Amended Reasons for Judgment - S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5

INDUSTRIAL LAW - INDUSTRIAL SAFETY, HEALTH AND WELFARE - OTHER STATES AND TERRITORIES

Failure to comply with health and safety duty - requirement for statement of specific offence - requirement for particulars - requirement to state the particular act, matter or thing alleged as the manner in which the offence was committed.

Whether decision of the Court of Summary Jurisdiction gave rise to jurisdictional defect - requirement for valid complaint.

Coroners Act (NT) ss 3, 6, 12, 14, 15, 16(1), 26, 34(1), 35

Local Court (Criminal Procedure) Act (NT)) ss 22A, 55, 181, 182, 183

Work Health and Safety (National Uniform Legislation) Act (NT) ss 19, 30, 32, s 232(1)(b)

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [26], applied.

Australian Securities Commission v Malborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, Broome v Chenoweth (1946) 73 CLR 583, Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, De Romanis v Sibraa [1977] 2 NSWLR 264, Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339, Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157, Director of Public Prosecutions v Poniatowska [2011] HCA 43; (2011) 244 CLR 408, Director of Public Prosecutions Reference No 2 of 2001; Collicoat v Director of Public Prosecutions; Bell v Dawson [2001] VSCA 114; (2001) 4 VR 55, Doja v The Queen (2009) 198 A Crim R 349, Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81WN (Pt 1) (NSW) 286, Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89, John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, Lafitte v Samuels (1972) 3 SASR 1, NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2013] QCA 179; [2014] 2 Qd R 304, R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363, Smith v Moody [1903] 1 KB 56, referred to.

DC Pearce & RS Geddes, Statutory Interpretation in Australia (Eighth Edition, LexisNexis Butterworths, Australia 2014), para [1.13].

First Respondent Solicitor for the Northern Territory

Prosecutions [2016] NTCA 5

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE NORTHERN TERRITORY OF AUSTRALIA

[1] The facts are not in contention.

[2] On 8 February 2012, an incident occurred on a cattle property known as Helen Springs Station. The property was owned by the appellant. A worker, Matthew Arena, was fatally injured during the course of the incident.

[3] On 6 February 2014, the Deputy Coroner of the Northern Territory published Reasons for Decision Not to Hold an Inquest in relation to the death ("the Deputy Coroner's reasons").

[4] On 30 January 2015, the second respondent laid a complaint against the appellant in the Court of Summary Jurisdiction charging that the circumstances concerning the death constituted an offence against s 32 of the Work Health and Safety (National Uniform Legislation) Act (NT) ("WHS Act").

[5] In the ordinary course, proceedings for an offence against the WHS Act are required to be brought within two years after the circumstances said to constitute the offence first come to the notice of the regulator, which in this case was shortly after the occurrence of the incident on 8 February 2012. In laying the complaint outside that period, but within 12 months after the publication of the Deputy Coroner's reasons, the second respondent relies on the statutory limitation period prescribed by s 232(1)(b) of the WHS Act, which provides:

(1) Proceedings for an offence against this Act may be brought within the latest of the following periods to occur:

(b) within 1 year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an offence had been committed against this Act;

[6] The complaint named the appellant and was in the following terms (omitting formal parts):

at Helen Springs in the Northern Territory of Australia,

1. Being a person conducting a business or undertaking and having a health and safety duty, failed to comply with that duty which failure exposed an individual namely, Matthew ARENA, to a risk of death or serious injury.

Contrary to Section 32 of the Work Health and Safety (National Uniform Legislation) Act read with Section 19 of the Work Health and Safety (National Uniform Legislation) Act

[7] The appellant's contentions in this appeal are, in very broad compass, that the criminal proceedings are not maintainable because they were brought out of time and because the complaint is invalid for uncertainty and/or want of particularity.

[8] The complaint frames the offence as a failure to comply with a "health and safety duty" with reference to ss 32 and 19 of the WHS Act.

[9] Section 32 of the WHS Act provides:

32 Failure to comply with health and safety duty - Category 2

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

(a) in the case of 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) - $150 000; or

(b) in the case of 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 - $300 000; or

(c) in the case of an offence committed by a body corporate - $1 500 000.

Strict liability applies to each physical element of this offence - see section 12B.

[10] The term "health and safety duty" is defined relevantly in s 30 of the WHS Act to mean "a duty imposed under Division 2, 3 or 4 of this Part".

[11] Section 19 of the WHS Act, which appears in Division 2, provides, so far as is relevant for these purposes:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a) workers engaged, or caused to be engaged, by the person; and

(b) workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable:

(a) the provision and maintenance of a work environment without risks to health and safety; and

(b) the provision and maintenance of safe plant and structures; and

(c) the provision and maintenance of safe systems of work; and

(d) the safe use, handling and storage of plant, structures and substances; and

(e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and

(f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and

(g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.

[12] On 12 March 2015, the second respondent provided the appellant with a Statement of Particulars of the charge. It is relevant to one aspect of the appellant's contentions in this appeal that those particulars were provided outside the limitation period relied upon by the second respondent, which would have expired on 5 January 2015. The adequacy of those particulars is not at issue in this appeal, and it is unnecessary to reproduce them. So far as it provides some context for the appellant's contention that the complaint itself was inadequately particularised, the further details of the charge provided in the subsequent Statement of Particulars may be summarised as follows:

• (a) the business or undertaking was the operation of the Helen Springs cattle station;
• (b) the worker whose health or safety was endangered was Matthew Joseph Arena, who was employed as a machinery operator by the appellant;
• (c) the relevant risk was of serious injury or death while engaged in manoeuvring a steel pole into a position in which it could be cut to size;
• (d) the failure to ensure the health and safety of the worker was constituted by failing to provide a skid steer loader which was in proper working order;[1] failing to provide (unspecified) plant or equipment which was suitable for the task; failing to provide adequate training to the driver of the skid steer loader; failing to ensure a safe method of work; and/or failing to provide adequate equipment or direction with respect to the use of such equipment; and
• (e) the reasonably practical measures which the appellant should have adopted were maintaining the skid steer loader so that it was fit for the purpose; providing equipment for the transport of the steel pole more suitable than the skid steer loader; providing sufficient training to the driver of the skid steer loader to enable him to operate in a safe manner; ensuring that the lifting and support of the metal pole was done in a safe manner such as by the use of a lifting chain block; and/or ensuring that a process such as "oxy-cutting" was used for cutting the steel pole which did not involve lifting and supporting it.

Proceedings in the Court of Summary Jurisdiction

[13] On 14 August 2015, the first respondent constituting the Court of Summary Jurisdiction delivered Reasons for Decision in relation to the preliminary determination of three procedural issues. The Court of Summary Jurisdiction determined relevantly:

• (a) that the complaint had been laid within the statutory limitation period prescribed by s 232(1)(b) of the WHS Act;

• (b) that the complaint was defective for lack of particularity; and

• (c) that the complaint could be amended pursuant to s 183 of the Justices Act (NT) in order to cure that defect.

[14] Section 183 of the Justices Act (now renamed the Local Court (Criminal Procedure) Act (NT)), provided:

If it appears to the Court before whom any defendant comes or is brought to answer any information or complaint that the information or complaint:

(a) fails to disclose any offence or matter of complaint, or is otherwise defective; and

(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect,

the Court may amend the information or complaint upon such terms as may be just.

[15] By application dated 2 September 2015, the appellant sought judicial review of that determination pursuant to Order 56 of the Rules of the Supreme Court of the Northern Territory.

[16] On 2 November 2015, the Supreme Court held that the application for judicial review should be heard and determined prior to the adjudication by the Court of Summary Jurisdiction of the charge contained in the complaint.

[17] By decision dated 11 January 2016,[2] the Supreme Court determined that:

• (a) the complaint had been laid within the limitation period fixed by s 232(1)(b) of the WHS Act;

• (b) the appellant was entitled to particulars of the specific grounds on which it was alleged to have failed to ensure, so far as was reasonably practicable, the health and safety of the deceased worker;

• (c) a failure to include those particulars in the complaint did not lead to the result that the complaint was invalid, or any finding that it failed to plead the essential legal elements of the relevant offence;

• (d) it was sufficient for those particulars to be provided to the appellant after the expiry of the limitation period fixed by s 232(1)(b) of the WHS Act; and

• (e) the complaint was therefore adequately particularised and did not require amendment pursuant to s 183 of the Justices Act.

[18] It is from that determination that the present appeal is brought.

[19] There are four grounds of appeal set out in the Notice of Appeal dated 8 February 2016, three of which have a number of limbs. Those grounds may be summarised broadly as follows:

• (a) that the Deputy Coroner's reasons did not constitute a "coronial inquiry" in the relevant sense, or one which "ended" on the publication of the Deputy Coroner's reasons, so that s 232(1)(b) of the WHS Act did not operate to extend the limitation period for laying the complaint to a date one year after its publication;[3]

• (b) that the Deputy Coroner's reasons in relation to defective plant and operator experience did not give rise to an appearance that an offence had been committed against the WHS Act, again with the consequence that s 232(1)(b) did not operate to extend the limitation period;[4]

• (c) that the complaint was defective and invalid for failing to specify that the deceased was a worker at the time of the alleged offence as required by s 19(1)(a) of the WHS Act, which defect could not be cured by the attribution to the appellant of knowledge from another source or by the ameliorating effect of ss 22A, 55 and 181 of the Justices Act;[5] and

• (d) that the failure to provide particulars of the specific grounds on which it was alleged that the appellant had failed to ensure the health and safety of the deceased rendered the complaint invalid, and that those particulars could not be provided to the appellant after the expiry of the relevant limitation period.[6]

[20] During the course of the hearing of the appeal, counsel for the appellant abandoned the ground of appeal which contended that it did not appear from the Deputy Coroner's reasons that an offence against the WHS Act had been committed, so as to trigger the commencement of the statutory limitation period prescribed by s 232(1)(b) of the WHS Act.

[21] The remaining three grounds are dealt with in turn below.

The ground in paragraph 2 of the Notice of Appeal: characterisation as a "coronial inquiry" which "ended"

[22] The question raised by the ground appearing in paragraph 2 of the Notice of Appeal is whether on the publication of the Deputy Coroner's reasons "a coronial report was made or a coronial inquiry or inquest ended" within the meaning of s 232(1)(b) of the WHS Act.

[23] During the hearing of the appeal, counsel for the appellant drew attention to the express finding below that the Deputy Coroner's reasons were not a "coronial report" in the relevant sense.[7] The Supreme Court determined that the complaint was laid within time on the alternative basis that the Deputy Coroner's reasons formed part of a "coronial inquiry... [which] ended" on the recording and publication of those reasons on 6 February 2014.[8]

[24] The appellant submitted that, because the second respondent had not filed a Notice of Contention directed to the Supreme Court's finding that the Deputy Coroner's reasons were not a "coronial report", in responding to this ground of appeal the second respondent was precluded from contending that it was. During the hearing of the appeal the second respondent was given leave to advance both arguments in support of the contention that the complaint was laid in time, on condition that the appellant would have opportunity to make further written submissions if necessary.

[25] It is convenient to deal first with the question whether the Deputy Coroner's reasons formed part of a "coronial inquiry or inquest [which] ended" upon the recording and publication of those reasons on 6 February 2014.

[26] The word "inquiry" does not appear in the Coroners Act (NT).

[27] Section 3 of the Coroners Act defines the term "investigation" in the following terms:

[28] The term "inquest" is not separately defined.

[29] The Coroners Act establishes a scheme for investigations and inquests. Section 6 provides that a coroner has jurisdiction to investigate a death or disaster, or to hold an inquest into a death or disaster, in accordance with the Act. So far as deaths are concerned, a coroner has jurisdiction to investigate a death if it appears that it is or may be a reportable death, and must investigate a death that is or may be a reportable death if that death is in fact reported.[9]

[30] Although, as has been seen, the term "investigation" is defined to include an inquest, there are specific provisions dealing with a coroner's jurisdiction to hold an inquest. A coroner is obliged to hold an inquest in certain circumstances that are not presently relevant,[10] and may otherwise hold an inquest as the coroner thinks fit.[11]

[31] A coroner with jurisdiction to hold an inquest into a death may make a decision not to hold such an inquest, and in those circumstances must record the decision in writing, specify reasons for the decision, and notify the senior next of kin of the deceased person.[12] The Deputy Coroner's reasons in relation to the subject incident were for that purpose and in accordance with that provision, and for the additional purpose of making certain obligatory findings (discussed further below). It necessarily follows that the Deputy Coroner's reasons cannot be characterised as an "inquest [which] ended" on the recording and publication of those reasons. That being so, the sole question is whether the Deputy Coroner's reasons formed part of a "coronial inquiry ... [which] ended" on their recording and publication.

[32] Regardless whether the investigation of a death proceeds to an inquest, a coroner is obliged to find, inter alia, the identity of the deceased person, the time and place of death, the cause of death, and any relevant circumstances concerning the death.[13] In accordance with that statutory requirement, the Deputy Coroner's reasons state that she has investigated the death; opine that the holding of an inquest would not elicit any further information not already disclosed by the investigations; and summarise the evidence gathered during the course of the investigation, including the results of the post-mortem examination, the police investigation, the investigation by NT Worksafe, and the expert opinion commissioned during the course of the investigation by NT Worksafe. The Deputy Coroner's reasons conclude with formal findings in relation to the identity of the deceased, the time and place of the death and the formal cause of death. The summary of the evidence, and the conclusions drawn from that evidence, traverses the relevant circumstances concerning the death.

[33] That process would seem to fall quite clearly within the ordinary and natural meaning of the term "inquiry", which includes "an investigation, an examination, esp. an official one; spec. (in full public inquiry) a judicial investigation, held under the auspices of a Government department, into a matter of public concern".[14] It would also seem clear that adopting an ordinary and natural reading of the statutory language, the inquiry, investigation or examination "ended" with the recording and publication of the Deputy Coroner's reasons. Those readings would also be consistent with the scheme established by the Coroners Act, by which an investigation may be a precursor to the conduct of an inquest or it may be all that is required to enable the coroner to make the obligatory findings. In the latter event, the investigation and the coronial process ends upon the recording of those findings and a determination not to hold an inquest.

[34] It follows that the complaint was laid within one year after a coronial inquiry ended, and so within time, unless there is something intrinsic or extrinsic to the legislative scheme which requires a different meaning to be given to the term "inquiry". The appellant identifies two matters which it says compel that result.

[35] The first is that in the legal context the term "inquiry" connotes some form of hearing involving viva voce evidence and the testing of that evidence by cross-examination, rather than a "purely administrative process". That reading is said to find support in the language of s 232(1)(b) of the WHS Act, which speaks of "proceedings at the inquiry".

[36] The second matter put in support of the alternative construction is that the WHS Act forms part of a national uniform legislative scheme and the meaning of the term "inquiry" in that uniform legislation takes its flavour from the usage in coronial legislation in other Australian jurisdictions. The appellant submits that the term "inquiry" is typically used in that legislation to denote the process described as an "inquest" in the Northern Territory coroners legislation and necessarily involves an adversarial hearing.

[37] The difficulty with the first submission is that the terms "inquiry" and "proceedings" are protean in meaning, even in the legal context. Methods of conducting an inquiry for the purpose of arriving at a determination may include: the invitation and receipt of written submissions; the conduct of informal and confidential interviews; the analysis of documentary information, including statements and expert reports; private meetings with witnesses and/or stakeholders; and the use of public and private hearings. Subject to the governing statutory provisions and any requirements of natural justice, each of those methods may constitute an inquiry for the purpose of arriving at a determination; or two or more of those methods may be combined in one "inquiry".

[38] The nature of the coronial process is also relevant to what may comprise an "inquiry" in that context. That process is administrative and inquisitorial in the sense that the coroner responsible for making the findings is in charge of identifying and investigating the issues and the evidence. Although a coroner has a duty to act judicially in making those findings, and may be exercising judicial power, the discharge of the inquisitorial function may not require the adoption of adversarial court-like procedures requiring witnesses, evidence, formal hearings, cross-examination, and appointment of counsel assisting. That is quite clearly the case where findings are made by a coroner without holding an inquest. In other cases, the procedures adopted to arrive at coronial findings will tend to include elements of both adversarial and inquisitorial methods, including the conduct of a public hearing.

[39] Similarly, the potential meaning of the term "proceedings" ranges from any process of a legal nature regardless whether it takes place in a court of law, through to the steps taken in formal court proceedings from commencement to final disposition, including the incidents of a public hearing and the examination of witnesses.[15] Falling somewhere in the middle of that spectrum, the term "proceedings" may be used broadly to denote a method permitted by law in which a judicial officer undertakes an authorised act.[16] That process need not be the conduct of a public hearing which includes the testing of evidence. So, for example, all matters involved in the process of winding up under companies legislation are properly characterised as "proceedings in relation to the winding up", regardless whether they involve an application to or hearing in a court.[17]

[40] There is nothing in the use of the words "inquiry" and "proceedings" in this context which would, without more, exclude the process leading up to and including the recording and publication of the Deputy Coroner's reasons.

[41] So far as the submission based on the national uniform legislation is concerned, the threshold difficulty with acceptance of the appellant's argument is that s 232(1)(b) of the WHS Act uses the term "inquiry" in addition and in contradistinction to "inquest", and its inclusion cannot be treated as superfluous or insignificant. The Coroners Act had been in force for some considerable time before the enactment of the WHS Act, and it may be presumed that the legislature was aware at the time of that enactment of the processes established under the coronial legislation. The only relevant process contemplated by the Coroners Act, apart from an inquest, is the form of investigation and determination which led to the recording and publication of the Deputy Coroner's reasons. It is not possible to give the word "inquiry" its full meaning and effect within the legislative scheme - or any meaning or operation at all - unless it is given application to that process of investigation and determination.

[42] Leaving that difficulty aside, it is correct to say that the courts have evinced a strong desire for uniform legislation to be interpreted uniformly in the various jurisdictions.[18] Of course, it is one thing to say that analogue legislation should be construed consistently in operation, but quite another to say in the absence of any authority establishing an accepted or uniform construction for a particular provision[19] that a word appearing in the provision - in this case "inquiry" - should take its meaning from legislation which does not form part of the uniform scheme - in this case the coroners legislation in other jurisdictions. It may also be noticed in this respect that neither the Explanatory Memorandum for the Model Work Health and Safety Act, nor any other extrinsic materials in relation to the drafting and promulgation of that legislation, suggests that the ambit of the term "inquiry" should be limited in the manner pressed by the appellant.

[43] Even if it was permissible to take into account coronial legislation from other Australian jurisdictions for the purpose of construing s 232(1)(b) of the WHS Act, the term "inquiry" is not used with any uniformity in that legislation.[20] The structure of the New South Wales legislation most closely accords the appellant's contention in this respect. In that scheme an "inquest" is held in relation to a death and an "inquiry" is held concerning a fire or explosion.[21] Both processes fall within the scope of "coronial proceedings", and the machinery provisions make it clear that an inquest or inquiry will ordinarily involve a public hearing, a conditional right to representation to people with a "sufficient interest", and a right of examination and cross-examination.[22] The Australian Capital Territory has a similar scheme.[23]

[44] The scheme established under the South Australian legislation is somewhat different. A Coroner's Court is established as a court of record.[24] The jurisdiction of the court is expressly to hold "inquests" in order to ascertain the cause or circumstances of prescribed events.[25] Inquests are to be open to the public subject to the usual exceptions, and by implication will generally involve the appearance, examination and cross-examination of witnesses.[26] The term "inquiry" is employed quite differently to the term "inquest" to denote the exercise of coercive powers of investigation for the purposes of determining whether or not it is necessary or desirable to hold an inquest, or for the purposes of an inquest.[27] That usage brings it closer to the concept of "investigation" under the Territory legislation than to the concept of an inquest.

[45] The Tasmanian coronial scheme is essentially the same as that in place in the Territory so far as is relevant for these purposes.[28] The Queensland scheme is similar, in that there is provision for an investigation into a reportable death in order to determine whether the holding of an inquest is necessary or whether the coroner is able in the alternative to make the findings in relation to the identity of the deceased and the time, manner and circumstances of the death based on the results of the investigation without need for an inquest.[29]

[46] As is apparent from that survey, the term "inquiry" is not used uniformly, or even typically, in Australian coronial legislation to denote the process described as an "inquest" in the Northern Territory coroners legislation, or to suggest that an inquiry process necessarily involves a public hearing at which evidence is tested in the adversarial manner.

[47] The WHS Act is not the only Territory legislation in which the formulation "inquiry or inquest" appears with reference to the coronial processes.[30] None of that other legislation forms part of a national uniform scheme. That fact tends to undermine the proposition that s 232(1)(b) of the WHS Act adopts the formulation "inquiry or inquest" because it is part of such a scheme, and must therefore be construed with an eye to coronial legislation in other jurisdictions.

[48] It is also instructive to examine the operation of the phrase "inquiry or inquest" as it appears in the Information Act (NT). The relevant provision is directed to exempting the coronial processes from the operation of the access provisions. It would be anomalous to construe that provision such that it exempted the coroner's deliberations and materials in relation to circumstances in which a formal inquest was conducted (including the antecedent investigation), but otherwise laid open those deliberations and materials. In order to achieve its clear purpose, the term "inquiry" as it appears in the Information Act must be given its natural meaning to include investigations and the subsequent process of making findings.[31] For similar reasons, it would be anomalous to construe the term "inquiry" appearing in s 232(1)(b) of the WHS Act such that the limitation period may only run from the delivery of findings dealing with the relevant circumstances concerning a death where those findings have been made following an inquest or similar form of public hearing, and not where those findings have been made following an investigation.

[49] This ground of appeal must be dismissed for those reasons.

[50] That finding makes it unnecessary to determine whether the Deputy Coroner's reasons are properly characterised as "a coronial report" within the meaning of s 232(1)(b) of the WHS Act. It may be noted that the term "report" has a particular usage in the Coroners Act limited to reports to the Attorney-General, the Commissioner of Police and the Director of Public Prosecutions in relation to such matters as injuries sustained in custody[32], issues concerning public health or safety or the administration of justice[33], and the commission of offences in relation to deaths or disasters[34]. However, there would seem to be no logical reason for the legislature to extend the limitation period following reports of that kind but not following "reports" of the kind required under s 34(1) of the Act.

The grounds in paragraphs 4 and 5 of the Notice of Appeal: the distinction between essential legal elements and factual ingredients

[51] The ground contained at paragraph 4 of the Notice of Appeal is that the complaint was defective for failing to specify that the deceased was a "worker" within the meaning of s 19(1)(a) of the WHS Act, which defect could not be cured by the attribution to the appellant of knowledge from another source or by the ameliorating effect of ss 22A, 55 and 181 of the Justices Act.

[52] That ground of appeal may be distinguished from the ground appearing at paragraph 5 of the Notice of Appeal. That ground asserts that the complaint was defective for not providing particulars of the specific basis on which it is alleged that the appellant had failed to ensure the health and safety of the deceased

[53] Both grounds assert invalidity, but on different bases. The former is based on the contention that the complaint does not plead against the appellant all essential elements that constitute the relevant offence; while the latter is based on the contention that the complaint failed to provide particulars of the factual manner in which the health and safety duty was said to be breached.

[54] The common law principles in relation to the requirements for a valid complaint[35] were canvassed by the High Court in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [26] in the following terms (including as footnoted):

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge[36]. In John L Pty Ltd v Attorney-General (NSW) [37], it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed[38]. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet[39]. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence"[40]. These facts need not be as extensive as those which a defendant might obtain on an application for particulars[41]. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions"[42]. McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged"[43].

[55] As is apparent from that passage, a complaint will be invalid at common law[44] unless it adequately specifies: (a) the legal nature of the offence with which the defendant is charged; and (b) the particular act, matter or thing alleged as the manner in which the offence was committed. Those common law requirements are subject to statutory modification. At the time the complaint was laid s 22A of the Justices Act provided:[45]

22A Description of offence in documents under this Act

(1) Any information, complaint, summons, warrant or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.

(2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by any law of the Territory, shall contain a reference to the section of the law of the Territory creating the offence.

(3) After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.

(4) Any information, complaint, summons, warrant or other document to which this section applies, which is in such form as would have been sufficient in law if this section had not come into force, shall, notwithstanding anything contained in this section, continue to be sufficient in law.

[56] Under that provision, the complaint will be sufficient if it contains "a statement of the specific offence with which the accused person is charged", and if it contains "such particulars as are necessary for giving reasonable information as to the nature of the charge". That provision falls to be applied in determining the validity of the complaint in these circumstances, but reflects the common law principles.[46] The requirement for a statement of the "specific offence" replicates the common law requirement that the complaint specify the legal nature of the offence charged. The requirement for the particulars necessary to give "reasonable information as to the nature of the charge" replicates the common law requirement that the complaint specify the manner in which the offence was committed.

[57] What is necessary to satisfy the requirement that the complaint specify the legal nature of the offence charged will vary depending on the manner in which the offence provisions are configured and the statutory language employed in the creation of the offence. What is necessary to satisfy the requirement that the complaint particularise the manner in which the offence was committed will vary depending on the essential factual ingredients of the offence and any features which might call for a more detailed elaboration of those factual ingredients. These may include such matters as a reversal of the onus of proof or provisions which allow a defendant to establish a justification or excuse peculiar to the offence.

Failure to specify that the deceased was a worker at the relevant time

[58] Returning then to the ground in paragraph 4 of the Notice of Appeal, the statement of the specific offence must describe the offence "shortly in ordinary language"; need not "necessarily [state] all the essential elements of the offence"; and must contain a reference to the section creating it.

[59] The basic elements of an offence against s 32 of the WHS Act are that: (a) the person has a health and safety duty; (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. Those basic elements are no doubt comprehended in the complaint as laid. It provides that: (a) the appellant was at the material time "a person conducting a business or undertaking and having a health and safety duty"; (b) the appellant "failed to comply with that duty"; and (c) the "failure exposed an individual namely, Matthew ARENA, to a risk of death or serious injury". The complaint does not expressly identify the deceased's employment relationship with the business or undertaking concerned, or to the appellant.

[60] The requirement that the complaint contain reference to the section of the law creating the offence is sought to be addressed by the passage in the complaint stating:

Contrary to Section 32 of the Work Health and Safety (National Uniform Legislation) Act read with Section 19 of the Work Health and Safety (National Uniform Legislation) Act

[61] Divisions 2, 3 and 4 the WHS Act impose a number of different health and safety duties which may constitute the relevant element of the offence under s 32. Hence, s 32 of the WHS Act creates a multiplicity of potential offences. The offence is created by s 32 of the WHS Act; but because it is the contravention of the relevant health and safety duty which constitutes the offence, when determining the elements of the offence or offences created regard must be had to the terms of the particular duty in question.[47] The specific health and safety duty purportedly asserted on the face of the complaint is that created by s 19 of the WHS Act.

[62] Section 19(1) creates a health and safety duty in respect of workers engaged or caused to be engaged by the appellant, and workers whose activities in carrying out work are influenced or directed by the appellant, while the workers are at work in the appellant's business or undertaking. The subsection is capable only of application to workers.[48]

[63] That is not the only duty created under the terms of s 19 of the WHS Act. Section 19(2) creates a health and safety duty in terms that require the person conducting the business or undertaking to ensure, so far as is reasonably practicable, that the health and safety of "other persons" is not put at risk from work carried out as part of the conduct of the business or undertaking. The subsection is capable only of application to persons other than workers as defined.

[64] It should be noted in this context that the provisions of s 19(3) of the WHS Act are better read as indicating the reach of the instructions contained in ss 19(1) and (2). The provisions of s 19(3) are not properly read as imposing independent and separate obligations, the contravention of any one of which will constitute an offence regardless whether that contravention also breaches the requirement in ss 19(1) or (2) of the WHS Act.[49]

[65] The question posed by the appellant in this ground of appeal is whether the complaint is invalid for failing to assert expressly that the deceased was a worker at the time of the alleged offence. That resolves more precisely to the question whether the complaint needed to specify that the health and safety duty in question was the one arising under s 19(1) rather than s 19(2) of the WHS Act. In the terms of s 22A of the Justices Act, the question is whether the complaint fails to contain "a statement of the specific offence" notwithstanding the statutory proviso that a complaint need not necessarily state all essential elements of the offence.

[66] The sufficiency of the complaint must be determined ex facie by reference to the terms of the charge itself. The provision of other evidentiary material to an accused which might be said to remove what would otherwise be doubt as to the specific offence with which the accused is charged[50] will not cure the defect; although it may assume relevance in determining whether an amendment to the charge should be allowed (discussed further below).[51]

[67] For various reasons, including the undesirability of miscarriages caused by technical objections to matters of form, legislative enactments and amendments over time have permitted initiating criminal process to become more sparing in the information it imparts. That has led in turn to the more frequent exercise of the jurisdiction to permit amendment and order particulars.[52] That approach is reflected in the ameliorating provisions of the Justices Act, and now the Local Court (Criminal Procedure) Act. Those developments notwithstanding, the courts have continued to insist on certain minimum requirements of precision and specificity in criminal pleadings.

[68] Those requirements are designed to ensure that the court knows the offence with which it is required to deal, and that the defendant is provided with the substance of the charge which it is called upon to meet. As Nettle JA observed in Director of Public Prosecutions v Kypri:[53]

A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in the context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.

[69] Those basic requirements are reflected in s 181 of the Justices Act (now replicated in s 181 of the Local Court (Criminal Procedure) Act (NT)), which provides:

1. Form of information or complaint

It shall be sufficient in any information or complaint, if the information or complaint gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged.

[70] That provision operates as a qualification to the requirement in s 22A of the Justices Act that a complaint contain a statement of the specific offence with which the accused person is charged.

[71] The other ameliorating or qualifying provision appears in s 55 of the Justices Act (now replicated in s 55 of the Local Court (Criminal Procedure) Act (NT)), which provides:

1. Description of offence

In any complaint and in any proceedings thereon the description of any offence in the words of the Act creating the offence, or in similar words, shall be sufficient in law.

[72] Generally no difficulty will arise in circumstances where the offence is created by a single provision which contains all the elements of that offence. Different considerations arise where, as here, one provision creates the offence by reference to basic elements, and recourse is required to some other provision or provisions in order to determine the content of one or more of those basic elements.

[73] The Victorian Court of Appeal was considering just such a situation in Director of Public Prosecutions v Kypri.[54] The charge in that case pleaded that the defendant had committed a contravention of s 49(1)(e) of the Road Safety Act 1986. The charge went on to plead in essence that having been required to accompany a member of the police force to a police station to furnish a breath sample under s 55 of the Road Safety Act, the defendant refused to comply with that requirement.

[74] The structure of that legislation was similar to the scheme under consideration here. Section 49(1)(e) created the offence, in providing that a person is guilty of an offence if he or she "refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A)". In much the same way, s 32 of the WHS Act creates an offence by reference to a failure to comply with requirements (various health and safety duties) stipulated elsewhere in the legislation.

[75] Although the requirement "to accompany and furnish"[55] could only arise under s 55(1) or s 55(2) of the Road Safety Act,[56] the charge did not stipulate under which of those provisions the requirement arose. The difference between the two provisions was relatively subtle. Section 55(1) created a requirement "to accompany and furnish" in circumstances where a person underwent a preliminary breath test and either that preliminary test indicated that the person's breath contained alcohol or the person refused or failed to carry out the test in the specified manner. Section 55(2) created a requirement "to accompany and furnish" without undergoing a preliminary breath test in circumstances where a member of the police force reasonably believed a person to be under the influence of alcohol.

[76] Nettle JA described that operation in the following terms:[57]

It being so, the proper characterisation of an act which comprises an offence under s 49(1)(e) is one of a failure to comply with a particular kind of requirement under s 55. It follows that, in order to identify the act which comprises the offence, it is necessary to identify the particular kind of requirement under s 55 with which it is alleged that there was non-compliance. Hence, it is an essential element.

[77] As Tate JA observed in similar terms:[58]

To identify which of the multiple offences created by s 49(1)(e) is alleged to have been committed by a defendant, it is necessary to specify the relevant subsection of s 55 that is the source of the requirement with which the defendant has refused to comply. Identifying the relevant subsection is an essential element of the offence.

[78] The appellant in that matter put the submission that s 27(1) of the Magistrates' Court Act[59] provided that it was sufficient for a charge to describe an offence in the words of the Act by which it is created, or in similar words, and that the charge satisfied that requirement. Nettle JA dealt with that submission in the following terms:[60]

... because s 49(1)(e) operates in an ambulatory fashion, creating offences by reference to contraventions of obligations otherwise appearing in several different subsections of the Act, it is semantically inapt to speak of something as framed in terms "similar" to s 49(1)(e) unless it specifically identifies the particular obligation which is alleged to have been breached. Furthermore, and perhaps for that reason, it has been held that a provision like s 27 has no application in relation to an ambulatory provision like s 49(1)(e).

[79] The same conclusion should be drawn in relation to the operation of s 55 of the Justices Act in this case.

[80] The Court concluded that "[t]he charge failed to specify the precise subsection of s 55 that was relevant to the commission of the offence".[61] This was because ss 55(1) and (2) revealed differences in the context in which the requirement "to accompany and furnish" arose. The charge as pleaded was not sufficient to disclose the nature of the offence alleged. In making that finding, the Court was at pains to point out that the requirement was only that the charge be expressed in a way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in the context.[62]

[81] As Nettle JA observed:[63]

Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the subsection of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.

[82] What this means is that a failure to make specific reference to the particular subsection of s 55 would not be fatal if the charge was otherwise worded so as to make it plain which subsection was being invoked. So, for example, a reference in the charge to the fact that the defendant had undergone a preliminary breath test would suffice in context to identify s 55(1) as the provision said to be breached. Similarly, the incorporation of a fact into the charge that the accused had refused or failed to carry out a breath test would also be a fact which identified the relevant subsection. There was no such wording in the charge under consideration, and nor is there in the complaint in this case.

[83] The Queensland Court of Appeal had occasion to consider a similar question in Harrison v President of the Industrial Court of Queensland & Ors.[64] The complaint alleged relevantly that the operator of a mine had failed to satisfy health and safety obligations imposed by ss 36 and 38 of the Queensland mining safety legislation, contrary to s 31 of that legislation. The operation of that legislation was similar to that considered in Kypri and under consideration here.

[84] Section 31 created the generic offence of failing to discharge a health and safety obligation. The legislation then stipulated a range of different health and safety obligations. Amongst those, s 36 imposed a number of different obligations on a worker or other person at a mine, including such matters as complying with safety and health management systems and giving information in relation to protection from risk. Section 38 imposed a number of different obligations on an operator of a mine, including such matters as providing a safe place of work and safe plant, and appointing site executives to develop and implement health and safety management systems.

[85] The Industrial Court below had found that the complaint was defective for failing to identify the particular obligations under ss 36 and 38 alleged to have been breached. The discussion in the Court of Appeal proceeded on that assumption, and was directed principally to the question of whether the defect was capable of amendment (discussed further below). However, in the course of that discussion the Court of Appeal did make some observations concerning how the complaint should properly have been framed.[65] They included:

[121] I return to the complaint against the fourth respondent. The charge alleged a failure to discharge the safety and health obligations under ss 36 and 38 of the Act. It is convenient to leave s 36 aside to reduce the scope of the analysis necessary. However, s 38 alone contains no fewer than five or six obligations, or sets of obligations. On the proper construction of s 38, a contravention of any one of those obligations would be an offence.

[122] The charge does not identify which of those obligations the complaint alleges was breached. Instead, it generally refers to "the obligations". In part, common sense dictates that not all of the obligations under s 38 can have been intended. For example, the obligation under s 38(1)(c) is to appoint a site senior executive for the mine. No fact alleged in the particulars suggest the second respondent was not in truth the site senior executive, and the second respondent was charged as the site senior executive over the same offence as the fourth respondent.

[123] Which of the obligations did the complainant intend to allege were breached? For example, was it the obligation under s 38(1)(a) to ensure the risk to workers while at the operator's mine is at an acceptable level, including, for example, by providing a safe place of work and safe plant; or maintaining plant in a safe state? Paragraph 8(a) of the particulars would make it seem so, but it is not clear.

[86] As is apparent from that extract, the complaint in that case contained extensive particulars of the manner in which the offences were alleged to have been committed. That particularisation was inadequate where it left uncertain the identification of the specific offence charged.

[87] The incorporation into this complaint of the formulation that the "failure exposed an individual namely, Matthew ARENA, to a risk of death or serious injury" was insufficient to make it plain which subsection was being invoked. On an ex facie assessment, as must be conducted for these purposes, that formulation added nothing to the complaint beyond stating that the breach exposed an individual to a risk of death or serious injury or illness. It did not identify whether the duty in question was that created by s 19(1) for s 19(2) of the WHS Act. From the perspective of the judicial officer required to deal with the complaint, the identification of the individual did not assist in that enquiry. From the perspective of the appellant, it was not required to assume that the intention of the prosecutor was to bring the charge under s 19(1) of the WHS Act due to an imputed knowledge of the individual's employment status.

[88] The contents of the complaint as originally framed are not sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, and fail to provide "a statement of the specific offence with which the accused person is charged" as required by s 22A of the Justices Act. That particular defect was not obviated or ameliorated by the provisions of ss 55 or 181 of the Justices Act.

[89] For reasons which are discussed further below, a defect of that sort in the statement of the specific offence is not necessarily fatal in circumstances where the governing statute confers a power of amendment. Before turning to consider the question of amendment, it is convenient first to consider the further contention that the complaint was also defective for lack of particularity.

[90] Paragraph 5 of the Notice of Appeal contends that the failure to provide particulars of the specific grounds on which it is alleged the appellant failed to ensure the health and safety of the deceased renders the complaint invalid, and that the invalidity cannot be cured by the provision of particulars after the expiry of the relevant limitation period.

[91] As has been seen, the statutory requirement under s 22A of the Justices Act is for the provision of "such particulars as are necessary for giving reasonable information as to the nature of the charge". What that requires in the subject case is an adequate statement of the factual manner in which the defendant's acts or omissions are alleged to constitute the offence. As Bray CJ observed obiter in Lafitte v Samuels:[66]

Section 22A(1) requires a statement of the specific offence charged, with such particulars as are necessary for giving reasonable information as to the nature of the charge. "Nature" here, it seems to me, can hardly mean the legal nature of the charge which is covered by the words relating to the specific offence. It seems to me more likely that it means the factual nature of the charge. If so, reasonable information has to be given in the complaint and the lack of sufficient particulars would then be a defect in substance within the meaning of s 182, in which case the complaint should have been dismissed under that section, unless amended [pursuant to s 183], if it appeared to the trial Court, or if it appears to us on appeal, that the appellant had been prejudiced by the defect.

[92] The common law requirement is that the complaint must identify the essential factual ingredients of the actual offence. There is no material difference in application between the statutory statement and the common law requirement.

[93] It should be noted at the outset that s 55 of the Justices Act (now replicated in s 55 of the Local Court (Criminal Procedure) Act (NT)), does not abrogate that requirement. In both its iterations s 55 provides:

1. Description of offence

In any complaint and in any proceedings thereon the description of any offence in the words of the Act creating the offence, or in similar words, shall be sufficient in law.

[94] The provision is in terms similar to s 11 of the Criminal Procedure Act 1986 (NSW) and the cognate provision considered by the High Court of England and Wales in Smith v Moody.[67] The preponderance of judicial opinion is that a provision of that nature "does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions".[68] To put the matter in the terms of s 22A of the Justices Act, while a description of the offence in accordance with s 55 of the Justices Act may be sufficient to provide "a statement of the specific offence with which the accused person is charged", it will not necessarily satisfy the requirement for "such particulars as are necessary for giving reasonable information as to the nature of the charge".

[95] The obligation to specify the time, place and manner of the defendant's acts or omissions is a qualified one. At common law, the requirement is only that the complaint "condescend to identifying the essential factual ingredients of the actual offence".[69] There is no "technical verbal formula" which may be applied to determine whether the essential factual ingredients of the offence are sufficiently identified.[70]

[96] Where the offence charged consists, in its terms, of a specific act or omission on the part of the offender, such as a driver of a vehicle failing to stop at the scene of an incident that results in the death of a person, time and place may be the only further factual ingredients of the offence which must be particularised in the complaint. In other cases, particulars beyond time, place and a statement of the act or omission in terms of the statutory language will be required. It is said that particulars will nearly always be necessary in instances of a course of behaviour being in dispute, rather than a single act.[71] A complaint alleging a false document or utterance should specify the particulars in which it was false.[72] Where an assault is alleged, the nature of the assault must be particularised in terms of whether it involved a kick, punch, threat or other action.[73]

[97] A distinction may also be drawn between the provision of "fair information and reasonable particularity as to the nature of the offence charged"[74], and all details a defendant may require on an application for particulars sufficient to enable the preparation of his or her defence. The former requirement reflects the language employed in s 22A of the Justices Act and describes what is necessary for the purpose of affording the accused reasonable information concerning the nature of the charge so as to validate the complaint at the initiating stage. The latter requirement is for the purpose of providing a defendant with such information as is necessary to prepare the defence and to know sufficiently for that purpose the case to be met. They are matters concerning the conduct of the hearing rather than going to the sufficiency of the complaint.[75]

[98] For reasons to do with local practice, the question of the adequacy of particulars provided in a complaint rarely arises in the Territory context. When a police complaint is provided to the defendant - or the information where the offence is charged by that process - it will almost invariably be accompanied by a document styled as a "Statement of Facts" or "Précis". That document provides details of the events and transactions which are said to constitute the commission of the offence and the circumstances relevant to that commission. The content of the document is typically such that it will satisfy both the requirement for the provision of reasonable particularity as to the nature of the offence charged and the requirement for the particulars necessary for the preparation of the defence.[76] As is apparent from the preceding discussion concerning the coronial process, this is not a matter which proceeded by way of the ordinary police complaint processes.

[99] Where, as in this case, a criminal offence is created by reference to a duty to ensure so far as is reasonably practicable an outcome cast in general terms, the contravention of that statutory command can only be constituted by a state of affairs brought about as the result of an act or omission or a number of acts or omissions by the defendant.[77] The statutory requirement for particulars is that the complaint provide "reasonable information as to the nature of the charge". That requirement will extend to the identification of the particular acts or omissions giving rise to the state of affairs constituting the contravention. In fact, a failure to allege in the complaint the act or omission said to constitute the offence may result in a conviction for which there was no jurisdiction.[78]

[100] That requirement is not obviated simply because the legislation does not cast an onus on the defendant to establish particular excuses or justifications provided under the statutory scheme.[79] In either case the defendant must engage on the question of the existence or otherwise of the asserted act(s) or omission(s) and the question of reasonable practicability.

[101] It may be accepted that only the essential factual ingredients need be incorporated into the complaint. It may also be accepted that there is a distinction between particulars at the initiating stage and particulars necessary for the conduct of the hearing. Even allowing for those qualifications and distinctions, the terms of the complaint in this case do nothing more than particularise the time and place of the alleged offending and then replicate the words of that part of s 32 of the WHS Act which creates the offence, and make bald reference to s 19 of the WHS Act. Those terms go no way towards describing the act or omission said to constitute the relevant failure, the factual matters constituting the relevant risk, or the state of affairs the appellant is said to have failed to ensure in terms similar to the non-exhaustive formulations in subs 19(3) of the WHS Act. The complaint makes no attempt to identify what reasonably practicable measures the appellant could have taken in the circumstances to ensure the health and safety of the deceased.

[102] For those reasons, the complaint does not satisfy the requirement for particularity imposed by s 22A of the Justices Act. Nor was the defect obviated or ameliorated by the operation of s 181 of the Justices Act. The complaint as filed did not give the appellant a reasonably clear and intelligible statement of the offence with which it was charged, in terms of either the specific offence or the factual manner in which the appellant's acts or omissions are alleged to constitute the specific offence.

[103] The complaint is defective on its face for that reason as well, again giving rise to the question whether that defect was or could be remedied in the circumstances by the later provision of particulars and/or by the exercise of the power of amendment.

[104] The finding that the complaint does not comply with s 22A of the Justices Act either in its specificity or in the aspect of particulars does not lead to the conclusion that it was invalid in the sense that the proceeding is a nullity. In circumstances where a charge is defective for those reasons, but that irregularity may be cured by amendment, it cannot be said that the charge is a nullity.[80] That focuses attention on the statutory power of amendment, and whether it may reach the irregularity in this case.

[105] Decisions from other jurisdictions may be of limited utility in determining that matter. Some statutory regimes do not include a power of amendment, with the result that a charge which omits an essential element of the offence or adequate particulars is invalid and cannot be amended.[81] When considering the power of amendment, its breadth may vary significantly between jurisdictions, as may the conditions which govern the exercise of the power.[82]

[106] The relevant provisions concerning amendment are contained in ss 182 and 183 of the Justices Act (now replicated in ss 182 and 183 of the Local Court (Criminal Procedure) Act (NT)). They provide:

182 Information or complaint not to be objected to for irregularity

No objection shall be taken or allowed to any information or complaint in respect of:

(a) any alleged defect therein, in substance or in form; or

(b) any variance between it and the evidence adduced in its support at the preliminary examination or at the hearing (as the case may be):

Provided that the Court shall dismiss the information or complaint, unless it is amended as provided by section 183, if it appears to him or to it:

(a) that the defendant has been prejudiced by the defect or variance; or

(b) that the information or complaint fails to disclose any offence or matter of complaint.

If it appears to the Court before whom any defendant comes or is brought to answer any information or complaint that the information or complaint:

(a) fails to disclose any offence or matter of complaint, or is otherwise defective; and

(b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect,

the Court may amend the information or complaint upon such terms as may be just.

[107] A number of preliminary observations may be made in relation to those provisions. First, s 182 provides that no objection may be made in respect of a defect in a complaint, whether that defect is in substance or in form. Secondly, it contemplates that any such defect may be amended pursuant to s 183, even where the defect is such that the defendant has been prejudiced and/or the complaint fails to disclose any offence. Thirdly, s 183 permits the court to amend a defective complaint, including one which does not disclose any offence or matter of complaint, on such terms as may be just.

[108] The text of the provisions provides no indication of the considerations relevant to whether leave to amend should be allowed. Dixon J gave some attention to that matter in Broome v Chenoweth in the following terms:[83]

An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.

[109] That test is reflected in observations made by Nettle JA in Kypri to the effect that, even where a limitation period has expired, "an amendment which clarifies the charge is permissible and an amendment which goes further than that is not".[84] If the amendment would result in the formulation of a new and different charge it would constitute an impermissible attempt to avoid the limitation period.[85]

[110] The Court in Kypri concluded that it would be open to the magistrate, on remitter, to amend the charge to clarify that the reference to s 55 should be a reference to s 55(1) if it was established that the defendant had been provided with information prior to the expiry of the limitation period - in that case the police brief -which made it plain that the requirement "to accompany and furnish" was asserted on the basis that the defendant had undergone a preliminary breath test which indicated his breath contained alcohol.[86]

[111] Nettle JA reasoned that in circumstances where the true nature of the offence is not apparent from the face of the complaint as filed, an amendment to cure a defect in the complaint will not be productive of injustice where the true nature of the charge was able to be discerned before expiration of the limitation period by means of particulars given or some other form of written communication.[87] This reasoning imposes a requirement additional to the requirement that an amendment will not be permitted after the expiry of the limitation period where it would result in the formulation of a new and different charge. It is unclear whether this added requirement was based on public policy grounds to discourage the commencement of criminal proceedings by defective process; or on the proposition that where the true nature of the charge is not apparent ex facie it would not be "just" to permit amendment after the expiry of the limitation period unless prior to that time the defendant was in a position to ascertain the true nature of the charge from extraneous materials and circumstances.

[112] Ashley JA made the following observations in that respect:[88]

Both Nettle JA and Tate JA refer to possible documentary material which might persuade a magistrate or judge that a defendant had been on notice of the true nature of the charge within the limitation period. I regard it as being of the first importance that the notice should be both in documentary form, and unambiguous. What is potentially involved is the remedy of defective criminal process outside the prescribed limitation period. The commencement of criminal proceedings by defective process, whatever be the explanation for doing so, must be discouraged. Permitting defective process to be remedied, specifically outside the period of limitation, should not be understood as something which is available as a matter of course, on scant material, or upon oral assertion that a defendant was put on notice of the true nature of the charge. It need hardly be said that the consequences of remedy being permitted are potentially serious for a defendant.

[113] Tate JA was of the view that the limitation period would be defeated if the charge was amended after its expiry to specify an offence not contemplated by the contents of the police brief provided before expiry; or if the contents of the police brief which operated to resolve the uncertainty in the charge were not provided to the defendant until after the limitation period had expired.[89]

[114] In Harrison, the Queensland Court of Appeal concluded relevantly that notwithstanding the multiplicity of the charges in the complaint as it stood, it was capable of amendment to plead a specific offence even though the limitation period had expired.[90] This conclusion was based on the fact that the particulars in the complaint, although prolix and confusing, did in some parts identify the elements of the specific offence which the proposed amendment would plead. It is of note that this determination was made in circumstances where the complaint as filed was described as one that "manages, almost artfully, to avoid setting out a clear statement of the relevant obligation or its contravention";[91] and one in which the particulars alleged "the required elements for a multiplicity of offences".[92] There was no suggestion that the defendant in that case had otherwise been put on notice in writing of the true nature of the offence alleged before the expiration of the limitation period by disclosure of the contents of the police brief or in some other form.

[115] The power of amendment in the Justices Act is wide-ranging and extends to any defect in a charge whether in substance or in form, and may even be exercised where there is a variation between the charge and the evidence presented in the proceeding. It serves the purpose of ensuring that justice is not defeated by errors and omissions which are not productive of injustice.[93]

[116] What was alleged in the complaint in this case was unquestionably an offence known to the law. The defect was in failing to make clear which of the two offences for which s 32 of the WHS Act provides, in combination with s 19, was the one alleged; and in failing to provide particulars of the factual elements of that offence. The limitation period had expired prior to the provision of particulars specifying that the relevant failure was to ensure the health and safety of the worker and explicating the acts and omissions said to constitute that failure. A number of observations may be made in relation to the exercise of the power of amendment in those circumstances.

[117] First, an amendment should not be permitted which would have the effect of charging a different offence out of time. To do so would be tantamount to permitting a new charge to be laid. The clear injustice in permitting an amendment of that nature is the exposure of the defendant to criminal sanction outside the period stipulated by the legislature for the initiation of such proceedings. Injustice of that nature does not present where the amendment would not have the effect of charging a new or different offence out of time.

[118] Secondly, under s 183 of the Justices Act the relevant enquiry - in circumstances where the complaint does disclose an offence known to the law - is whether the amendment of the complaint would otherwise give rise to injustice. That will depend upon the circumstances of the case. The question will usually involve some enquiry as to whether the defendant was in a position prior to the expiry of the limitation period to ascertain the true nature of the charge from the terms of the complaint together with extraneous materials and circumstances. That enquiry is not necessarily limited to the ascertainment of whether the police brief or particulars were provided prior to the expiry of the limitation period, and should not be divorced from a consideration of whether the defendant would in fact suffer material injustice or prejudice if the amendment is allowed.

[119] There are a number of ways in which material injustice or prejudice could conceivably manifest. In circumstances where the application for amendment is made after the conclusion of a trial but before judgment is pronounced, injustice may lie in the fact that the defendant was precluded from testing or leading evidence directed to the complaint as proposed to be amended. There may be circumstances in which the proposed amendment to the complaint will call into question issues where the relevant evidence has been lost, or is likely to have been lost. There may be circumstances in which an application to amend is made so long after the commission of the alleged offence, or the expiry of the limitation period, that it would be oppressive to allow the amendment. There may be circumstances in which a defendant has unwittingly arranged its affairs such that it is unable to fairly defend itself if an amendment is permitted to cure a defect in the complaint. Finally, there may be circumstances in which the public interest in the expeditious resolution of criminal litigation militates against amendment.

[120] Having found that the complaint was defective in form, the Court of Summary Jurisdiction correctly identified the issue to be determined, viz "when and in what circumstances does s 183 allow a defective complaint to be amended out of time when the amendment sought does not seek to charge a new and different offence". The magistrate found that notwithstanding the formal defect the true nature of the offence was apparent from the face of the charge. For the reasons that are set out above, that finding was made in error.

[121] However, his Honour went on to find that even if the true nature of the offence was not apparent from the face of the charge, the appellant was in possession of other information prior to the expiry of the limitation period which, when taken in combination with the matters set out in the complaint, was "sufficient to impart to the [appellant] a sufficient understanding of the nature of the alleged offence". The other information was identified as the prohibition notice issued by WorkSafe preventing the defendant from using the loader, and the improvement notice issued to require the appellant to review its procedures for hazard identification, risk assessment and control measures for safe systems of work.

[122] Those documents were served on the appellant in the following circumstances. The incident giving rise to the death occurred on a property owned and controlled by the appellant. The deceased had been employed by the appellant as the head of maintenance for the appellant's business conducted on the property. He had been employed in that capacity for approximately 12 months prior to his death. The deceased was struck across the abdomen by a metal pole in the course of his employment in the appellant's business on that property, and died shortly afterwards. The undertaking in which the deceased was engaged at the time was the installation of light poles for the horse yard on the appellant's property. The poles needed to be shortened for that purpose. To that end, the poles were being moved into a shed using a "skid steer loader".

[123] Each pole was approximately 9 metres long and weighed approximately 354 kilograms. The four people involved in the task were all employees of the appellant. The employee operating the loader had commenced working for the appellant the previous day, and was not familiar with the operation of foot pedal loaders generally or this loader particularly. As the loader operator was attempting to lower one of the poles onto a stand he lost control of it, the deceased was knocked to the ground, and the pole fell across the deceased's abdomen from a height.

[124] An initial coronial investigation was conducted in conjunction with an investigation by WorkSafe, the work health and safety investigation agency. During the course of that investigation a hydraulics mechanic identified a number of defects in the operation of the loader's hydraulic system which may have contributed to the incident. A second examination of the loader by a workplace health and safety consultant concluded that when the hand lever was not being operated the loader did not remain stationary as it was designed to do, but rather turned to the left in a forward motion at approximately 0.5 m/s. During the course of the investigation the managers of the appellant's business on the property indicated to investigators that they were aware that the hydraulics on the loader moved to the left.

[125] Following the investigation WorkSafe issued and served a prohibition notice on the appellant prohibiting the use of the loader until the defect has been remedied. The appellant subsequently sold the loader with the prohibition notice in place. Following the WorkSafe investigation the appellant was also served with an improvement notice requiring it to review its procedures for hazard identification, risk assessment and control measures for safe systems of work having regard to the circumstances of the deceased's death.

[126] It was against that background that the summons and complaint were served. The complaint identified the date on which the incident occurred, identified the deceased by name, and identified the substance of the offence as the breach of a health and safety duty which exposed that named individual to a risk of death or serious injury. Although the incorporation of the deceased's name was not sufficient to satisfy the requirement that the complaint identify ex facie the specific offence with which the appellant was charged, it is properly taken into account in the quite different assessment of whether the appellant was in a position to ascertain the nature of the charge prior to the expiry of the limitation period. That is particularly so in circumstances where the appellant as employer was clearly in a position to know the nature of the employment relationship, and where the agents and employees of the appellant had been involved in the investigation of the death by the work health and safety authority.

[127] Those matters provided sufficient grounds for the finding that prior to the expiry of the limitation period the appellant was in a position to ascertain the true nature of the charge from the content of the complaint when considered together with the extraneous materials in its possession and circumstances within its knowledge. The fact that the incident was subject to a number of investigations at the time is also relevant to the question whether evidence may have been lost or difficulties in gathering evidence may cause some prejudice in the defence of the charge.

[128] Having found that the appellant had been in possession of information sufficient to afford an adequate understanding of the nature of the charge, the magistrate went on to consider whether an amendment could be allowed in terms that were just. That resolved to the question whether the defendant had been "prejudiced in presenting a defence by the defect".[94] His Honour concluded that there was no material prejudice. That finding was unsurprising in circumstances where the only matters identified by counsel for the appellant which might constitute material prejudice are the loss of the limitation defence and the "possibility" that the defence of the matter has been compromised by the effluxion of time.

[129] So far as the limitation defence is concerned, while an amendment which effectively constituted the laying of a new charge outside the limitation period would give rise to a material injustice, an amendment clarifying the charge, in circumstances where the nature of the offence should have been reasonably apparent to the appellant, would not. So far as the conduct of the defence is concerned, there would have been the same delay between the death in question and the expiry of the limitation period even had the complaint been filed in proper form. It is also the case that the matters adverted to above concerning the appellant's state of knowledge prior to the expiry of the limitation period suggest that the potential (and unspecified) difficulty which the appellant might face in gathering evidence is unlikely to cause injustice.

[130] In the event, the Court of Summary Jurisdiction made an order in the following terms:

The Court makes an order allowing the complaint to be amended to include either an allegation or particularisation of the act or omission, or series of acts or omissions, constituting the contravention of s 32 of the Act.

[131] The matter proceeded to the Supreme Court by way of judicial review. In order to make out an entitlement to relief it was incumbent on the appellant to establish jurisdictional error on the part of the Court of Summary Jurisdiction. When considering an asserted error on the part of an inferior court entrusted with authority to identify and determine relevant issues and questions, the error will ordinarily not go to jurisdiction unless it is of the nature identified in Craig v South Australia.[95] Errors of that nature on the part of an inferior court include a mistaken assertion or denial of the existence of jurisdiction; acting wholly or partly outside the general area of its jurisdiction; and purporting to exercise jurisdiction where an essential condition to its existence in a particular matter has not been satisfied.

[132] Given that a relevant function of a valid indictment is to confer jurisdiction on the court,[96] it may be accepted that proceeding to determine a charge and enter a conviction on an invalid indictment would amount to jurisdictional error, and ground the grant of prerogative relief. It is far less apparent that a discretionary determination to permit the amendment of a complaint to cure a defect in the interests of justice may give rise to jurisdictional error, even if some error of law was committed in making that decision. Even if the exercise of the power of amendment under s 183 of the Justices Act may be characterised as going to jurisdiction, for the reasons already given we do not consider that the Court of Summary Jurisdiction fell into error in the exercise of that power.

[133] The terms of the order made by the Court of Summary Jurisdiction give rise to a further issue which should be addressed as it may bear on the form and substance of any subsequent amendment. The order does not specify whether the amendment should be to the statement of the specific offence or to the particulars of the nature of the charge. As a matter of technical pleading practice, and under the structure contemplated by s 22A of the Justices Act, the pleading of the charge should specify the legal nature of the offence charged (including the particular subsection of s 19 constituting the offence), and the particulars should specify the manner in which the offence was committed. In other words, the specific nature of the offence is properly pleaded in the charge rather than provided in the particulars.

[134] As the Queensland Court of Appeal observed in Harrison v President of the Industrial Court of Queensland & Ors (footnotes omitted):[97]

[163] As previously stated, the charge in the complaint did not charge the alleged offence in the words of the Act creating the offence, or in similar words. Instead, the charge merely alleged that the fourth respondent failed to discharge the safety obligations imposed by ss 36 and 38 of the Act. The proposed amendment would delete reference to s 36 and confine itself to the obligation under s 38(1)(a), but does not allege the offence in the words of the Act. That function is left to the particulars.

[164] In my view, that is not the appropriate or required form of criminal pleading under the Justices Act 1886 (Qld). The requirements for a complaint under that Act do not generally refer to a distinction between the pleading of a charge in a complaint and any particulars of the facts alleged. In contrast, s 564(1) of the Criminal Code provides that an indictment must set forth the offence with which the accused person is charged in such manner and with such particulars as may be necessary to inform the accused person of the nature of the charge.

[165] The purpose of particulars is not the same as the purpose of charging the alleged offence in the words of the Act. The charge itself must satisfy the requirement that it charges an offence known to law. And "it is preferable that a statutory offence be pleaded in the relevant terms of the statute by which it is created." Even where the words of the section creating the offence are used, the absence of particulars may leave the accused person without notice of the facts to prove the charge. In R v Trifyllis, Chesterman J said:

"The function of particulars is to enable an accused to know the nature of the charge which he is called on to meet. See R v Juraszko [1967] Qd R 128 at 135 per Stable J (with whom on this point Gibbs J agreed) ... The same conclusion as to the function of particulars was arrived at by Hunt A-JA in R v Saffron (1989) 17 NSWLR 395 at 445-9. The point was discussed at a little more length than in Juraszko but, in essence, it was thought that the function of particulars is the same in criminal as in civil cases. Hunt AJA said:

The appellant argues that the principles relating to particulars in criminal cases are different to those applicable in civil cases. No authority was produced for that submission. Nor is it easy to see why that should be so.

Certainly, an accused's entitlement to particulars in a criminal case is the same as a defendant's entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him...

Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute), an accused is entitled to have identified the specific transaction upon which the Crown relies and to be apprised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge...'"

[135] The Court of Appeal concluded that, although not fatal, the statement of a specific offence should be pleaded in the charge rather than incorporated by particulars. Unlike the Queensland legislation dealing with the form of complaints, s 22A of the Justices Act does draw a distinction between the pleading of a charge in a complaint and particulars of the facts alleged. While proper practice would dictate the incorporation of the specific offence into the charge rather than the particulars, a failure to do so would be saved by s 181 of the Justices Act. As already seen, that section provides that "[i]t shall be sufficient in any information or complaint, if the information or complaint gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged".

[136] We have reached the same conclusion in relation to the operation of the statutory limitation period prescribed by s 232(1)(b) of the WHS Act as did the Supreme Court and the Court of Summary Jurisdiction. We have reached a somewhat different conclusion in relation to the form of the complaint, bearing in mind that the Court of Summary Jurisdiction found in effect that the complaint contained a complete statement of the specific offence with which the appellant was charged and failed only to particularise the factual act or omission said to constitute the offence. For the reasons given above, we are of the view that the complaint was defective on both counts.

[137] As already noted, the application before the Supreme Court, from which this appeal is brought, was for judicial review of the decision of the Court of Summary Jurisdiction. That application sought an order in the nature of certiorari to quash the decision of the Court of Summary Jurisdiction determining: (a) that the complaint had been laid within the limitation period fixed by s 232(1)(b) of the WHS Act; and (b) that the complaint, although defective, was capable of amendment pursuant to s 183 of the Justices Act. The application also sought a consequential order in terms that the complaint be dismissed.

[138] In the application for judicial review the focus of any relief was on the order made by the Court of Summary Jurisdiction rather than the reasoning underlying that order. In other words, it was the order which stood to be vitiated rather than the reasoning. The relevant order was an order allowing the complaint to be amended, with the court to hear the parties as to the form and substance of the amendment in the absence of agreement. The Supreme Court dismissed the application for judicial review, effectively refusing to quash or otherwise set aside the order of the Court of Summary Jurisdiction allowing the complaint to be amended.

[139] We do not consider that the Supreme Court was in error in refusing to quash the order made by the Court of Summary Jurisdiction. That follows because we do not consider that the order allowing the complaint to be amended was vitiated by jurisdictional defect. The appropriate course is for the Local Court (formerly the Court of Summary Jurisdiction) to hear the parties as to the form and substance of the amendment and to proceed in accordance with law. For these reasons, we dismiss the appeal and we will hear the parties as to costs.

[1] Although this is not expressly stated in the Statement of Particulars, the pole was being carried by a skid steer loader at the time of the incident.

[2] S Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTSC 3.

[7] S Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTSC 3 at [40].

[8] S Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTSC 3 at [37]- [40].

[9] Coroners Act, ss 12 and 14. A "reportable death" is defined to include a death "that appears to have been unexpected, unnatural or violent or to have resulted, directly or indirectly, from an accident or injury". It follows that the death in this case was a "reportable death", which the coroner clearly had jurisdiction to investigate.

[10] Coroners Act, s 15(1). A coroner must hold an inquest if the deceased was a person held in care and custody immediately before the death; the death was caused or contributed to by injuries sustained while the deceased was held in custody; or the identity of the deceased is not known.

[11] Coroners Act, s 15(1A), (2) and (3).

[12] Coroners Act, s 16(1).

[13] Coroners Act, s 34(1).

[14] Shorter Oxford English Dictionary (Fifth Edition, Oxford University Press, Oxford 2002).

[15] R v Westminster (City) London Borough Rent Officer, ex parte Rendall [1973] 3 All ER 119 at 121; Quazi v Quazi [1979] 3 All ER 424 at 429-430_._

[16] Cheney v Spooner [1929] HCA 12; (1929) 41 CLR 532 at 536-537, in relation to the term as used in the Service and Execution of Process Act (Cth).

[17] Krextile Holdings Pty Ltd v Widdows [1974] VicRp 83; [1974] VR 689 at 693.

[18] DC Pearce & RS Geddes, Statutory Interpretation in Australia (Eighth Edition, LexisNexis Butterworths, Australia 2014) at paragraph [1.13], citing Australian Securities Commission v Malborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485 at 492 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135].

[19] It would appear that the decision below in the Supreme Court is the only time that s 232(1)(b) of the WHS Act, or any of its analogues, has been subject to judicial consideration in Australia.

[20] It should also be noted in this respect that Victoria and Western Australia are not participants in the national uniform scheme. That deprives the coronial legislation from those two jurisdictions of any arguable relevance in the interpretive process. It also raises the issue whether it is a principle governing the interpretation of uniform but non-national legislation that its provisions should be interpreted uniformly: R v XY [2013] NSWCCA 121; (2013) 84 NSWLR 363 at [37]- [40].

[21] Coroners Act 2003 (SA), s 4.

[22] Coroners Act 2009 (NSW), ss 46, 47, 54 and 57.

[23] Coroners Act 1997 (ACT), Part 5.

[24] Coroners Act 2003 (SA), ss 10 and 11.

[25] Coroners Act 2003 (SA), s 13.

[26] Coroners Act 2003 (SA), ss 19, 21, 23 and 24.

[27] Coroners Act 2003 (SA), s 22.

[28] Coroners Act 1995 (Tas), s 21, 24, 26, 28 and 29.

[29] Coroners Act 2003 (Qld), ss 11, 27, 28 and 45 and Schedule 2.

[30] See also Information Act (NT), s 5(5)(c); Care and Protection of Children Act (NT), ss 221(2)(b)(ii) and 293E(5)(a)(ii); and the definition of "relevant proceeding" in s 4 of the Surveillance Devices Act (NT).

[31] The whole coronial process is an investigation which may or may not culminate in a public hearing in the form of an inquest. A coroner is obliged to find, inter alia, the identity of the deceased person, the time and place of death, the cause of death, and any relevant circumstances concerning the death. This constitutes the essential part of the coronial function and a coroner is required to act judicially in discharging this duty regardless whether the investigation proceeds to inquest.

[32] Coroners Act, s 26.

[33] Coroners Act, s 35(1), (2).

[34] Coroners Act, s 35(3).

[35] The process by which summary prosecutions were initiated in New South Wales was by way of "information" rather than "complaint". Nothing turns on this difference in terminology.

[36] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J; [1937] HCA 77.

[37] (1987) 163 CLR 508; [1987] HCA 42.

[38] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519.

[39] John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 519.

[40] John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 520.

[41] De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292, referred to in John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 520.

[42] [1937] HCA 77; (1937) 59 CLR 467 at 486.

[43] [1937] HCA 77; (1937) 59 CLR 467 at 501; and see Smith v Moody [1903] 1 KB 56 at 60.

[44] As is discussed further below, the common law did not permit amendment. The finding that a complaint would be invalid at common law does not answer the question whether a defect may be remedied in circumstances where there is a statutory power of amendment.

[45] Now replicated in s 22A of the Local Court (Criminal Procedure) Act (NT).

[46] In addition, s 22A does not exclude common law principles to the extent that s 22A(4) contemplates all documents that are sufficient in law continue to be sufficient in law notwithstanding the requirements of the section. Although in its statement of the essential requirements of a valid complaint s 22A reflects the central common law principles, it also includes some provisions which were designed to address some of the common law's inflexibility. Those provisions were directed to what had come to be seen as the undesirability of miscarriages caused by technical objections to matters of form, such as an insistence on the use of technical terms and an exhaustive statement of the elements of the offence.

[47] Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339 at [13], [22] and [149].

[48] The term "worker" is defined in expansive terms in s 7 of the WHS Act; and the descriptions appearing in s 19(1)(a) and (b) of the WHS Act are neither mutually exclusive nor designed to create separate and different offences. The purpose of that provision, operating in conjunction with the definition of "worker", is to cast the net broadly to ensure that the health and safety duty so created applies to any person engaged or directed in a business or undertaking, be they employee, independent contractor, labour hire worker, work experience student, volunteer or any other category of person included in the definition; but only while they are at work in the business or undertaking in question.

[49] The conclusion reached in Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339 at [20] to different effect in the context of the South Australian legislation was based on the fact that the independent and separate obligations discerned there included matters, such as the keeping of information and records, which involved no immediate or apparent bearing on ensuring the health and safety of workers and others potentially at risk from the conduct of the business or undertaking. There are no obligations appearing in s 19(3) of the WHS Act which are similarly unrelated to the health and safety duties contained in ss 19(1) and (2).

[50] Such as the provision of the police or prosecution brief.

[51] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Nettle JA at [19], [20], [27] and [28].

[52] Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339 at [138]- [141]; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 497-498; Walsh v Tattersall (1996) 188 CLR 77 at 105.

[53] [2011] VSCA 257; (2011) 33 VR 157 at [16], citing Director of Public Prosecutions Reference No 2of 2001; Colicoat v Director of Public Prosecutions; Bell v Dawson [2001] VSCA 114; (2001) 4 VR 55 at 68-69.

[54] [2011] VSCA 257; (2011) 33 VR 157.

[55] Adopting Tate JA's shorthand formulation from Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 at [77].

[56] The requirements created under the other subsections of s 55 were quite different in content, such as the requirement to provide a blood sample.

[57] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Nettle JA at [12].

[58] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Tate JA at [76].

[59] Section 55 of the Justices Act (now replicated in s 55 of the Local Court (Criminal Procedure) Act (NT)), is in almost precisely the same terms as the Victorian provision.

[60] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Nettle JA at [15].

[61] See, for example, Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Tate JA at [75].

[62] See the statutory provision to the same effect in s 181 of the Justices Act (now replicated in s 181 of the Local Court (Criminal Procedure) Act (NT)).

[63] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Nettle JA at [16].

[64] [2016] QCA 89.

[65] Per Jackson J, with whom McMurdo P and Morrison JA concurred.

[66] (1972) 3 SASR 1 at 8. Section 22A of the Justices Act (SA) is in the same terms as the corresponding provision of the Territory legislation.

[67] [1903] 1 KB 56 at 60, 61 and 63.

[68] Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [29], citing Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486 per Dixon J; cf John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 529 per Brennan J.

[69] John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 520.

[70] John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 520, citing De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292.

[71] Lafitte v Samuels (1972) 3 SASR 1.

[72] Re Williams; Ex parte Wood [1932] NSWStRp 5; (1932) 32 SR (NSW) 177.

[73] Giles v Samuels (1972) 3 SASR 307.

[74] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 501 per McTiernan J, referred to in Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [26].

[75] Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81WN (Pt 1) (NSW) 286 at 290-291 per Walsh J, referred to in De Romanis v Sibraa [1977] 2 NSWLR 264 at 291.

[76] See also now the pre-hearing procedures contained in ss 60AD to 60AF of the Local Court (Criminal Procedure) Act, which commenced in September 2015.

[77] Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339 at [22]- [25].

[78] NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2013] QCA 179; [2014] 2 Qd R 304 at [60].

[79] As was the case in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531.

[80] Director of Public Prosecutions v Poniatowska [2011] HCA 43; (2011) 244 CLR 408 at [49].

[81] Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 at [21], referring specifically to the statutory regimes considered in John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 and Ex parte Lovell; Re Buckley [1938] NSWStRp 12; (1938) 38 SR (NSW) 153.

[82] Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 at [107]- [119].

[83] (1946) 73 CLR 583 at 601.

[84] Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 at [23], referring specifically to Broome v Chenoweth.

[85] Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 at [23]. See also Romeyko v Samuels (1972) 2 SASR 529; Chaudhary v Ducret (1986) 11 FCR 163; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Videon v Barry Burroughs Pty Ltd [1981] FCA 168; (1981) 53 FLR 425 per Fisher J at 444.

[86] Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Nettle JA at [39].

[87] Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 at [21], referring to Director of Public Prosecutions Reference No 2 of 2001; Collicoat v Director of Public Prosecutions; Bell v Dawson [2001] VSCA 114; (2001) 4 VR 55 and Woolworths (Victoria) Ltd v Marsh (unreported, Supreme Court of Victoria, 12 June 1986) at 18.

[88] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Ashley JA at [65].

[89] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Tate JA at [84]-[87].

[90] Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 at [152]- [160].

[91] Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 at [133].

[92] Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 at [156].

[93] See Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157 per Nettle JA at [27].

[94] Citing Hannan's Summary Procedure of Justices (Fourth Edition) at p 200.

[95] [1995] HCA 58; (1995) 184 CLR 163 at 177-180. See also Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [67]- [68].

[96] Doja v The Queen (2009) 198 A Crim R 349 at [5]-[7]; John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 518; Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 per Jackson J at [88]-[93], with whom McMurdo P and Morrison JA concurred.

[97] [2016] QCA 89 per Jackson J, with whom McMurdo P and Morrison JA concurred.