Magistrates Court Tasmania (Criminal and General Division)

Buchanan v Huon Aquaculture [2010] TASMC 07

Magistrates - Jurisdiction and procedure generally - Procedure - Information and complaint - Form and sufficiency - Particulars - Necessity for - Offences against Workplace Health and Safety Act 1995 and Workplace Health and Safety Regulations 1998

Justices Act 1959, ss574A(5)(c), 30(1)(b), 31(2)(b)

Workplace Health and Safety Act 1995, s9(1)

Workplace Health and Safety Regulations 1998, regulation 18(1)

Kirk v Industrial Commission NSW [2010] HCA 1

Johnson v Miller [1937] HCA 77; [1937] 59 CLR 467 applied

Wong v Kirkham [1989] TASSC 56; [1989] TAS R 225 referred to

1. The defendant company has been charged with 3 charges contrary to the Workplace Health & Safety Act 1995 and the Workplace Health & Safety Regulations 1998.

2. In respect of all charges the date of the offence is alleged to be 13 March 2009. The complaint was filed in the Court of Petty Sessions on 10 March 2010.

3. When the defendant was required to plead the charges it entered a plea that further proceedings ought not to be had on the complaint pursuant to section 74A(5)(c) of the Justices Act.

4. Section 74A(6) requires the court to hear and determine the plea and (a) amend the complaint, or (b) dismiss the complaint, or (c) overrule the plea.

5. The defendant submits that the court should dismiss the complaint on the basis that it is defective. Prosecution submits the court should overrule the plea.

6. The defendant submits that the complaint is defective as it does not comply with section 30(1)(b) of the Justices Act, which states as follows:

"(1) Any complaint, summons, warrant, or other document that is laid, issued, or made for the purpose of, or in connection with, proceedings before justices shall be sufficient if it -

(a) describes the matter of complaint with which the defendant is charged or of which he is convicted in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the matter of complaint; and

(b) contains such particulars as will give reasonable information of the nature of the matter complained of."

7. In the event of an allegation of deficiency of particulars under section 31(b) a plea that further proceedings ought not to be had on a complaint is the correct plea.

8. Even where no plea has been entered by a defendant, section 31(2)(b) of the Justices Act allows Justices to dismiss the complaint where a defendant appears to have been prejudiced by any defect in substance or form.

9. A failure to comply with section 31(b) in terms of particularity is a defect in substance. (refer to Johnson v Miller [1937] HCA 77; [1937] 59 CLR 467 per McTiernan J at 502)

"The defendant cannot plead unless he knows what is the precise charge being preferred against him. If he so chooses, a defendant has a right to plead guilty, and therefore to know what it is he is being called upon to answer. I think that the observations of Napier J in Tucker v Noblet (1) support the view that, at the outset of the hearing, the prosecutor may be called upon to select his charge and particularise his complaint, and that in the absence of the necessary information, and, as a last resort, the court has inherent power to dismiss the complaint ... the ultimate sanction is, and must be, dismissal of the complaint. No plea can be taken, no evidence can be admitted, nothing can be done, an adjournment will be useless, if a prosecutor is set upon a refusal to particularise."

11. What particulars will be needed depends upon the charge. (For example, when there is alleged a complex chain of events see Wong v Kirkham [1989] TASSC 56; [1989] TAS R 225 at p228)

12. In relation to Count 1, an alleged breach of section 9(1) of the Workplace Health & Safety Act 1995, the defendant submits that apart from setting out the factual matrix (date, place and name of employee) the particulars do not set out any actual acts or omissions that are said to have breached the Act.

13. Whilst the factual setting is relevant to particularisation, it is incumbent upon the complainant to identify exactly which acts or omissions are those that breach the provision.

14. The current wording of the relevant part of the complaint is as follows:

- That the defendant failed to provide information, instruction, training and supervision reasonably necessary to ensure that, so far as was reasonably practical, Mr Doyle, Mr Woolford and Mr Strong were safe from injury and risks to health, and in particular -

(1) failed to provide Mr Doyle with information, instruction and training in regard his use of the crane;

(2) failed to ensure that Mr Doyle was supervised in his use of the crane;

(3) failed to provide Messrs Woolford and Strong with information, instruction and training in regard to the use of the crane.

15. These allegations are very general and essentially a verbatim repetition of the words used in s9(2). By the use of the words "and in particular" these particulars may not even be exhaustive.

16. It appears that as a result of alleged breaches, a death has occurred. The monetary penalty for this charge against a corporation is high. By the prosecution's own submission detailed allegations involving consideration of expert evidence are foreshadowed. The defendant is clearly entitled to be apprised of the manner in which the breaches are to be proved against it. As Count 1 stands it would be a guess on the part of the defendant as to exactly what reasonably practicable supervision, information, instruction and training it should have provided the named employees.

17. I have carefully considered the decision of Kirk v Industrial Relations Commission NSW [2010] HCA 1 referred to by the defendant's counsel. I accept his submission that factually the case is identical in terms of the degree of particularisation of the complaint.. In Kirk the High Court held that the Industrial court had fallen into error by proceeding on the complaint. A significant aspect of the grant of certiorari for jurisdictional error was based upon the lack of particularity on the complaint. The court considered the lack of particularity in detail with reference to authorities such as Johnson v Miller. The court stated, at paragraph 74:

"That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of section 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk Company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk Company were convicted and for which they sentenced. In the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct following from the misconstruction of section 15. By misconstruing section 15 of the OH&S Act the Industrial Court convicted Mr Kirk and the Kirk Company of offences when what was alleged and what was established did not identify offending conduct."

18. I set out this passage only to emphasise the importance, in the scheme of the issues in Kirk, of deciding the question of sufficiency of particularity of the offence.

19. Counsel for the prosecution submitted that the legislation in Kirk provided a separate defence. He submitted that the High Court noted that the legislation it was dealing with was different from other legislation of this type in Australia. I cannot determine either philosophically or logically why the structure of the defence provisions change the requirement to give reasonable information of the nature of the matter of the complaint. Despite the differing onus, the issue involves exactly what "reasonably practicable" measures should be taken by an employer.

20. Count 3 on the complaint suffers from the same defect as Count 1. That is, it fails to particularise how the defendant "failed to identify the hazard arising" or what the hazard was. It also fails to identify exactly what were the "appropriate measures to control the risk of the hazard arising".

21. In relation to Count 2, however, I do not consider it suffers from the same lack of particularity. This charge alleges a breach of regulation 18(1) of the Regulations. That regulation requires an identification and assessment of the risks associated with a hazard to be undertaken before the introduction of any plant for the first time at a workplace. In my view the complaint alleges that such a risk assessment was not undertaken prior to installing a particular crane at the workplace. The complaint does not give an exact time at which the crane was introduced. However it identifies the crane and limits the time to a time before 13 March 2009. The offence does not require a hazard assessment to be accurate or contain certain information. It simply requires one to be prepared before the introduction of the plant. If it is not, an offence is committed. I do not consider this defective in terms of particularity.

22. Whilst I have found Counts 1 and 3 defective, and liable to be dismissed, I note that an order for dismissal should be a last resort: (Evatt J in Johnson v Miller at page 498).

23. Therefore before deciding further as to dismissal, I will hear the parties as to amendment of the charges.