaliwal. Mr Dhaliwal had phoned him on a number of occasions seeking work, having obtained Mr Elavia's phone number through a Mr Prem Singh who had himself previously worked for CNE. Mr Elavia checked on Mr Dhaliwal's employment history, as a result of which he understood that Mr Dhaliwal's experience included having worked as a patrol guard, and as a crowd controller during the Rugby World Cup tournament. 

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