AB Oxford Cold Storage Co Pty Ltd v Arnott [2003] VSC 452

AB Oxford Cold Storage Co Pty Ltd v Arnott [2003] VSC 452 - VSC 2003 case summary — Zoe

[84]

"Now, here the Attorney-General signed a consent in these terms: `The Attorney-General of the Commonwealth hereby consents to a prosecution being instituted against Arthur George Berwin for an offence against the Trading with the Enemy Act.' No other section than sec. 3 requires such consent, and the presumption is that the consent was given with reference to sec. 3. No other prosecution or offence or challengeable conduct on the part of Berwin within the purview of the Act is suggested. In short, there is nothing but the present set of circumstances to which, so far as appears, the consent could possibly have reference, and the consent was entrusted to the Crown officer Donohoe actually prosecuting in this particular case. If it is to be presumed that the Attorney-General has done his duty in examining the circumstances of this case, his consent in the terms in which he has given it is sufficient. And that is the conclusion to which I come. But if that is not to be the presumption, if the written consent is to be treated as a memorandum under the Statute of Frauds, it would be disastrous. A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving it to the Crown Solicitor to formulate the charge. If the precise form of the charge were necessary to be stated, then the provisions in the Justices Acts and the Crimes Act permitting amendments and guarding against the old fatalities for variances would be inoperative. If the defence definitely challenges the fact that the Attorney-General has examined the facts of that particular case, the prosecution may be put to prove that he has; but, as I say, no such challenge was made here. The objection was merely as to the form of the documents. Then I see no distinction between this and a consent specifying sec. 3. Section 3 embraces a multiplicity of offences any one of which may have been or may not have been the subject of a consent merely specifying the whole section. In my opinion the protection intended by the sub-section has been fully afforded, and the objection should be overruled."[9]

[86]

"Before the prosecution was instituted, the Attorney-General signed a consent as follows:- `The Attorney-General for the Commonwealth of Australia hereby consents to a prosecution being instituted against Alfred George Berwin of Sydney in the State of New South Wales for an offence against the Trading with the Enemy Act 1914'. It is said that this consent is not sufficiently specific, does not specifically refer to this particular prosecution. It is not pretended that there is any other prosecution to which it could possibly refer. There is only one offence specified in the information, an offence under sec. 3 (see Acts Interpretation Act 1904, sec. 8); and there is no offence mentioned in the Acts that requires the consent of the Attorney-General except an offence against sec. 3. It is quite true that the words in the written consent might also be applicable to some other offence than that specified in the information; but the words are distinctly applicable to that so specified. An indictment of John Smith would not be bad because there are other John Smiths to whom it might refer. A devise in a will of `my farm in the parish of Wycombe' is not void for uncertainty even if the testator had two farms in that parish; and evidence would be admissible to show which farm was referred to. Here there are not two prosecutions of Berwin, and the difficulty of showing which prosecution is referred to does not arise. The words of the Act providing for the consent of the Attorney-General are similar to those found in leases providing for the consent of the landlord to an assignment. If we had before us the words `an assignment of the lease shall not be made without the written consent of the lessor', and if the lessor signed a written consent to `assignment', without restricting it to assignment to any definite person, how could anyone say that there was a breach of the covenant? Inasmuch as the prosecution in this case answers the description of the prosecution to which consent has been given, it is not necessary for the prosecutor to give evidence identifying the former with the latter. It is for the accused to rebut the presumption that the consent refers to this prosecution (Sewell v Evans;[10] Leake on Contracts, 5th ed., p.137). It is for the accused to show that the written consent which on its face, and without any straining of words, can fit this prosecution, does not relate to it (and see R v Metz[11]). Even if there were two prosecutions to which the consent would be equally applicable, evidence would be admissible to show to which the consent is applicable; the consent would not be a bad consent. There would be a sufficient description even if evidence had to be given to show to which prosecution the consent referred (Shardlow v Cotterell;[12] Plant v Bourne[13]). I am clearly of opinion that the objection to the conviction is groundless, and that the rule nisi, so far as it relates to this ground, should be discharged."[14]

[166]

79 In this regard it should be noted that the Magistrate relied upon "the evidence of Mr Hilton as to the identification of their symptoms being caused by carbon monoxide poisoning" and upon the presence of Fleiszig at the time ''when Mr Hilton identified the probable cause of their symptoms"[24]. I am unable to find anywhere in the transcript a statement by Hilton that he did so identify the forklift exhaust emissions as the probable cause of the symptoms, or positively identify their symptoms as being caused by carbon monoxide poisoning. There is no doubt that he raised the issue as a possibility. He had experienced similar "symptoms" as the workers were describing as a result of being exposed to carbon monoxide.[25] However, he gave evidence that his belief was that forklifts equipped with a catalytic converter, if kept in tune and serviced properly, would not create any problem in relation to "carbon monoxide" emissions. My reading of the whole of the transcript does not establish the basis upon which the Magistrate concluded that Hilton "identified the probable cause" of the symptoms of the employees. Accordingly, the conclusion reached by the Magistrate that Fleiszig "shared the views expressed by Hilton" cannot amount to a finding that Fleiszig had a state of mind that the symptoms complained of by the workers were probably caused by carbon monoxide poisoning. The offence alleged by charge 3 against Oxford was that it failed to provide "adequate facilities" in that it failed to "provide any first aid or medical treatment at the workplace to assist its employees who were suffering carbon monoxide poisoning". At the minimum, and irrespective of what view the Magistrate may have had of what knowledge should reasonably have been held by Hilton in all the circumstances, it appears to me that before Fleiszig could be guilty of consenting to the offence there would need to be evidence that he knew or should reasonably have known that the employees were suffering from carbon monoxide poisoning or were probably so suffering.

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