Baiada Poultry v VWA [2015] VSCA 344

1 We have had the benefit of reading, in draft form, the reasons of Robson AJA.

2 We agree with his Honour that appeal ground 1 should be dismissed. We would add that a reasonable defendant reading the charges would understand that the workplace is the factory owned by the appellant ('Baiada') at Laverton. Similarly, the reasonable defendant would understand that the matter over which it is alleged that it had control was the chicken processing line, regardless of the position of the subcontractor and without distinction between times when cleaning is taking place and when it is not. There is no mention of the subcontractor in the charge. Nor is such reference necessary if the allegation is (as it must be) that Baiada, rather than or in addition to the subcontractor, had control over that matter. It will be a matter for trial whether the Victorian Workcover Authority ('VWA') can make out its case in relation to the element of control by Baiada. Ground 1 is without merit.

3 With respect, we take a different view to Robson AJA so far as appeal grounds 2 and 3 are concerned. We would grant leave to appeal because those grounds have a prospect of success which is real in the sense that it is not fanciful.[1] Nevertheless, for the reasons set out below, we would dismiss the appeal on grounds 2 and 3. We will not repeat the facts nor refer to the authorities in detail save where convenient or where necessary to understand why our views diverge from those of Robson AJA.

4 As Robson AJA explains, this appeal arises out of a workplace incident which resulted in the death of a person who was cleaning a chicken processing machine at a factory in Laverton North that is owned by Baiada. Charge 4 reads:

On 12 August 2010 at Laverton in the State of Victoria pursuant to section [26(1)] of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as a person who had, to any extent, the management or control of a workplace you failed to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were safe and without risks to health.

Particulars:

(a) Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that ensured that when persons including Satinder Pal Singh Sarel were cleaning the chicken processing chain line including associated sprockets, shackles and wash boxes, the chicken processing chain line was not operating.

(b) Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that prevented persons including Satinder Pal Singh Sarel, coming in contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned.

5 The issue for determination is whether that charge is valid. The Criminal Procedure Act 2009 ('CP Act') requires charge-sheets to contain the particulars that are necessary to give reasonable information as to the nature of the charge.[2] As Robson AJA has observed, the requirements of the CP Act do not supplant the common law requirements. Rather, the common law elucidates what constitutes 'reasonable information'. That is, if the charge is to be valid, the essential factual elements of the offence, in addition to its legal nature, must be identified in the charge.[3] It is necessary to say a little more below as to the relationship between the CP Act and the common law.

6 Here the question of the validity of the charge is important. The reason for this is because the limitation period for a charge against Baiada under s 26(1) of the Occupational Health and Safety Act 2004 ('OHS Act') has expired. VWA wishes to amend the charge-sheet, principally by adding further particulars. Under s 8(4) of the CP Act, if a charge-sheet sufficiently discloses the nature of the offence, then even though the limitation period has expired, it may be amended provided that the amendment will not cause injustice to the accused and does not amount to commencement of a proceeding for a new offence.

A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.

Penalty: 1800 penalty units for a natural person;

9000 penalty units for a body corporate.

8 Section 20 of the OHS Act deals with the concept of what is 'reasonably practicable.' It provides:

(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person -

(a) to eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety -

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

9 The trial judge found that charge 4 was valid.[4] His reasons were as follows:

Read fairly, charge 4 alleges that Baiada had, to an extent, the management and control of a workplace at Laverton. The particulars, when read with charge 4, indicate that the control extended to the chicken processing chain line. They also indicate that the failure to ensure, so far as was reasonably practicable, that the workplace, being the chicken processing chain line, was safe and without risks to health, consisted in not having an adequate system in place to ensure that when persons were cleaning the chicken processing chain line and associated equipment, the line was not operating. In this instance, the particulars provided 'a readily available standard' to give meaning to the expression 'adequate system'.

The question of whether the VWA can establish the allegation that Baiada had control of part of the workplace and whether as far as was reasonably practicable the workplace was safe and without risks to health are matters to be determined at the hearing of charge 4.

I have found charge 4 valid because, unlike charge 1, it does not have as an essential element that Baiada had the duties of an employer to Mr Singh. It does have as an essential element that the person, here Baiada, did have to an extent the management or control of a workplace. The words of charge 4 contain those allegations. The particulars to charge 4 specify the matters over which it is alleged that the control existed, namely the operation of the chicken processing chain line. I do not consider that any more was required for a valid charge. I express no opinion about whether a request for further particulars might be made by Baiada.[5]

10 Ground 2 of the appeal is that the judge erred because the charge failed to identify the measures which Baiada should have taken to ensure that it had an adequate system, first, to stop the chicken processing line from operating, and secondly, to prevent people from coming into contact with it during cleaning. Ground 3 focuses on what is said by Baiada to be a failure by VWA to identify the essential factual elements for the proposition that it was reasonably practicable for Baiada to implement the measures it allegedly should have taken.

11 Both grounds involve a question about the adequacy of the charge. In that regard, the controlling requirements are those set out in the CP Act, namely that the charge must state the offence that the accused is alleged to have committed (sch 1, cl 1(a)) and that it must contain the particulars necessary to give reasonable information as to the nature of the charge (cl 1(b)). In the case of the first requirement, it is sufficient in the case of a statutory offence such as that in issue in the present case that the offence is identified by the provision which creates it and by a description of the offence in the words of that provision, or similar words: cl 3. In relation to the second requirement, the particulars must be set out in ordinary language: cl 2. No exception, exemption, proviso, excuse or qualification needs to be specified or negatived in the charge: cl 4.

12 The High Court in Kirk v Industrial Court of New South Wales[6] considered the relationship between the common law requirements for a valid charge and s 11 of the Criminal Procedure Act 1986 (NSW), which at the relevant time provided that the description of any offence in the words of an Act creating the offence was 'sufficient in law'. The plurality judgment held that this requirement did not dispense with the common law rule requiring specification of the time, place and manner of the defendant's acts or omissions.[7]

13 In Victoria, the provision corresponding to s 11 is cl 3 of sch 1 of the CP Act. Its operation is consistent with that of s 11 as described by the plurality in Kirk. However, it is plain from its terms that cl 3 addresses only the first of the two requirements under the Victorian legislation set out above. The common law is affected by the second requirement of cl 1. Clause 1(b) supplies a statutory test for determining the adequacy of the particulars furnished as part of the charge. There is no equivalent to cl 1(b) in the New South Wales legislation. Kirk says nothing as to the relationship of the common law authorities to a statutory test of the Victorian kind.

14 Although the governing test is that in cl 1(b), however, it is apparent that it has much in common with the approach of the common law. In Johnson v Miller[8] the High Court was considering a charge governed by s 181 of the Justices Act 1936 (SA), which provided that 'It shall be sufficient in any ... complaint, if the same gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged'.[9] McTiernan J described this provision as embodying 'the well-established rule of practice in criminal proceedings' that 'fair information and reasonable particularity as to the nature of the offence charged must be given to the defendant'.[10]

15 This requirement has been expressed in different ways. In Johnson v Miller, Dixon J referred to 'the necessity of specifying the time, place and manner of the defendant's acts or omissions'.[11] In Smith v Moody, on which the High Court relied in that case, Lord Alverstone CJ referred to 'the old rule of criminal practice which requires that fair information and reasonable particularity as to the nature of the offence must be given'.[12] Wills J said that 'whatever is necessary to show that the person convicted has done something which brought him within the words of the statute' must be specified, and spoke later of the need for sufficiency 'with respect to the ingredients of the offence' committed.[13] More modern formulations have looked to 'the nature of the offence and the manner in which it had been committed', the 'substance of the charge' and 'the essential factual ingredients' of the offence.[14]

16 The question that arises, bearing these authorities in mind, is whether the present charge contained the particulars necessary to give reasonable information as to the nature of the charge. The 'nature of the charge' involves the conduct making up the actual ingredients of the offending. The more specific issues under grounds 2 and 3 are therefore whether this requires: (a) specification of the features of an 'adequate' system, and (b) identification of the means by which it was reasonably practicable to do what it was alleged that Baiada had failed to do.

17 It is necessary, in considering these more specific issues, to address a number of authorities raised by the submissions and examined in the reasons of Robson AJA.

18 Among other authorities, Baiada relied on Baiada Poultry Pty Ltd v The Queen.[15] In that case, Baiada had engaged two subcontractors. An employee of one subcontractor was operating a forklift to move some steel pallets. One of the pallets was stuck. As he moved the pallet, another pallet fell and killed an employee of the other subcontractor. Baiada was charged under provisions of the OHS Act for failing to provide and maintain a safe working environment. One count read that Baiada:

at MOOROODUC in the said State on or about the 5th day of December 2005 being an employer did fail to provide and maintain so far as was reasonably practicable for its employees, including Mario Azzopardi, Aaron Slocombe, Jacob Devent, Scott Wilmot, Travis Lowe and Mick Anderson a working environment that was safe and without risks to health in that it failed [to] provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health.

Particulars

In breach of its duty Baiada Poultry Pty Ltd failed to:

(a) Provide a system for separating pedestrians from the forklift operating outside the broiler sheds;

(b) Give any directions or adequate directions to truck drivers to remain in their vehicles during the unloading and loading process at grower farms;

(c) Ensure that the forklift was operated by an employee who had received the training necessary to enable him to:

(i) operate the forklift appropriately and safely

(ii) [e]nsure that other employees were not placed at risk.

(d) Adequately identify and eliminate or control the risks associated with the system of unloading and loading live birds for transport at night; or

(e) Provide a forklift traffic management system which controlled the risk of the forklift injuring pedestrians.

19 Baiada was convicted of the offence. It appealed on the basis that the trial judge should have given a direction to the jury that it was for the prosecution to prove beyond reasonable doubt that Baiada's engagement of sub-contractors did not discharge its obligation so far as was reasonably practicable to provide and maintain a safe working environment. The Court of Appeal held in favour of Baiada on this point but dismissed the appeal because the majority took the view that no substantial miscarriage of justice actually occurred. Baiada appealed.

20 In the course of determining that the Court of Appeal could not have been satisfied that there had been no miscarriage of justice, the High Court observed that the words 'reasonably practicable' indicate that the employer is not required to take every possible step that could be taken to provide a safe working environment. It is only required to take reasonably practicable steps.[16] The plurality said:

the question presented by the statutory duty 'so far as is reasonably practicable' to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment.[17]

21 Their Honours noted that the Court of Appeal could only conclude that it was proved beyond reasonable doubt that it was reasonably practicable for Baiada to give directions or give directions and procure compliance with them if it was not open to a jury to conclude to the contrary.[18] The plurality held that the Court of Appeal could not be satisfied of this and said:

No doubt the Court of Appeal could decide whether Baiada had the right to give instructions to its subcontractors. It may also be accepted that the evidence led at trial permitted the jury to conclude beyond reasonable doubt that it was reasonably practicable for Baiada to take steps to ensure compliance with instructions of that kind. But the evidence led at trial did not compel that conclusion.[19]

22 It was accepted in the case that the prosecution bore the onus of proof of establishing what it was reasonably practicable for Baiada to do but which it failed to do.[20]

23 The decision in Baiada did not concern what must be included in a charge-sheet to make the indictment valid. Rather, it dealt with the onus of proof, directions to a jury and whether it was open to conclude that the jury could not have found that the burden that rested on the prosecution had not been discharged. So whilst we accept that at trial in the current case VWA will bear the onus of proof in respect of what it was reasonably practicable for Baiada to do, that does not identify what was required to be included in the charge-sheet. The onus of proof is not determinative of the essential elements of the offence. In passing we would note that if Baiada's arguments in the present appeal were to be accepted, then the charge against it in Baiada (which is set out above) would most likely have been held to be invalid. No mention of this was made by the High Court. Taking that decision as a whole, it is of little assistance in resolving whether the charge-sheet in this case was or was not valid.

24 Chugg v Pacific Dunlop Limited[21] concerned a provision in similar terms to s 20 of the OHS Act. The question for determination was whether the informant or the employer bore the onus of proof in respect of proving practicability. The courts below had held that the burden of proof rested upon the informant. The informant appealed to the High Court. There was no issue about the validity of the charges, which were framed as follows:

that being an employer [the defendant] did fail to provide and maintain as far as was practicable for employees a working environment that was safe and without risks to health when it did fail to provide and maintain plant and systems of work that were so far as was practicable safe and without risks to health in contravention of the provisions of s. 21(1) and 21(2)(a) of [the Act], in that one Robert Mark Everest, an employee, was able to gain access to the trapping space created by the power driven hopper door and frame of a Banbury mill on which he was carrying out maintenance in accordance with his duties

and

that being an employer [the defendant] did fail to provide and maintain as far as was practicable for employees a working environment that was safe and without risks to health when it did fail to provide and maintain plant and systems of work that were so far as was practicable safe and without risks to health in contravention of the provisions of s. 21(1) and 21(2)(a) of [the Act], in that no system of work was in place to ensure that the interaction of the electrical and hydraulic systems of activating a Banbury mill did not result in danger to employees.[22]

25 The High Court held that the onus of proof lay on the informant, not the defendant employer.

26 In explaining that questions of safety and practicability often raise issues of common sense the plurality said:

In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide 'so far as is practicable' a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard.[23]

27 The plurality observed that if the burden of proof were not on the informant, then the issue of what was practicable would have no boundaries for it would be open to the informant's counsel to raise in cross examination alternative means safer than those contended for by the defendant.[24] Their Honours continued:

It is impossible to read into [the section] of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination.[25]

28 It seems to us that the Court was not concerned with the essential elements of the offence. Rather, the Court was solely addressing the question of the burden of proof. As can be seen from the form of the charges against Pacific Dunlop (which we have set out above) they specified that Pacific Dunlop's failure was that the employee was able to gain access to the trapping space and that there was no system in place to ensure that the interaction of electrical and hydraulic systems did not result in danger to employees. The charges did not elaborate further as to the measures which Pacific Dunlop should have taken. If that had been necessary, then those charges would have been invalid. But again, the Court made no mention of this in its reasoning. In our view, the reasoning in Chugg does not assist in identifying the requirements of a valid charge.

29 Similarly, we do not find that the High Court's decision in Slivak v Lurgi (Australia) Pty Ltd[26] assists. It too was a case which considered the onus of proof (in a civil context) and was not concerned with the form of a charge and its essential elements.

30 The decision in John L Pty Ltd v Attorney-General (NSW)[27] is in a different category. In that case the question was whether a proceeding should be struck out because the information was invalid. The information alleged that a retailer had committed an offence by publishing a false or misleading statement in contravention of consumer protection legislation. The information stated that the retailer had committed the offence:

in that it did cause to be published a statement apparently intended to promote the supply of goods, to wit motor vehicles, which statement was to its knowledge false or misleading in a material particular in that in an advertisement in the Daily Mirror on that day, it did cause to be published the following false or misleading statement:-

'Australia Day Week-end holiday offer! 1,000 litres of free petrol! for every customer buying a car over $3,000.00 this week-end.'

31 Mason CJ, Deane and Dawson JJ held that the information was invalid because it failed to identify the material particular in which the retailer's statement was allegedly false and misleading.[28] Their Honours held that the information must, but did not, identify the essential ingredients of the offence.[29] They approved what had been said in earlier authorities, that it was not necessary for the information to contain 'all such material as a defendant may require, upon an application for particulars, for the preparation' of the defence.[30]

32 Baiada also relied on Bunnings Forest Products Pty Ltd v Shepherd.[31] The appellant was convicted of an offence under the Western Australian occupational health and safety legislation. Anderson J (with whom Franklyn and Ipp JJ agreed) looked at the particulars of the charge to see how it was said that the appellant was in breach of the legislation.[32] He noted the importance of proper particulars and referred to what had been said by the majority in John L about the need for an information to identify the essential factual ingredients of the offence.[33] The particulars of the alleged offending were lengthy. The first two particulars summarised what work the employee had been performing and alleged that this exposed him to a hazard. Anderson J observed that these allegations were incomplete and did not reveal the actual offence charged. Relying on the common law authorities, he said that 'this really should have been fatal to the prosecution in the absence of an amendment.'[34] In respect of the balance of the particulars, they were either unrelated to the fatality that had occurred or were irrelevant to the case that the prosecution ran at trial.[35] The case is focussed on particulars that were given, evidence that was led and how the prosecution's real case at trial bore little (if any) resemblance to the charge as particularised, with much of the evidence that was given at trial being irrelevant yet highly prejudicial to the appellant. The case raised no additional legal principles concerning the validity of charges and simply applied what had been said in John L and other authorities. The application of the principles to the facts in that case does not advance Baiada's arguments any further.

33 Kirk concerned whether convictions under the New South Wales occupational health and safety legislation should be quashed. A farm manager employed by Kirk Group Holdings Pty Ltd was killed when an All Terrain Vehicle ('ATV') he was driving on the farm overturned. The employer company was charged under ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW). Sections 15(1) and (2) provided:

(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:

(a) to provide or maintain plant and systems of work that are safe and without risks to health,

(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,

(d) as regards any place of work under the employer's control:

(i) to maintain it in a condition that is safe and without risks to health, or

(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:

(i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

36 The effect of this legislation was to place the burden on the employer to prove that it was not reasonably practicable to comply with the legislative requirements. This is in contrast to the Victorian OHS Act which is the subject of this appeal. In discussing this difference, the plurality in Kirk said:

The scheme of this legislation stood apart from other legislation of this type in Australia. In other States the employer's obligation, to take measures for the health and safety of employees and others, was limited to the taking of such measures as were practicable. This Court has held that such a provision places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable. A feature of the legislation here in question is that where an employer is charged with an act or omission which is a contravention of s 15 or s 16, it will be necessary for the employer to establish one of the defences available under s 53 in order to avoid conviction. Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence.[36]

37 The offences alleged to have been committed by the Kirk company read as follows:

that the Defendant, on 28 March 2001, at 'Mount Hercules Farm' ... a work place operated by the Defendant FAILED TO ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer, contrary to s 15(1) ...

1. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle (ATV);
2. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle (ATV);
3. take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health;
4. ensure that the Polaris All Terrain Vehicle (ATV) was only operated by persons with appropriate training;
5. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.

39 There then followed an allegation that because of the Kirk company's failures, its employees, in particular the farm manager, were 'placed at risk of injury' and he had suffered fatal injuries.

the Defendant, being an employer, on 28 March 2001, at 'Mount Hercules Farm' ... a work place operated by the Defendant FAILED TO ensure that non-employees ... were not exposed to risk of injury arising from the conduct of its undertaking while they were at 'Mount Hercules Farm', contrary to Section 16(1) ...

41 The particulars were stated to be that the employer failed to:

1. ensure that persons not in the employer's employment were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work in relation to the operation of the Polaris All Terrain Vehicle (ATV);
2. ensure that the Polaris All Terrain Vehicle (ATV) was only operated by persons with appropriate training; and
3. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.

42 In the context of the New South Wales legislation, the plurality held that the statement of an offence must identify the act or omission of the employer alleged to make up a contravention of the two sections, with the measures that were not taken assuming importance.[37] Their Honours observed:

The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. Likewise the first particular relating to the s 16(1) offence repeated the words of that sub-section and merely connected them to the operation of the ATV. Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity.[38]

43 Their Honours went on to refer to the common law requirement that a defendant be told of the particular act, matter or thing that the charge is based upon.[39] They noted that the facts set out in the charge need not be as extensive as those which a defendant might obtain on an application for particulars.[40] In the case before them, the plurality observed that the Kirk company needed to know what steps it was alleged it should have taken if it was to rely upon a defence under s 53.[41] They said:

The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.[42]

44 A little later in their reasons the plurality said:

the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as 'an administrative commission of inquiry' rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences.[43]

45 It is noticeable in this passage that their Honours focussed on the need to particularise the acts and omissions upon which the charge is based. Later on in their reasons they observed that it is the act or omission of the employer which constitutes the offence and noted that the trial judge had not appreciated that no act or omission on the part of the Kirk company had been charged.[44] We will say more about this below.

46 In relation to ground 2, Baiada contended that the charge-sheet prescribed a result rather than specifying what steps or measures should have been taken by it. It submitted that the first particular proceeded on the assumption that the chicken processing line had to be stopped during cleaning (without providing a basis for thinking that it is possible to clean the machine if it is stopped) whilst the second particular assumed that the processing line would continue in operation while being cleaned (with no facts pleaded to show how to prevent access to it while that was being done). There were a number of matters that it argued it needed to know from the charge-sheet before it would confront a valid charge. As examples, it asked rhetorically whether it should have locked down the chicken processing line before the cleaners commenced work; if guarding was the means of prevention, it asked where the guarding should have been. It contended that those and other matters should have been specified in the charge-sheet. Baiada submitted that use of the word 'adequate' to describe the system required merely repeated the statutory language. It relied on the passage from Kirk that we have set out at [43] above.

47 Under ground 3, Baiada argued that the judge did not deal with reasonable practicability at all. It submitted that without knowing the steps that would have made the system adequate it is impossible to determine whether a specified step was reasonably practicable. It contended that that could have been (but was not) done by reference to the matters set out in s 20(2)(a)-(e) of the OHS Act. Nor, it submitted, was it addressed in any other manner. Baiada argued that there needed to be facts alleged about why any particular measure was reasonably practicable. In summary, Baiada submitted that the charge-sheet failed to allege the reasonably practicable steps which it (as opposed to the sub-contractor who employed the deceased cleaner) should have taken to prevent the fatality.

48 It is plain that a charge under s 26(1) of the OHS Act must identify the act or omission which constitutes a contravention of the section. In our opinion, the reasoning in Kirk does not support the proposition that this requires specification of the detailed actions which it was reasonably practicable for the defendant to take. Kirk concerned a trial that had been heard and determined on the basis of charges which were particularised almost entirely in terms of the words of the statute, in circumstances where the onus of proof on the question of reasonable practicability lay on the defendant. Such particulars, as well as failing to inform the defendant of the substance of the charge, amounted in effect to little more than a statement of the statutory offence.

49 References in the plurality's judgment to 'particular measures' need to be read in that light. The fundamental requirement is that the act or omission that constituted the contravention be specified. Analysis of a failure to do so in terms of the need to specify a 'measure' or a 'particular measure' does not say anything as to the degree of particularity required. It serves, instead, to emphasize what is the relevant act or omission which gives rise to the offence, namely the measure or measures which the defendant has failed to take to prevent an identifiable risk eventuating.[45] The convictions in Kirk stemmed from charges which wholly failed to identify any such measure. That sufficed to require the convictions to be set aside. Baiada's submissions sought to attribute too much significance to the plurality's use of the word 'measure'.

50 Equally, to characterize the act or omission constituting the offence as a 'measure' does not deny the possibility, in an appropriate case, of specifying the act or omission by reference to a standard described as 'adequate'. A failure to ensure an adequate system or step to achieve a particular outcome can also be described as a failure to have in place measures sufficient to achieve that outcome. If the outcome is sufficiently particularised, then it will be clear what was the act or omission alleged to constitute the offence.[46] In contrast, if the specified outcome is no more than a recitation of the statute, as in Kirk, describing the required system or step as 'adequate' or 'appropriate' will add nothing.

51 Similarly, for the purposes of the requirement in sch 1 cl 1(b) of the CP Act to give reasonable information as to the nature of the charge, sufficient information may be given about the 'reasonable practicability' ingredient by coupling that term with sufficient particulars of the offending act or omission. If that is done then such a charge alleges that by not doing the act or by not making the omission there was a failure to eliminate or reduce risks to health and safety so far as is reasonably practicable. Additionally, so far as this ingredient is concerned, the requirement in cl 1(a) to state the offence is satisfied where, as here, the charge specifies that an offence has been committed because there has been a failure to ensure, 'so far as reasonably practicable', that the workplace was safe and without risks to health.

52 There can be little doubt that the present charges should not proceed to hearing unless full and proper particulars have been provided. But that does not mean that without complete particulars the charge-sheet is invalid. We accept that it would be insufficient if the charge-sheet merely recited the statutory language without more. In effect, this was the major defect with the charges in the Kirk case. However, that is not what has been done in this case. The charge-sheet specifies that it was the failure to ensure (so far as it was reasonably practicable):

(a) that the chicken processing line was not operating; and

(b) that there was an adequate system to prevent contact with the processing line when it was being cleaned,

that allegedly resulted in a breach of s 26(1) of the OHS Act. That is, there are two alleged omissions on the part of Baiada which have been identified. They are the things that it is alleged Baiada should have done (or the measures it ought to have taken) to comply with its obligations under the legislation.

53 Rather than being of general application, or merely reciting the statutory language, these particulars relate specifically to the identified machinery (that is, the chicken processing line) which is at the heart of the incident in question here. Use of the word 'adequate' lends itself to standards applicable to the maintenance and operation of such machinery, which the VWA can seek to establish, and Baiada to contest.[47] Taken in conjunction with the rest of what is stated in the charge-sheet (including that it was reasonably practicable for the matters identified to have been done) the elements of the charge have been identified. Baiada's alleged failures have

not been left at large. That is, the charge-sheet goes further than simply saying that Baiada failed to have a safe system in place to prevent the fatality. Baiada knows that there are only two matters that it must focus its attention on in defending the allegations - the operation of and the prevention of contact with the machine during cleaning.

54 Having said that, more precise information about what Baiada allegedly should have done to ensure that the processing line was not operating and to prevent contact with it must be known well before a trial. That can and should be done through the provision of further and better particulars. Baiada will then know the boundaries of the case that it must meet at trial. It will have a full opportunity to prepare its defence and to marshal evidence to support it. But for the reasons set out above, it already knows the particulars necessary to give it reasonable information as to the nature of the charge.

55 This appeal concerns the validity of a charge laid by an Inspector of the Victorian WorkCover Authority ('VWA') against the appellant (Baiada Poultry Pty Ltd ('Baiada') for an alleged breach of the Occupational Health and Safety Act 2004 (Vic) (the 'OH&S Act').

56 At common law, the traditional function of a charge was to found the jurisdiction to deal with an alleged offence.[48] Thus a valid charge enlivens the jurisdiction of the court. Subject to any statutory provision that permitted a defect to be corrected, a charge 'should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and

the manner in which it was committed.'[49] If the charge was quashed as invalid, the relevant court did not have the jurisdiction to hear the charge unless the charge was validly amended.

57 For the following reasons, I find that common law principles apply in determining the validity of the charge against Baiada within the statutory framework and that the charge laid should be quashed as insufficient in law and invalid.

58 Baiada conducted a chicken processing factory at Laverton North. Baiada engaged a cleaning contractor, Ecowize Specialised Hygiene Services Pty Ltd ('Ecowize') to clean the chicken processing chain line that was installed at the factory. Ecowize, in turn, engaged Mr Satinder Pal Singh Sarel as an employee, to carry out this task.

59 On 12 August 2010, Mr Singh was killed at the workplace when he was cleaning the chicken processing chain line, when he became entangled in the processing chain line. It was not known how Mr Singh became entangled in the line. The cleaning of the machine and, therefore, Mr Singh's unfortunate accident took place overnight when no production was taking place.

60 The VWA subsequently issued a series of improvement notices in relation to this accident. These notices required amendments to guarding on a variety of parts of the chicken processing line machinery. However, the VWA did not require any guarding in relation to the area where this accident occurred.

61 The first respondent, Inspector Glenister of the VWA,[50] issued four charges for offences against ss 21(1) and 26(1) of the OH&S Act. Pursuant to s 132 of the OH&S Act, such proceedings can only be brought within two years after the offence was committed, or the VWA becomes aware the offence was committed, or at any time with the written authorisation of the Director of Public Prosecutions (no such authorisation has been provided in this case).

62 The four charges brought by Inspector Glenister were filed at the Melbourne Magistrates' Court on 10 August 2012 (just prior to the expiry of the limitation period). On the same day, the charge was sent to Baiada by registered post. For convenience, I will hereafter refer to Inspector Glenister as the VWA.

63 The original charges and particulars served on Baiada included the following charge (charge 4), which is the only charge in issue in this appeal:

Charge 4 s 26(1)

On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) [sic][51] of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as a person who had, to any extent, the management of control of a workplace you failed to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were safe and without risks to health.

Particulars:

(a) Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that ensured that when persons, including Satinder Pal Singh Sarel were cleaning the chicken processing chain line, including associated sprockets, shackles and wash boxes, the chicken processing line was not operating.

(b) Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that prevented persons including Satinder Pal Singh Sarel, coming into contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned.

64 Section 26 falls within pt 3 of the OH&S Act that deals with 'general duties relating to health and safety'. Section 26 of the OH&S Act reads as follows:

1. Duties of persons who manage or control workplaces

(1) A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.

Penalty: 1800 penalty units for a natural person;

9000 penalty units for a body corporate.

(2) The duties of a person under subsection (1) apply only in relation to matters over which the person has management or control.

(3) An offence against subsection (1) is an indictable offence.

Note

However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act 2009).

65 Section 20 of the OH&S Act makes provision for the matters that must be taken into account in determining what is reasonably practicable for the purposes of pt 3 of the Act and the regulations, and relevantly for this case, s 26(1), as follows:

20 The concept of ensuring health and safety

(1) To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person -

(a) to eliminate risks to health and safety so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.

(2) To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety -

(a) the likelihood of the hazard or risk concerned eventuating;

(b) the degree of harm that would result if the hazard or risk eventuated;

(c) what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

(d) the availability and suitability of ways to eliminate or reduce the hazard or risk;

(e) the cost of eliminating or reducing the hazard or risk.

66 Charges were also brought against Ecowize, but not under s 26. This appeal does not relate to the charges against Ecowize.

67 Baiada applied for the charges, including charge 4, to be struck out, on the basis that they disclosed no offence and that they could not be amended under s 8(4) of the Criminal Procedure Act 2009 ('CPA').

68 The learned magistrate hearing the matter ruled that each of the VWA's charges failed to specify one or more of the essential factual elements of the offence (the first ruling). The magistrate then requested further submissions from the parties about the court's power to amend the charges, since by that time the limitation period had expired.

69 The VWA applied to amend the particulars of the charges. The proposed amendments to charge 4 read as follows (with relevant additions underlined, and deletions struck out):

Charge 4 s26(1)

On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) [sic][52] of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as a person who had, to any extent, the management of control of a workplace you failed to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were was safe and without risks to health.

Particulars:

1. Baiada Poultry Pty Ltd (ACN 002 925 948) ('the accused'), at all material times, conducted a business undertaking at 15-17 Pipe Road, Laverton North ('the workplace').
2. In August 2010, Ecowise Specialised Hygiene Services Pty Ltd (ACN 096 111 689) ('Ecowise') was contracted by the accused to provide cleaning services at the workplace.
3. The accused had, to an extent, management or control at the workplace with respect to the chicken processing chain line while cleaning was being undertaken by Ecowise.
4. Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that ensured that when persons, including Satinder Pal Singh Sarel were cleaning the chicken processing chain line, including associated sprockets, shackles and wash boxes, the chicken processing line was not operating, by:

Ensuring that the chicken processing line was tagged and locked out before any cleaning commenced and remained so throughout the cleaning process.

1. Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that prevented persons including Satinder Pal Singh Sarel, coming into contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned, by:

Providing screening or guarding to prevent entanglement in the chicken processing line.

70 On the amendment application, the learned magistrate ruled (the second ruling) that:

(a) each of the four charges could not be amended in accordance with the documents headed 'Draft Amendment to Particulars' pursuant to s 8(4) of the CPA.

(b) each of the four charges laid by the VWA against Baiada did not provide reasonable information as to the nature of the charges to comply with sch 1 of the CPA and were ineffective and a nullity.

71 The VWA sought judicial review of the magistrate's second ruling, refusing leave to amend, by a judge of the Trial Division. Baiada submitted to the learned trial judge hearing the review that the magistrate's first ruling was not relevant, on the basis that the VWA's application only concerned the magistrate's second ruling as to the amendment of the charges rather than their validity.

72 The trial judge held that the reasoning in the first ruling underpinned the magistrate's second ruling, as to whether 'the charge-sheet before the amendment sufficiently disclosed the nature of the offence'.[53]

73 On the application for judicial review, Baiada contended that each of the four charges disclosed no offence. The learned trial judge upheld the magistrate's decision that charges 1, 2 and 3 were invalid and ineffective but found (contrary to the learned magistrate's decision) that charge four was valid and effective.

74 The question of amendment does not arise in this appeal. It was accepted by the parties in this court that the issue of amendment was subject to a threshold issue as to whether the learned trial judge erred in finding that charge 4 was valid.[54] If the charge was valid it could be amended. If the charge was invalid it could not be amended, as the new charge would fall outside the limitation period. This court's decision, therefore, turns on the validity of charge 4 rather than whether the charge could be amended pursuant to s 8(4) of the CPA.

75 Section 5 of the CPA provides that a criminal proceeding may be commenced in three ways. The first way, which is contained in s 5(a), is by filing or signing a charge-sheet in accordance with s 6.

76 Sections 6, 8 and 9 are in pt 2.2 of the CPA, which is headed 'Charge-Sheet and Listing of Matter', and states in relevant parts:

1. Commencement of a criminal proceeding in the Magistrates' Court

(1) A criminal proceeding is commenced -

(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; ...

(3) A charge-sheet must -

...

(c) comply with Schedule 1.

8 Order for amendment of charge-sheet

...

(4) If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if -

(a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and

(b) the amendment does not amount to the commencement of a proceeding for a new offence; and

(c) the amendment will not cause injustice to the accused.

9 Errors etc. in charge-sheet

(1) A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1 ...

Schedule 1 Charges on a charge-sheet or indictment

1 Statement of offence

A charge must -

(a) state the offence that the accused is alleged to have committed; and

(b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.

2 Statement of particulars

(1) Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.

(2) If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.

3 Statutory offence

(1) In this clause -

statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.

(2) For the purposes of clause 1 (a), a statement of a statutory offence is sufficient if it -

(a) identifies the provision creating the offence; and

(b) describes the offence in the words of the provision creating it, or in similar words.

...

4 Exceptions, exemptions etc.

Any exception, exemption, proviso, excuse or qualification need not be specified or negatived in a charge.

78 I consider below whether the CPA removes or amends the common law rules on the validity of a charge.

79 The learned trial judge held that charge 4 was valid. His Honour concluded that the particulars to charge 4 prescribing an 'adequate system' in relation to the matters the subject of the allegations provided a 'readily available standard' to give meaning to that expression. His Honour said as follows:

The VWA contended that the Magistrate erred in deciding that charge 4 was not valid. That contention was contained in grounds A8 and A9. I conclude that the VWA has established that error.

Read fairly, charge 4 alleges that Baiada had, to an extent, the management and control of a workplace at Laverton. The particulars, when read with charge 4, indicate that the control extended to the chicken processing chain line. They also indicate that the failure to ensure, so far as was reasonably practicable, that the workplace, being the chicken processing chain line, was safe and without risks to health, consisted in not having an adequate system in place to ensure that when persons were cleaning the chicken processing chain line and associated equipment, the line was not operating. In this instance, the particulars provided 'a readily available standard' to give meaning to the expression 'adequate system'.

The question of whether the VWA can establish the allegation that Baiada had control of part of the workplace and whether as far as was reasonably practicable the workplace was safe and without risks to health are matters to be determined at the hearing of charge 4.

I have found charge 4 valid because, unlike charge 1, it does not have as an essential element that Baiada had the duties of an employer to Mr Singh. It does have as an essential element that the person, here Baiada, did have to an extent the management or control of a workplace. The words of charge 4 contain those allegations. The particulars to charge 4 specify the matters over which it is alleged that the control existed, namely the operation of the chicken processing chain line. I do not consider that any more was required for a valid charge. I express no opinion about whether a request for further particulars might be made by Baiada.[55]

80 It is apparent from the passage above that his Honour's reasons give express consideration to the phrase 'adequate system' in relation to particular (a) (that is, ensuring that the chicken processing line was turned off while it was being cleaned), but not in relation to particular (b).

81 I consider below the learned judge's reliance on a 'readily available standard' in determining whether charge 4 constituted a valid charge.

82 The OH&S Act imposes duties on employers or controllers of workplaces to employees, contractors and others. I have already set out ss 20 and 26 above.

83 Section 2 of the OH&S Act sets out the objects of the Act as follows:

2 Objects

(1) The objects of this Act are -

(a) to secure the health, safety and welfare of employees and other persons at work; and

(b) to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and

(c) to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and

(d) to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards -

having regard to the principles of health and safety protection set out in section 4.

(2) It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.

84 Section 4 provides for the principles of health and safety protection:

4 The principles of health and safety protection

(1) The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.

(2) Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.

(3) Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.

(4) Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.

(5) Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.

85 Importantly for the purpose of this appeal sub-s (3) refers to 'all reasonably practicable measures' to ensure health and safety at workplaces. As discussed below, Baiada says that charge 4 does not specify the reasonably practicable measures it is alleged that Baiada failed to take to ensure an 'adequate system' was in place as alleged in particulars (a) and (b).

86 As noted above, s 132 provides for a limitation period for prosecutions of within two years after the offence is committed or the VWA becomes aware the offence was committed. The prosecution in this case was launched the day before the limitation period expired.

87 In considering the necessary elements of a valid charge, the Australian authorities have cited with approval Smith v Moody,[56] where the Kings Bench Division considered whether a conviction adequately set out the offence of which the defendant was convicted.

I think that s 39 of the Summary Jurisdiction Act, 1879, which provides that it is sufficient to describe the offence in the words of the statute creating the offence, cannot be supposed to have been intended to break down the very important rule which has prevailed now for at least two hundred years in the administration of justice with respect to the sufficiency of particulars in a conviction. I do not think for a moment that it was intended to relieve persons who had to draw convictions from inserting anything that was necessary as an ingredient of the offence of which the particular defendant has been found guilty. When one comes to the description of the offence itself, then it is quite sufficient if it is described in the terms of the statute, however general that may be. At the same time the old rule must prevail, that whatever is necessary to shew that the person convicted has done something which brought him within the words of the statute must still be specified.[57]

... I can well understand the reason of the necessity for holding magistrates and other tribunals to strictness in this matter of describing the elements in an offence, because, if laxity is allowed in the statement of the offence in the summons or conviction, it is a great encouragement to those who have to deal with such matters to take refuge in generalities, and not to apply their minds to the specific question.

90 Channell J expressed similar views but added that the conviction 'must be as precise as the summons'.[59] After referring to s 39, his Lordship said that he did not think 'the section in any way dispenses with the usual necessity of specifying time and place and matter in the way in which it has been hitherto specified'. His Lordship continued:

if there were a charge against a man - either by an indictment or by summons, made in the vague way in which this conviction is drawn up ... it does seem to me that that would be insufficient. ...

There must be facts relating to the particular matter, such as the time when and the manner in which the offence was committed, which would have to be inserted in the charge, and the omission of which cannot be cured by stating the offence in the words of the statute.[60]

91 Lord Alverstone CJ expressed a similar view to that of Wills and Channell JJ.

92 In Johnson v Miller,[61] the High Court (Dixon, Evatt and McTiernan JJ, Latham CJ dissenting) dismissed a complaint under s 209(1) of the Licensing Act 1932-1935 (SA), on the basis that it was defective and prejudicial to the defendant because it failed to identify which of the many potential offences the prosecution had previously referred was the offence being prosecuted.

93 The complaint involved persons being on hotel premises after hours. The prosecution had previously alleged that up to 30 people had been on the premises after hours. The prosecution refused to furnish further particulars to show which of the 30 men originally in question was the man whose emergence from the hotel after hours was the subject of the complaint.

94 The defendant was entitled to prove certain defences that justified the presence of a person on the hotel premises after hours under 'exclusionary provisions'. Dixon J referred to this entitlement to a defence under the exclusionary provisions as 'an added reason' (rather than the only reason) that the person who was allegedly in the hotel should be 'unmistakably identified'.[62]

95 In relation to the inadequacy of the charge, Dixon J held as follows:

In my opinion [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled 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.[63]

If in the absence of [amendment or further particulars], the actual application of the complaint to the known or alleged circumstances is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and distinguish it from other like occasions, transactions or occurrences indifferently answering the description contained in the complaint, then I think there is a defect in the complaint within the meaning of sec. 182. Although on its face the complaint may have appeared sufficient, yet when applied to the facts it is found to contain a latent ambiguity, and this, in my opinion, is a defect in particularity.'[64]

96 Importantly, Dixon J expressed a view similar to that expressed by the Kings Bench Division in Smith v Moody (which Dixon J cited with approval) that a statement of an offence itself must be precise lest 'laxity' in that statement should allow proof of the case to 'take refuge in generalities'.[65]

97 When dealing with the statutory requirements of a charge, Dixon J said that the provision in the relevant Justices Act 1921-1936 that provided that a description of the offence in the terms of the relevant provision of the Licensing Act should be sufficient at law 'only relates to the nature of the offence and does not dispense with the necessity of specifying the time place and manner of the defendant's acts or omissions (Smith v Moody)'.[66]

98 In John L, the High Court considered the validity of an information alleging that the defendant had breached s 32(1) of the Consumer Protection Act 1969 (NSW) (which provided that a person who, to promote the supply of goods or services, published a statement 'to his knowledge false or misleading in any material particular' committed an offence). The 'material particular', in which the published statement was allegedly false or misleading, was not disclosed in the information. The majority (Mason CJ, Deane and Dawson JJ) held that the information was defective. The majority said that the traditional function of an information was to found jurisdiction. They said:

The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both 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 is called upon to meet: 'an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence.'[67]

99 The majority said it was not necessary to consider the statutory provisions that seek to render summary proceedings less open to technical objections as they did not apply to the information before the court. In doing so the majority cited with approval Smith v Moody and Johnson v Miller. The majority continued:

That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.[68]

100 The majority then addressed whether there was any verbal formula that could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. The majority said there was none:

In De Romanis v Sibraa, Mahoney J.A. correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented:

In Johnson v Miller, Dixon J. saw the decision in Smith v Moody as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J. referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty Ltd; Re Mason.

....

These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.

If an information is invalid for the reason that it fails sufficiently to identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement, such as that contained in s.56(4) of the Consumer Protection Act, that proceedings be commenced by information since, as a matter of ordinary construction, such a requirement can only be satisfied by a valid information.[69]

101 The VWA relies on the above passages from De Romanis v Sibraa[70] to emphasise the distinction between the essential elements of an offence (that must be contained in the charge) and matters which are more properly the subject of a request for further and better particulars or evidence at trial.

102 The authorities establish that the common law requirement that a valid charge must contain the essential legal and factual elements of the offence is not entirely at large, but is to be viewed from the point of view of a reasonable defendant. In Director of Public Prosecutions v Kypri,[71] Nettle JA (as his Honour then was) stated that:

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 their 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.[72]

103 In that case, the Court of Appeal was concerned with the validity of a charge under s 49(1)(e) of the Road Safety Act 1986 which failed to identify the particular subsection of s 55, which created the obligation the subject of the offence under s 49(1)(e). The court found that the identification of the subsection was an essential element of the offence which it was therefore necessary for the charge to identify. The court held that the charge was invalid but allowed the appeal, remitting the charge to the Magistrate for reconsideration of whether it could be amended.

104 Nettle JA reasoned as follows in relation to the validity of the charge:

The validity of a charge is to be determined according to the contents of the summons and charge and a defendant is entitled to insist upon a valid charge before the matter proceeds to evidence.[73]

105 Nettle JA said of the relationship between the charge and the ultimate proof of the case:

It is true that the validity of a charge must be judged on the basis only of what appears from the face of the charge and summons. But that is so because the charge defines the issues and thus the evidence admissible in the litigation.[74]

106 The position of a 'reasonable defendant' as regards comprehension of a charge was considered by Redlich J (as his Honour then was) in Ciorra v Cole.[75] That case concerned whether a charge for a speeding offence was invalid on the basis, inter alia, that the offence named repealed traffic legislation and failed to expressly state that the defendant had exceeded the speed limit (although it did state the applicable speed limit and the limit at which the defendant was travelling). Redlich J was primarily concerned with whether the charge could be amended but said, in relation to whether the charge sufficiently disclosed an offence:

There is considerable force in the submission of the respondent that an allegation that an offence has been committed by driving in excess of a particular nominated speed implies that the nominated speed is the speed limit applicable. Interpreting the charge in the manner in which 'a reasonable defendant would understand it, giving reasonable consideration to the words of the charge, in their context', leaves no doubt as to what the draftsman intended.[76]

107 Redlich J's reasons were referred to and adopted by J Forrest J in Director of Public Prosecutions v Kirtley.[77] In that case, J Forrest J considered whether the essential ingredients of a speeding offence were disclosed in the charge, notwithstanding that the charge referred to the speed limit applicable to the stretch of road, rather than the defendant driver. J Forrest J decided that charge contained the essential elements of the offence and was reasonably apparent to the defendant, noting that:

on any sensible interpretation the charge gave [the defendant] sufficient information to know that it was his driving in relation to an applicable speed limit which constituted breach of the Rule. The inelegant drafting of the charge did not, in my view, obscure the core elements of the offence.[78]

108 In Chugg v Pacific Dunlop Ltd,[79] the High Court addressed the issue of whether the informant or the defendant in a prosecution under the Occupational Health and Safety Act 1985 (Vic) ('OH&S Act 1985') bore the onus of proof on the question of reasonable practicability in a prosecution under s 21 of the OH&S Act 1985.

109 Section 21(1) of the OH&S Act 1985 provided that '[a]n employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.' Sub-section (2) provided:

Without in any way limiting the generality of sub-section (1), an employer contravenes that sub-section if the employer fails -

(a) to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health.

'Practicable' was defined as 'practicable having regard to - (a) the severity of the hazard or risk in question; (b) the state of knowledge about the hazard or risk and any ways of removing or mitigating that hazard or risk; (c) the availability and suitability of ways to remove or mitigate that hazard or risk; and (d) the cost of removing or mitigating that hazard and risk.'

110 The Court (Brennan, Deane, Dawson, Toohey and Gaudron JJ) held that in a prosecution under s 21 the onus of proof on that question of practicability was on the informant.[80]

111 In coming to that conclusion, Dawson, Toohey and Gaudron JJ, in a joint judgment, held that there was one matter that told decisively against a construction of s 21 that would place the onus of proof in relation to practicability on an employer. Dawson, Toohey and Gaudron JJ held that the obligation imposed by s 21(1) was quite general. Their Honours said that 'as the definition of 'practicable' showed, the question of practicability was one which must be answered by a consideration of 'the means by which a risk can be removed or mitigated'.[81]

112 After considering circumstances where a specific requirement or procedure was specified in an offence, the majority turned to the circumstances where a general obligation was imposed. They said:

But where a general obligation is imposed, the means which might practicably be adopted are confined only by the nature of the risk or hazard. That is because, as was pointed out in Gibson v. British Insulated Callenders Construction Co. per Viscount Dilhorne, if it were established that one or even several methods were impracticable, it would not follow that the workplace was as safe as practicable_. If the onus is on an informant, the issue is confined by the means which the informant claims were practicable in the circumstances. If the onus is on a defendant, the issue, if confined at all, is confined only by the 'means of making the place safer which the ingenuity of ... counsel can suggest' in the course of cross-examination:_ Gibson_, per Lord Diplock._ It is impossible to read into s.21 of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination.[82]

113 The Court was of the opinion that the informant was obliged to identify the particular 'means' which the informant alleged that it was practicable to adopt to achieve the health and safety of the employee in the workplace.

114 The OH&S Act 2004 has similarities to the OH&S Act 1985. In particular, s 20(2) of the OH&S Act 2004 referred to above, provides a similar meaning to 'reasonably practicable' as applied to 'practicable' in the OH&S Act 1985, including the likelihood of the hazard or risk concerned eventuating (1985 - the severity of the risk); what the person concerned knows about the hazard or risk (1985 - the state of knowledge about the hazard or risk); the availability and suitability of ways to eliminate or reduce the hazard or risk (1985 - remove or mitigate that hazard or risk); and the cost of eliminating or reducing the hazard or risk (1985 - the cost of removing or mitigating that hazard and risk).

115 Although Chugg was not dealing with the essential elements of a valid and effective charge, it does support the proposition that a valid charge should identify the 'means' that were reasonably practicable to ensure that an 'adequate system' was in place to achieve the purpose or consequence identified in the charge and that a failure to so specify would render the charge invalid, particularly where that element is the foundation of the charge.

116 As Dixon J said in Johnson v Miller (as quoted in Kirk v Industrial Court of New South Wales,[83] discussed below) in 'a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge.'[84]

117 This proposition that a valid charge should include the means that are alleged to be reasonably practicable is also supported in Slivak v Lurgi (Australia) Pty Ltd,[85] where the High Court considered a civil action by an employee ('Slivak') against a company ('Lurgi') that was contracted to design and implement a fume extraction system.

118 Slivak alleged, inter alia, that Lurgi breached its statutory duty under s 24 of the Occupational Health, Safety and Welfare Act 1986 (SA) which provided that a person who 'designs, manufactures, imports or supplies any plant for use at work shall ... ensure so far as is reasonably practicable that the plant is designed and constructed so as to be safe' and so as to ensure that those who use it will be safe from injury and risks to health.[86] Slivak alleged that Lurgi had the onus of proving that it did comply with this clause.

119 The case did not concern the validity of a charge, but it is instructive in relation to the concept of 'reasonable practicability' and lends further support to the view that the concept of reasonable practicality must be addressed by precise reference in the charge to the means that are alleged to be reasonably practicable.

120 The High Court in Slivak found that the onus was on the employee Slivak to prove the breach under the relevant sections of the statute. Callinan J (with whose analysis the rest of the court agreed) noted that clear words would be needed for the onus of proof to shift from the defendant to the plaintiff.[87]

121 Callinan J referred to Chugg, noting that that case had effectively overruled[88] previous authority to the effect that '[based on policy considerations], the legislature did not intend to impose on "an injured worker, or, if deceased, his or her next of kin, the obligation to prove with particularity the manner in which the employer should have employed reasonably practicable means to keep and make the workplace safe".'[89]

122 Gaudron J made the following observation in relation to the notion of 'reasonable practicability':

The words 'reasonably practicable' have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words 'reasonably practicable' are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

• the phrase 'reasonably practicable' means something narrower than 'physically possible' or 'feasible';
• what is 'reasonably practicable' is to be judged on the basis of what was known at the relevant time;
• to determine what is 'reasonably practicable' it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

For present purposes, what is reasonably practicable has to be considered at the time the tower was designed. Moreover, when considering what is reasonably practicable for the purposes of s 24(2a)(a) of the Act, it is relevant to consider that, in the ordinary course, the designer of a structure will have little or no control with respect to the work practices or the workmanship of those who undertake its construction. And it is also relevant to consider what may reasonably be expected of those persons. However, as will later appear, these are not the sole considerations. [90]

123 Callinan J's statements regarding reasonable practicability indicate that the concept requires that specific consideration should be given to the means which it was alleged were reasonably practicable to be taken under the relevant section having regard to 'expense, time and trouble':

The phrase 'reasonably practicable' has been construed in the United Kingdom. In Marshall v Gotham Co Ltd, Lord Oaksey said: 'what is 'reasonably practicable' depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved.'

Lord Reid put the matter this way:

I do not find it helpful to consider whether this statutory duty is in every case the same as an employer's common law duty. I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable.

Any structure that can be designed to be erected and to function properly, and in an absolutely safe manner may be described as being capable of being designed as a matter of practicability. But the test is not one of mere practicality: it is one of 'reasonable practicability'. The reference to disproportionality and risk, by Lord Oaksey, and to what might be unreasonable in the whole circumstances by Lord Reid, involves, and in my respectful opinion, rightly so, the importation of notions of expense, time and trouble, and some evaluation by the designer of the extent to which a reasonable fabricator and erector might or might not depart from the design and erection procedures.[91]

124 The observations of the High Court in Slivak lend support to the proposition that the condition of reasonable practicability in s 26 makes it the 'foundation of the charge'[92] and thus an essential element of the offence that specific means which were reasonably practicable were not taken. The High Court indicates that reasonable practicability will be assessed by reference to 'expense, time and trouble' of the 'means' alleged. Although the reference to 'expense, time and trouble' would be the subject of evidence at trial rather than being included in the charge, the need to prove these matters presupposes that the charge has identified precise 'means' which can be assessed according to the 'expense, time and trouble' involved.

125 In Kirk, the High Court considered in detail the elements of a valid charge under the New South Wales equivalent of the OH&S Act.

126 The appellant company (the Kirk company) was the owner of a farm in NSW. Mr Kirk was a director of that company but employed a Mr Palmer to operate the farm.

127 An all-terrain vehicle ('ATV') was purchased by the company on Mr Palmer's recommendation. In 2001, Mr Palmer used the ATV to deliver three lengths of steel to the back paddocks of the farm where contractors were working, moving (apparently inexplicably) along the side of a hill and off the established road. Mr Palmer was killed when the ATV overturned on that hill.

128 The Kirk company and Mr Kirk were both charged under ss 15 and 16 of the OH&S Act in NSW,[93] which provided, relevantly:

Section 15(1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees.

129 Section 15(2) provided examples of what may amount to a contravention of that obligation, as follows:

(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:

(a) to provide or maintain plant and systems of work that are safe and without risks to health,

(b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,

(c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees,

(d) as regards any place of work under the employer's control:

(i) to maintain it in a condition that is safe and without risks to health, or

(ii) to provide or maintain means of access to and egress from it that are safe and without any such risks,

(e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or

(f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:

(i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or

(ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used.

130 Section 16 referred to the obligations of an employer to persons present at the workplace as follows:

Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.

131 This provision is similar to s 26 of the OH&S Act, which provides that:

A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.

132 Proceedings relating to ss 15 and 16 were to be commenced by an application for an order under s 4(1) of the Summary Jurisdiction Act 1879. The application to the Industrial Court alleged the following offence by the Kirk company under s 15(1):

that the Defendant, on 28 March 2001, at 'Mount Hercules Farm' ... a work place operated by the Defendant FAILED TO ensure the health, safety and welfare at work of its employees, in particular [Palmer], contrary to 15(1) ...[94]

133 Particulars of the offence were also given as follows:

The particulars of the offence are that the defendant failed to:

1. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle ('ATV');
2. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle ('ATV');
3. to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health;
4. ensure that the Polaris All Terrain Vehicle ('ATV') was only operated by persons with appropriate training.
5. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.[95]

134 The statement of the offences concluded with the allegation that, as a result of the Kirk company's failures, its employees, in particular Mr Palmer, were 'placed at risk of injury' and that Mr Palmer had suffered fatal injuries.

135 The second offence, under s 16(1) (in respect of contractors working on the farm when Palmer was killed) read,

that 'the Defendant, being an employer, on 28 March 2001, at "Mount Hercules Farm" ... a work place operated by the Defendant FAILED TO ensure that non-employees ... were not exposed to risk of injury arising from the conduct of the its undertaking while they were at "Mount Hercules Farm", ...'[96]

136 Particulars of the offence were also given as follows:

The particulars of the charge are that the Defendant failed to:

1. ensure that persons not in the employer's employment were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work in relation to the operation of the Polaris All Terrain Vehicle ('ATV');
2. ensure that the Polaris All Terrain Vehicle ('ATV') was only operated by persons with appropriate training; and
3. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.[97]

137 It was alleged that the four contractors then engaged by the Kirk company were exposed to risks to their health or safety, as a result of the Kirk company's failures. Mr Kirk was charged with the same offences as the Kirk company and convicted in the Industrial Court.

138 Both sets of particulars reflected the wording of the OH&S Act of NSW (ss 15(2) and 16, respectively).

139 The Court of Appeal of the Supreme Court of New South Wales refused orders in the nature of certiorari to quash the orders for the convictions of the appellants for the relevant offences. Mr Kirk and the Kirk company appealed to the High Court of Australia seeking certiorari to quash their convictions in the Industrial Court.

140 The High Court (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) allowed the appeal and ordered that the convictions should be quashed. The majority reasons of French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ are instructive (if not determinative) on the issue of the specificity required in a charge for an offence such as that created by s 26.

141 Their Honours set out the relevant legal principles as follows:

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. In John L Pty Ltd v Attorney-General (NSW), 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. 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. 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'. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify 'the time, place and manner of the defendant's acts or omissions'. McTiernan J referred to the requirements of 'fair information and reasonable particularity as to the nature of the offence charged'.[98]

142 The majority interpreted the relevant provisions of the OH&S Act of NSW as requiring that the 'employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks', noting that s 16 (relating to non-employees, like s 26 in this appeal) 'required similar considerations and measures to be undertaken with respect to non-employees present at the workplace'. It is clear that what 'measures' are appropriate to be taken will depend on a range of factors peculiar to the circumstances.[99]

Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. That those provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure, is confirmed by references in ss 15 and 16 to what constitutes an offence. Sections 15(4) and 16(3) referred to 'the act or omission concerned' which 'constituted a contravention' of s 16 or s 15 respectively.[100]

144 After outlining that the nature of the relevant offences, the court said:

A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.[101]

145 The court ultimately held that the statement of offences[102] 'did little more than follow the words of that sub-section':

The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.[103] (emphasis added)

146 Although the High Court in Kirk dealt with the different question of whether convictions should be quashed, the court indicated, without deciding the matter, that the charges in that case should not have proceeded with the inadequate details they contained:

No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act. Section 4(1) of the Summary Jurisdiction Act permitted the making of an order '[u]pon an application being made ... in accordance with the rules' and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as 'an administrative commission of inquiry' rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences.[104]

147 The majority referred[105] to Chugg as authority for the proposition that provisions drawn in the manner of s 26 'place[s] the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable'.[106]

148 In John Holland Pty Ltd v Industrial Court of New South Wales,[107] the reasoning of Spigelman CJ in the New South Wales Court of Appeal (with whom Beazley JA and Giles J agreed) was based on an application of the principles in Kirk.

149 In that case, charges were accompanied by more extensive sub-particulars, inter alia, regarding a failure to provide an 'adequate system of ground support'. In light of detailed particulars which gave more content to the reference to an 'adequate system of ground support', Spigelman CJ found that the relevant charges did not fall foul of Kirk:

In my opinion, the contravention identified as (b) with respect to the premises complies with the requirements of the reasoning in Kirk. As I have indicated the risk is identified in (a) of the particulars. The act or omission said to constitute a contravention is also identified in the chapeau to particular (b), namely, the failure to provide an 'adequate system of ground support in the down drive to support the tunnel'. The further particulars and the sub-particulars identify a range of facts and matters each of which answer the description of a 'particular measure' which, in one respect was an act ('deviation from design') and in other respects, constituted omissions alleged to have been made by the applicant.

Where words of general application are used such as 'adequate system of ground support' or 'adequate system of communication' they may give rise to an application for further better particulars. However, in this context, such terminology does not fail to identify a 'particular measure' within the reasoning of Kirk. What is alleged in each respect against the applicant in terms of a failure to take specific steps is clearly pleaded. What is an 'adequate system of ground support' is identified in the following further particulars, ie, compliance with the original design, thicker shotcrete, effective rock bolding. Similarly, what is an 'adequate system of communication' is also specified in the sub-particulars on benching, rockbolt failures, etc.[108]

150 In John Holland, Giles JA addressed a challenge by the defendants to a charge where it was alleged that there was a failure to take 'adequate' steps to avoid a risk to health. The complaint being that, in accordance with Kirk, what was alleged to be adequate should have been spelt out in the charge. Giles JA said:

The submissions of both John Holland and Parsons Brinckerhoff considerably relied on 'adequate', 'adequately' and in the case of Parsons Brinckerhoff 'sufficiently' in the statements of the charges, as not identifying the acts or omissions of the applicants and specifying the particular measures which each should have taken. The applicants particularly relied on the view of the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 that the fourth particular, referring to operation of the ATV by persons 'with appropriate training', did not identify what should have been done to avoid exposure to risk from the use of the ATV.

'Appropriate' in Kirk v Industrial Court of New South Wales was a word without a readily available standard, and gave no assistance in identifying what was not done which if done might have prevented the accident. Other than appropriateness for safe use, at an uninformative level of generality, it had little content.

'Adequate', 'sufficient' and cognate expressions in the present cases readily lend themselves to standards found in tunnelling practice and avoidance of collapses such as that which occurred. It is not the case that words in the statement of an offence of the kind complained of necessarily mean that the act or omission on which the prosecution relies, and what the accused should have done, is not identified. Whether the shotcrete was of 'adequate' thickness (John Holland para (c)(ii)), for example, is a matter illuminated by expert evidence of tunnelling practice. It is a fact for the prosecution to establish, and one which the applicants can contest.

A cautionary illustration may be found in Downey v Acting District Court Judge Boulton [No 5] [2010] NSWCA 240, decided on 15 September 2010 after the hearing in the present cases.

The offences with which Ms Downey was charged included an offence under s 8(1) of the Prevention of Cruelty to Animals Act 1979, which states an offence of failing to provide an animal with food, drink or shelter 'which ... is proper and sufficient'. The court attendance notice used the terms of s 8(1), with a period and place of the offence and particulars that a cow was 'without proper and sufficient foot for over a period of about 4 weeks which contributed to its poor body condition'. Basten JA, with whom Allsop P and Macfarlan JA agreed, said:

48 The applicant's complaints in respect of this charge were that it failed to specify that which was not supplied, contenting itself with the words of the section ('food which is proper and sufficient') and, as a consequence, failed to identify that which it was reasonably practicable to provide. The applicant sought to draw an analogy with the circumstances in Kirk.

49 The analogy with Kirk is superficial only. Further, care must be taken in seeking to rely upon supposedly analogous factual situations in a higher court, as giving rise to a precedent, rather than the precedent being found in the legal principle to be applied in assessing such facts. In Kirk, there were real issues as to what steps the employer should have taken to ensure the safety of its experienced farm manager who was driving the all-terrain vehicle (the ATV). Not only did the uncertainty as to the prosecution case make it (at least) difficult for the defendant to identify whether the relevant steps would have been reasonably practicable, but it also created a difficulty in establishing a causal link between the relevant omissions and the accident. For example, it might have been necessary to ask whether the training which had not been provided would have taught the deceased anything about the vehicle which he did not already know. In the present case, the charge made clear that that which had not been supplied was proper and sufficient food. It was further alleged that that omission contributed to the poor body condition of the animal which, at least by necessary inference, constituted an allegation that whatever had been provided was not both 'proper and sufficient'.

50 It followed that the essential elements of the offence were addressed in the charge. The nature of the feed required by cattle, and its availability in the area at the relevant time, would have been matters for evidence. If particulars had been sought, a court may have directed the prosecutor to give them. None were sought, either in the Local Court or the District Court.

The circumstances were different from the present cases. The point made is that it must be asked in each case whether the charge sufficiently makes known what the accused failed to do and should have done.

As the Chief Justice says, the use of general expressions may give rise to an application for further and better particulars. There may be occasion for the applicants to ask for and the prosecution to provide further particulars of the prosecution's case, for example, of how thick the shotcrete should have been and why. But that does not mean that the statements of the charges failed to charge an offence or state the nature of the offence, or to identify offending conduct.[109]

151 I have quoted this case at some length, as the learned judge below relied on the concept of 'readily available standard' as referred to and discussed by Giles JA in this passage, in upholding the validity of charge 4, which I discuss below.

Do the common law principles on valid charges still apply?

152 In New South Wales, s 11 of the Criminal Procedure Act 1986 provided that the description of any offence in the words of an Act creating the offence 'is sufficient in law'. The High Court in Kirk observed that in Smith v Moody[110] it was held that such a provision did not dispense with the common law. The High Court noted that in Ex parte; Re Buckley,[111] Jordan CJ had doubted earlier authorities such as Smith v Moody. The High Court, however, said that:

in Johnson v Miller, Dixon J appears to have applied the common law rule and to have held that a statutory provision like that made by s 11 of the Criminal Procedure Act 1986 'relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts of omissions.'[112]

153 In John L,[113] Brennan J said that it was unnecessary to consider further the operation of provisions similar to s 55 of the Justices Act considered in Johnson v Miller for no such provision was relied on in the case before him.

154 Nevertheless, in Kirk the High Court applied the common law rule as to the validity of a charge whilst acknowledging s 11 of the Criminal Procedure Act 1986.

155 In my opinion, consistently with the approach of Dixon J in Johnson v Miller, the requirement in the CPA that a charge must state the offence that 'the accused is alleged to have committed; and contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge' should not be construed as requiring any less information than that required at common law. That is, notwithstanding that s 3, sch 1 to the CPA provides that a statement of a statutory offence is sufficient if it 'identifies the provision creating the offence' and 'describes the offence in the words of the provision creating it, or in similar words'.

156 The principle of legality acknowledged by the High Court in Momcilovic v The Queen[114] would require express language to deprive a citizen of its common law right to be adequately informed of the alleged offence of which the citizen has been charged.

157 The authorities examined above, establish the following relevant principles:

(a) at common law, the traditional function of the charge was to found the jurisdiction of the court to deal with the alleged offence;[115]

(b) in more recent times, the charge is also to inform the defendant of the substance of the offence which he is called on to meet;[116]

(c) schedule 1 of the CPA that specifies what a charge must state does not obviate the common law requirements as to a valid charge;[117]

(d) a valid charge must specify all the elements of the offence that the defendant is alleged to have committed;[118]

(e) the charge must specify the facts relied on to make out the legal elements of the charged offence, including the particular facts, matters or things alleged as the foundation of the charge;[119]

(f) an invalid charge should be quashed by the Court unless validly amended;

(g) information on how the case is to be proved is not required to be included in the charge, but the facts matters or things to be proved must be included in the charge; and

(h) under s 26(1) of the OH&S Act an essential element of the charge is to allege the means by which it is alleged it was reasonably practicable for the defendant to what do it is alleged he failed to do.[120]

158 The VWA appeals the decision of the learned trial judge on the basis that his Honour erred in law when he found charge 4 effective on three grounds:

Ground 1: The charge failed to identify the essential factual elements for the assertion that Baiada had control of a 'workplace' (as required by s 26(1) of the OH&S Act) or a 'matter' under s 26(2);

Ground 2: The particulars to the charge failed to identify the measure or measures which Baiada should have taken to ensure that it had an 'adequate system' to stop the chicken processing line from operating/to prevent people coming into contact with the chicken processing line during cleaning;

Ground 3: The charge and particulars failed to identify the essential factual elements for the proposition that it was reasonably practicable for Baiada to implement the purported measures to ensure the 'adequate systems' alleged in Ground 2.

159 The charge failed to identify the essential factual elements for the assertion that Baiada had control of a 'workplace' (as required by s 26(1) of the OH&S Act) or a 'matter' under s 26(2).

160 Baiada contends that charge 4 needed to specify, not only that Baiada had management and control of a 'workplace' (as required by s 26(1)) but also the 'matter' over which the appellant had management or control.

161 Baiada contended that this was a separate element of the offence under s 26(2) but that the learned trial judge conflated the two elements under ss 26(1) and 26(2).

162 In my view, it was not necessary for the charge to separately and expressly specify that the chicken processing line was the matter within the company's management and control under s 26(2). It can readily be inferred that charge 4 relates to Baiada, insofar as it had management and control of, not only the workplace, but the chicken processing line within it. I find that the learned judge below did not err in holding that charge 4 was not defective in this respect.

163 I agree with the submission of Baiada that reasonable practicability lies at the heart of the offence alleged: it is the 'foundation of the charge'[121] without which the charge would not be valid. I agree that the charge does not specify the means by which it is alleged that it was reasonably practicable for Baiada to ensure that an adequate system was in place as alleged in particulars (a) and (b).

164 In my opinion, the High Court authorities quoted above, although they deal with the issue of evidentiary onus, clearly suggest that in the case of an offence such as that under s 26 - that is, where a 'general obligation'[122] is imposed but which is limited to reasonably practicable matters - the charge must specify the reasonably practicable means the employer should have adopted but did not. That is the core of the 'particular act, matter or thing alleged as the foundation of the charge'[123] and the case the defendant is to answer. As Nettle JA (as his Honour then was) observed[124] the charge defines the issues and thus the evidence admissible in the litigation.

165 When the VWA provided further particulars of the offences (when seeking to amend charge 4) they did specify the means. In respect of particular (a), VWA specified the means as 'ensuring the chicken processing line was tagged and locked out before any cleaning commenced and remained so throughout the cleaning process.' In respect of particular (b), VWA specified 'providing screening or guarding to prevent entanglement in the chicken processing line'.

166 Counsel for Baiada conceded that his client well understood what was involved in ensuring the line was tagged and locked before any cleaning. Also his client well understood what was involved in providing screening or guarding.

167 As Chugg establishes, the VWA bore the onus of proving that a particular means was reasonably practicable in establishing that Baiada was in breach of s 26(1).

168 If the means that the VWA alleges were reasonably practicable were included in charge 4, as they were required to be, the VWA would be confined by the means that they allege were reasonably practicable for Baiada to adopt but which Baiada failed to adopt. If the means were not alleged, the charge would not inform Baiada what it is alleged it failed to do. The charge would be invalid.

169 Brennan J in Chugg said, '[t]he words "so far as is practicable" ... are an integral part of the clause'.[125] In my opinion, the words 'so far as is reasonably practicable' in s 20(2) should similarly be 'strictly construed',[126] especially in the context of a criminal charge.

170 The majority in Chugg stated that by imposing the onus of reasonable practicability on the prosecution, the issues arising in a criminal proceeding were confined in order to ensure that the defendant was not given 'the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination.'[127] Such an additional burden might be thought to involve a reversal of the evidentiary onus. The High Court in Slivak indicated that such a reversal would require clear and unambiguous statutory language.[128]

171 If the issues are to be so confined in the criminal proceeding under s 26 according to what was reasonably practicable, then the charge should also state unambiguously the precise 'means' it is alleged were reasonably practicable for Baiada to adopt so as to have the adequate systems in place to ensure that the workplace was 'safe and without risks to health'.

172 I do not accept the VWA's characterisation of Baiada's position as an attempt to elevate matters that were properly the subject of a request for further particulars or evidence at trial to essential factual ingredients of the offence. The VWA submitted that the case did not need to be determinable from the charge-sheet. The omission, however, of the 'means' from the charge deprive the charge of the essential element of the case against Baiada, which is (a) that Baiada failed to have in place a tag and lock system to allow the line to be stopped when being cleaned and (b) failed to have screening and guarding to prevent the cleaner coming into contact with the line when it was being cleaned. Without those elements being alleged, Baiada is not informed of the heart of the case against it.

173 Once these means are identified, particulars might be sought going to cost, time and trouble as referred to in Slivak. Further, as is normal, once the court is seized of the charge, details of the evidence to be led at the trial will be provided to the defendant. Until the means are identified in the charge, however, the charge lacks an essential element and is invalid.

174 The trial judge found that the reference to not having an adequate system to ensure certain specified results provided a 'readily available standard' to give meaning to the expression 'adequate system'. His Honour cited, inter alia, Giles JA in John Holland, where his Honour dealt with a submission by the defendants that in Kirk the allegation that the defendants did not provide 'appropriate training' did not identify what should have been done to avoid exposure to risk from the use of the ATV.

'Appropriate' in Kirk v Industrial Court of New South Wales was a word without a readily available standard, and gave no assistance in identifying what was not done which if done might have prevented the accident. Other than appropriateness for safe use, at an uninformative level of generality, it had little content.

'Adequate', 'sufficient' and cognate expressions in the present cases readily lend themselves to standards found in tunnelling practice and avoidance of collapses such as that which occurred. It is not the case that words in the statement of an offence of the kind complained of necessarily mean that the act or omission on which the prosecution relies, and what the accused should have done, is not identified. ...[129]

176 In other words, the particulars provided in John Holland, as discussed above, provided an available standard against which the word 'appropriate' could be measured. Accordingly, there was no failure to specify what constituted 'appropriate' measures as the further particulars provided the necessary specificity.

177 The learned judge below, adopted the expression 'readily available standard' and found that in respect of charge 4, that the particulars did provide 'a readily available standard' to give meaning to the expression 'adequate system'.

178 To some limited extent, that may be so, in that the objective of the undefined 'adequate system' (that it was alleged that Baiada failed to have in place) was clearly specified. In particular (a), it was for the line to not operate, and in particular (b) for the cleaner not to come in contact with the line when it was being cleaned.

179 This observation, however, does not address the failure of the charge to specify the reasonably practicable means by which this desired system would achieve the specified objective. It is the reasonably practicable means to achieve that result, which it is alleged the defendant should have adopted and failed to do so. Unless the reasonably practicable means are specified in the charge, the charge does not make 'known what the accused failed to do and should have done'.[130]

180 The VWA also sought to distinguish Kirk on the basis that in the NSW legislation there is no onus on the prosecutor to prove that the means or measure that the defendant failed to adopt was reasonably practicable. Rather, the legislation provides a defence to the employer that it was not reasonably practicable to take the measure or means it is alleged it failed to adopt. The High Court said that such a defence could only address particular measures identified not to have been taken in the statement of the offence[131] and that the failure to specify the measure denied the defendants the opportunity to properly put a defence.[132]

181 In my opinion, where the onus falls on the VWA to establish that a particular measure or means was reasonably practicable, I do not see any reason why the obligation to specify the particular measure or means (that the prosecution says ought to have been taken, but were not) is any the less than where the defendant bears the onus, as in NSW, to establish that the measure or means was not reasonably practicable.

182 In my respectful opinion, the ground relied on by the learned judge below did not meet the objection to the charge that it failed to specify the essential elements of the charge in omitting reference to the means it was alleged that Baiada should have implemented but failed to do so.

183 During argument, the Court asked why would not a reasonable defendant read the charges saying that there should have been a system in place to ensure either of the things in particulars (a) or (b), and there was not?

184 The VWA did not submit that this was the case in this matter. Further, in Chugg, the Court held that although the defendant 'will have superior knowledge of matters peculiar to his workplace'[133] and thus may have had in mind a specific means to remove risks, this did not remove the burden on the prosecution to identify the particular means which it alleges the defendant ought to have had but did not.

185 As the majority said in Chugg, workplace safety inspectors may well have 'wider knowledge as to the severity of, the state of knowledge about, and the availability of ways to remove or mitigate, hazards or risks which occur in the industry generally, or occur in some general class of industrial undertaking or in relation to some general class of industrial machines, operations or pursuits'.[134]

In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving risk to a strong inference that an employer failed to provide 'so far as is practicable' a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard. And, in such cases, that inference might well be further strengthened by the failure of an employer to call evidence as to matters, such as cost and suitability, peculiarly within his knowledge.[135]

187 Nevertheless, the Court held that the onus still rested on the prosecution to identify the means and prove the means were reasonably practicable.

188 In my opinion, even assuming that Baiada might have suspected the VWA had particular means in mind (which assumption was not contended for by the VWA), does not remove from the VWA the onus of specifying and proving the 'reasonably practicable means' and thus specifying the same in the charges. For these reasons, I find that charge 4 was invalid. I would allow the appeal and order that charge 4 be quashed.

[1] Supreme Court Act 1986 s 14C, Kennedy v Shire of Campaspe [2015] VSCA 47 [19].

[2] Criminal Procedure Act 2009 s 6(3), sch 1 cl 1 .

[3] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 519; Kirk v Industrial Court of NSW (2010) 239 CLR 531, 557 [26].

[4] Glenister v The Magistrates' Court of Victoria [2014] VSC 265 ('Reasons').

[7] Ibid 558-9 [29], citing Smith v Moody [1903] 1 KB 56 and Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 495; see also John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 528-9.

[8] [1937] HCA 77; (1937) 59 CLR 467 ('Johnson v Miller').

[10] Ibid 501, citing Smith v Moody [1903] 1 KB 56, 60.

[11] Ibid 486, citing Smith v Moody [1903] 1 KB 56, 61, 63.

[12] [1903] 1 KB 56, 60.

[14] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 519-20.

[15] [2012] HCA 14; (2012) 246 CLR 92 ('Baiada').

[16] Ibid 100 [15] (French CJ, Gummow, Hayne and Crennan JJ).

[20] Ibid 95 [1] (French CJ, Gummow, Hayne and Crennan JJ), 111 [55] (Heydon J).

[21] [1990] HCA 41; (1990) 170 CLR 249 ('Chugg').

[23] Ibid 260-261 (Dawson, Toohey and Gaudron JJ).

[26] [2001] HCA 6; (2001) 205 CLR 304.

[27] [1987] HCA 42; (1987) 163 CLR 508 ('John L').

[31] [1998] WASCA 199 (5 May 1998).

[36] Ibid 554 [16] (citations omitted) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[43] Ibid 559 [30] (citations omitted).

[46] See, eg, John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338 [77]-[78], [135]-[139].

[48] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 ('John L') 519 (Mason CJ, Deane and Dawson JJ).

[50] The second respondent, the Magistrates' Court, is not taking an active role in the appeal.

[51] The appellant stated at the hearing that no issue would be taken with the incorrect reference to s 21 in this charge.

[52] The appellant stated at the hearing that no issue would be taken with the incorrect reference to s 21 in this charge.

[53] Glenister v The Magistrates' Court of Victoria and Anor [2014] VSC 265 ('Glenister v Magistrates' Court') [27], [75].

[54] See transcript, page 81 line 8 onwards.

[55] Glenister v Magistrates' Court, [156]-[159] (emphasis added).

[56] (1903) 1 KB 56 ('Smith v Moody').

[61] [1937] HCA 77; (1937) 59 CLR 467 ('Johnson v Miller').

[70] [1977] 2 NSWLR 264.

[71] [2011] VSCA 257 ('Kypri').

[75] [2009] VSC 416 ('Ciorra v Cole').

[77] [2012] VSC 78 ('DPP v Kirtley').

[79] [1990] HCA 41; (1990) 170 CLR 249 ('Chugg').

[80] Cf The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150.

[82] Chugg 263 (citations omitted, emphasis added).

[83] (2010) 239 CLR 531 ('Kirk'), 557.

[84] Johnson v Miller, 489 (emphasis added).

[85] [2001] HCA 6; 205 CLR 304 ('Slivak').

[89] Ibid [94] (citations omitted, emphasis added).

[90] Chugg [53]-[54] (citations omitted).

[91] Ibid [88]-[89] (citations omitted, emphasis added).

[92] Johnson v Miller 489 quoted in Kirk 557.

[93] Dr Neal for the appellant indicated that the provisions are broadly similar nationally (although with some exceptions), see page 14 of the transcript.

[104] Ibid 559 (emphasis added, references omitted).

[107] [2010] NSWCA 338 ('John Holland').

[109] Ibid [135]-[141] (emphasis added). The Chief Justice expressly agreed with these observations.

[110] Smith v Moody 60 (Lord Alverstone CJ), 61 (Wills J), 63 (Channell J).

[111] [1938] NSWStRp 12; (1938) 38 SR (NSW) 153.

[114] [2011] HCA 34.

[115] John L 519 (Mason CJ, Deane and Dawson JJ).

[121] Johnson v Miller 489 quoted in Kirk 557.

[122] Chugg 263 (citations omitted) (emphasis added).

[123] Johnson v Miller 489 quoted in Kirk 557.

[128] Slivak [39] (Gleeson CJ, Gummow and Hayne JJ).

[129] John Holland, [136]-[137].

[130] John Holland, [14] (Giles JA).

[133] Chugg 260 (Dawson, Toohey and Gaudron JJ).