Downer EDI Works Pty Ltd v The Queen [2017] VSCA 27

CRIMINAL LAW - Trial - Practice and procedure - Defence challenge to legal validity of charge - Importance of early identification of legal issues - Statutory obligation to raise questions of law before trial - Criminal Procedure Act 2009 ss 199, 200.

1 The applicant ('Downer') is facing trial in the County Court on three charges under s 21(1) of the Occupational Health and Safety Act 2004 ('OHSA'). The charges were first laid in February 2015, at which time a second defendant, the Roads Corporation ('VicRoads'), was charged with the same offences. On a case stated heard by this Court in June 2015, both defendants challenged the validity of the charges, on the basis that the conduct in question was governed not by the OHSA but by the Road Safety Act 1986. That challenge failed.[1]

2 The trial of the charges was fixed for hearing on 23 January 2017. On the first day of the trial, VicRoads pleaded guilty to a single charge. A fresh indictment was provided to the trial judge, which pleaded the original three charges as against Downer alone. Later that day, the trial judge asked senior counsel for the prosecution whether, in the light of this Court's decision in Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd,[2] charge 2 in the new indictment was correctly pleaded.

3 As will appear, charge 2 is based on s 21(2)(e) of the OHSA, which provides that there will be a contravention of the general duty imposed by s 21(1) of the OHSA if an employer fails to

provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.

In Vibro-Pile, this Court reaffirmed that the obligation imposed by s 21(2)(e) was not subject to the qualification of 'reasonable practicability'.[3]

4 As originally pleaded, charge 2 identified the instruction and training which it was alleged Downer had failed to provide. As well as alleging that the particular instruction and training was necessary, the charge also alleged that it was reasonably practicable. The prosecutor agreed with the judge that the drafting of charge 2 needed amendment, and the latter allegation was deleted.[4]

5 Counsel for Downer then raised what was said to be a 'deeper failing' in the pleading of charge 2. The defect was said to be that, although the charge replicated the language of s 21(2)(e), nothing was pleaded 'by way of particulars' as to why the training and information specified in the particulars was 'necessary', as alleged. Accordingly, it was submitted, charge 2 did not disclose 'an offence known to the law'.

6 On 24 January 2017, the trial judge ruled that no particulars of 'necessity' were required.[5] Counsel for Downer then informed his Honour that he was instructed to pursue an interlocutory appeal under s 295 of the Criminal Procedure Act 2009 ('CPA'). For that purpose, counsel asked the judge to certify under s 295(3)(b) of the CPA that the interlocutory decision was

of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

In a further ruling, delivered on 1 February 2017, his Honour declined to certify.[6]

7 Although charge 2 had been amended as foreshadowed, counsel for Downer maintained that the pleading of the charge still did not comply with what had been said by this Court in Vibro-Pile. The debate now concerned the retention of the words 'so far as was reasonably practicable' in the third line of the charge.[7] The judge ruled that there was no defect[8] and, again, refused to certify for an interlocutory appeal.[9]

8 Counsel for Downer then applied for an adjournment of the trial, on the ground that it would be 'oppressive' for the trial to proceed before Downer had exercised its 'immediate and present right of appeal' against the rulings. The adjournment application was refused. The following day, Friday 3 February 2017, Downer filed an application seeking review of both of his Honour's refusals to certify.[10]

9 The Court having been informed that the judge was about to empanel a jury, the application was listed for hearing at 2.15 pm on Monday, 6 February 2017. With the assistance of the Registry and excellent co-operation from the parties, the Court had the benefit of both written and oral argument at very short notice.

10 At the conclusion of argument, we announced that the applications for review would be refused, as there was no reason to doubt the correctness of his Honour's rulings. We made orders accordingly, and said that we would publish reasons in due course. These are those reasons.

11 In addition to the substantive issue about the degree of particularity required for charges under the OHSA, this application highlights the importance of disputes over the legal validity of charges, and the sufficiency of particulars, being ventilated well before trial. We were told by counsel for Downer that, had it not been for the judge's intervention, the defence would not have raised these matters until after the close of the Crown case. As explained below, it is not appropriate for legal challenges of this kind - which do not depend on the evidence to be led - to be delayed in that way.

12 Set out below is the form of charge 2 as it appeared in the amended indictment filed on 24 January 2017, following the judge's question about Vibro-Pile. We have marked the words which the prosecution deleted. The ruling which Downer sought to challenge concerned the retention of the italicised words 'so far as was reasonably practicable' in the third line of the charge.

CHARGE 2 The Director of Public Prosecutions charges that DOWNER EDI WORKS PTY LTD (ACN 008 709 608) at Bayswater in Victoria on the 30th day of November 2011, being an employer, failed so far as was reasonably practicable to provide and maintain for its employees a working environment that was safe and without risks to health in that it failed to provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health in that it:

PARTICULARS:

(a) DOWNER EDI WORKS PTY LTD (ACN 008 709 608) was at all material times a body corporate within the meaning of the Occupational Health and Safety Act 2004.

(b) On 30 November 2011, Harry ZAGARETOS was killed, when hit by a street sweeper operated by Wayne POLLARD, whilst moving traffic control bollards at a workplace being a road re-surfacing site along a stretch of Canterbury Road near the comer of Bayswater Road, Bayswater.

(c) DOWNER EDI WORKS PTY LTD (ACN 008 709 608) had control of the workplace including the responsibility for the health and safety of the employees working at the workplace.

(d) DOWNER EDI WORKS PTY LTD (ACN 008 709 608) directly employed persons at the workplace and engaged independent contractors whose employees worked at the workplace, which persons were employees in accordance with s.21 (3) of the Occupational Health and Safety Act 2004.

Instruction and Training:

(e) DOWNER EDI WORKS PTY LTD (ACN 008 709 608) failed to provide such information and instruction as was necessary to enable its employees to perform their work in a way that was safe and without risks to health because:

1. The DOWNER EDI WORKS PTY LTD's (ACN 008 709 608) induction did not address the dangers posed by the sweeper vehicle reversing on a busy site and risk of injury to pedestrians and to occupants of other vehicles.
2. There was no Safe Work Method statement or similar document setting out safe procedures for moving or setting up bollards and addressing the dangers posed by the movement of the sweeper on the site to persons on foot.

Such instruction and training was reasonably practicable.

Statement of Offence - Failing to provide adequate information, instruction, training or supervision contrary to ss 21(1) & (2)(e) of the Occupational Health and Safety Act 2004.

13 Section 21(1) of the OHSA imposes a general safety duty on employers, breach of which is an indictable offence.[11] Under s 21(1), an employer

must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.

Subsection 21(2) then commences with these words:

Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following: ...[12]

There follow five sub-paragraphs, each of which identifies a specific duty which the employer must discharge.

14 In the case of the first four sub-paragraphs, the duty is qualified by the words 'so far as reasonably practicable'. Thus, s 21(2)(a) is in these terms:

provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health.

What is distinctive about s 21(2)(e), however, is that it contains no such qualification. Instead, as noted earlier, that sub-paragraph requires the employer to

provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.[13]

Each of the sub-paragraphs of s 21(2) is self-contained. When there is an allegation of breach of one of the sub-paragraphs, the only question for the jury is whether it has been proved that the employer failed to do that which the particular sub-paragraph prescribes.

Take, for example, an allegation that the training provided to employees was inadequate. The question for the jury under s 21(2)(e) would be whether the employer had failed

to provide such training to employees as was necessary to enable the employees to perform their work in a manner that was safe and without risk to health.

If that question were answered affirmatively, the breach of s 21(1) would be established. The language of s 21(1) itself is irrelevant to the issue, since non-compliance with s 21(2)(e) 'automatically establishes' a breach of s 21(1). No question of reasonable practicability therefore arises.[14]

16 This was the point which the trial judge was astute to draw to the prosecutor's attention. That is, it was not necessary for the Crown to prove, as the original particulars had contended, that provision of the requisite instruction and training was 'reasonably practicable'. Rather, what had to be proved was that its provision was necessary to enable the employees to work safely in the particular workplace.

17 As already noted, Downer maintained - before the judge and on this application - that, by parity of reasoning, the 'reasonably practicable' qualification should also be removed from the opening lines of the charge. The trial judge was initially attracted to this submission but ultimately accepted the prosecutor's argument that no further amendment was required.

18 The point was put shortly and clearly by senior counsel for the Crown. Whichever sub-paragraph of s 21(2) is relied on, the offence alleged is a contravention of s 21(1). That is the offence provision. The sub-paragraphs of s 21(2) simply identify categories of conduct which will constitute a contravention of s 21(1). In the present case, therefore, proof that Downer failed to provide the necessary instruction and training would establish that it committed an offence under s 21(1), that is, that it failed

so far as was reasonably practicable to provide and maintain for its employees of the employer a working environment that was safe and without risks to health.

19 The charge as amended is therefore correctly drawn. As required by clause 1 of sch 1 to the CPA, the charge states 'the offence that [Downer] is alleged to have committed'. As we have explained, while the specific obligation in relation to instruction and training is not subject to the 'reasonably practicable' qualification, the offence charged does include the qualification. His Honour was correct so to conclude.

20 Counsel for Downer also argued - before the judge and again on this application - that the retention of the words of qualification in the opening part of charge 2 might tend to confuse the jury. There was nothing in that point, in our view, given the following clear statement in the judge's ruling:

In essence, a jury would be instructed that if they were satisfied beyond reasonable doubt of each of the elements of s 21(2)(e), (which does not involve a consideration of 'reasonable practicability'), then consistent with Vibro-Pile and the authorities referred to therein, such satisfaction of the elements would establish the breach of s 21(1) of the Occupational Health and Safety Act 2004.[15]

21 As noted earlier, the particulars under charge 2 allege that Downer breached its obligation to provide the necessary instruction and training because:

• its induction 'did not address the dangers posed by the sweeper vehicle reversing on a busy site'; and
• there was no 'Safe Work Method statement or similar document', setting out safe procedures for work at the site.

22 The contention for Downer was that the particulars also needed to state why that instruction and training was necessary. The judge asked counsel for Downer to give some indication of the kind of particulars which should be provided. As recorded in his Honour's reasons, counsel's response was that the particulars should specify (assuming these to be the relevant facts) that the worker who was fatally struck by the sweeper vehicle:

• had not previously operated as a traffic controller;
• had not completed the induction process at Downer's work site on the night of the fatal accident; and
• had no experience in the moving of bollards in close proximity to moving plant or in proximity to a live lane of traffic.[16]

Such particulars would show, it was submitted, why the specified instruction and training was necessary for that worker.[17]

23 Several points should be made about this contention. As the Court made clear in Vibro-Pile, the determination of what instruction and training is necessary - and why - turns on the nature of the risks associated with the work to be performed, and with the workplace in which it is to be performed.[18] These are general questions, to be addressed in the light of the necessary identification and assessment of those risks. What is necessary for this purpose does not depend upon the particular state of knowledge or experience of a particular employee at a particular time.[19]

24 As the Court in Vibro-Pile emphasised, no issue arises in a prosecution of this kind as to what caused the fatal accident or whether the taking of the requisite safety measures would have altered the course of events on the day in question.[20] Moreover, as the judge correctly pointed out to counsel for Downer, an employer is not entitled to make any assumptions about the knowledge or experience of its employees.[21]

25 The issue of necessity - that is, whether the specified training and instruction was necessary - will thus turn on a combination of factors of different kinds, beginning (as we have said) with the identification and assessment of the risks associated with this kind of roadwork being undertaken, at night, at a workplace of this kind. The 'particulars of necessity' which Downer seeks would potentially require a wide-ranging summary of those factors, encompassing the key elements of the evidence to be led, including (where relevant) expert evidence. Plainly, such particulars would go well beyond the particulars in fact provided.

26 The judge addressed this issue of scope in his ruling, as follows:

It is for the prosecution to discharge its onus to prove beyond reasonable doubt that it was 'necessary' for the accused to eliminate or reduce the identified risk by addressing the matters contained in paragraph (e) of Charge 2. As the Court of Appeal makes clear in Vibro-Pile, such a question is a jury question. In this sense, it would be incumbent upon the jury to consider all of the evidence and come to a view as to whether the prosecution has proved beyond reasonable doubt that one or more of the measures set out in Particular (e) were necessary.

In my view, this is made abundantly clear in Vibro-Pile wherein I might add, there is no suggestion whatsoever that there would have to be any particulars of 'necessity'. Rather, I refer to paragraph [119] which is instructive, although obviously dealing with a different factual situation, wherein the Court of Appeal states:

As we have pointed out, the question which arises on a charge of this kind under s 21(2)(e) is: what training was necessary to enable the employee to perform his work 'in a way that [was] safe and without risks to health?' On the evidence before the jury, it was open to them to conclude that the necessary training had to involve the actual carrying out - under the supervision of an appropriately-qualified trainer - of the rigging and de-rigging of each section of the machine.

The Court of Appeal goes on to refer to various parts of the evidence before the jury and ultimately came to the view that it was open to the jury in the circumstances of that matter to find beyond reasonable doubt that a certain action should have been undertaken by the employer. Of course, the determination of what was 'necessary' is not at large - the jury has to consider and be satisfied beyond reasonable that the nominated measures set out in the Indictment are 'necessary'.

When analysed in such a way, it is hard to envisage what Particulars of necessity could be given. A Particular could not set out every aspect of what was to be contemplated in the evidence.[22]

27 In this Court, counsel for Downer maintained that the absence of such particulars rendered charge 2 invalid as a matter of law. The resolution of that issue turned on clause 1(b) of sch 1 of the CPA, which provides that a charge must

contain the particulars ... that are necessary to give reasonable information as to the nature of the charge.

28 In ruling that the charge was valid, his Honour relied on the decision of this Court in Baiada Poultry v Victorian WorkCover Authority.[23] That case concerned the adequacy of a charge under s 26 of the OHSA, which relevantly provides that a person having the management or control of a workplace

must ensure so far as reasonably practicable that the workplace and the means of entering and leaving it as safe and without risks to health.

Although the charge in Baiada had identified the measures which the defendant had allegedly failed to take, the defendant maintained that a valid charge also required specification of 'the means by which it was reasonably practicable' for it to take those measures.[24]

29 The Court rejected that contention. In their joint judgment, Ferguson and McLeish JJA said:

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.

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. 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'.[25]

30 Downer was thus confronted with clear appellate authority holding that, so long as the charge identified the safety measures which the employer had allegedly failed to take, there was no requirement to specify which particular actions were said to be 'reasonably practicable'. Particulars of that kind would potentially have to address each of the matters identified in s 20(2) of the OHSA, being matters to which regard must be had 'in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety'.

31 In this Court, counsel for Downer was asked to explain why particulars of 'necessity' were essential to the validity of a charge under s 21(1) when particulars of 'reasonable practicability' were not. Plainly enough, these concepts do cognate work in the respective provisions: in the case of s 21(2)(a)-(d), the prosecution must prove that the specified measures were 'reasonably practicable'; in the case of s 21(2)(e), that the measures were 'necessary'.

32 The key difference, counsel submitted, was that while s 20(2) of the OHSA gave content to the concept of 'reasonable practicability', no comparable guidance was provided as to how the concept of 'necessity' should be approached. We were not persuaded by that argument. 'Necessity' is an ordinary English word, used here in its ordinary sense. The nature of the allegation is clear. Whether particular measures were necessary in a particular workplace is a question of fact, to be determined having regard to the relevant risks to safety.

33 In the present case, the particulars provided sufficiently identify the content of the induction and documentation which Downer should have provided in order to enable employees to perform their work in a way that was safe. The charge thus contains

the particulars ... that are necessary to give reasonable information as to the nature of the charge.[26]

34 At the beginning of argument on this application, counsel for Downer were asked to explain why these questions concerning the form and validity of charge 2 had not been raised until what was, in effect, the first day of the trial. The Court pointed out that the form of the charge had remained relevantly unchanged since Downer was first charged in February 2015; that, following the decision on the case stated, the trial had been relisted in November 2015 with an earliest possible date of 23 January 2017; and that, so far as the challenge depended on what was said in Vibro-Pile, that decision had been published in March 2016. Similar points had been made by the prosecutor in argument before the judge.

35 Counsel for Downer submitted that they had no obligation to raise questions of this kind before trial. Indeed, according to the submission, it would have been inconsistent with their duty to their client for them to have done so, as this would have enabled the prosecution to correct the defects identified (if such they were) and hence rectify a flawed case. It was both common practice and entirely proper, counsel submitted, for a challenge to the validity of a charge to be raised for the first time after the close of the Crown case. That course would have been adopted here, we were told, had it not been for the judge himself raising questions about the form of charge 2.

36 In response, senior counsel for the prosecution submitted - as he had done before the judge - that where the defence formed the view that there was a legal defect in a charge, counsel had an obligation to raise it at the earliest practicable opportunity. In the present case, senior counsel pointed out, the trial court had made repeated enquiries of the parties as to whether there was to be any pre-trial argument.[27] Those enquiries had been answered in the negative. By not raising the point earlier, it was said, the defence had created the risk that the trial - already long delayed - would be delayed still further.

37 The approach adopted - and defended - by counsel for Downer was also the approach taken by defence counsel in Vibro-Pile. In that case, a complaint about the legal sufficiency of particulars of a charge was raised for the first time in a no case submission at the end of the Crown case. When the complaint about particulars was renewed on the appeal, and rejected, the Court made very clear that such issues must be raised before trial:

As Redlich JA pointed out during argument, the challenge to these particulars should properly have been raised before the trial began. The contention was that charge 4(c) was bad in law and should be struck out. The correctness of that contention did not depend on the evidence which the prosecution would lead. A complaint about particulars - where it is said that they do not disclose an offence known to the law or would otherwise be productive of unfairness - should be raised at the outset of the trial. There are real difficulties in the way of an accused who waits until the close of the prosecution case, or until an appeal, to complain that unfairness has resulted from the form of the particulars.[28]

38 The governing principles are not new. In 1995, the Appeal Division of this Court emphasised the duty of all trial counsel:

to cooperate with the Court and each other so far as necessary to ensure that the system of justice is not betrayed.[29]

the submission of unfairness in the framing of the presentment is pre-eminently a submission that ought to have been made below (where it might have been cured before the start of the trial) ...[30]

39 The applicable statutory obligations are now clear and well-established. Between 1999 and 2009, the conduct of criminal trials in this State was governed by the Crimes (Criminal Trials) Act 1999, the express purpose of which was

to increase the capacity for judicial management of criminal trials and make other changes for the purposes of improving the efficiency of criminal trials.[31]

Section 10 of that Act required that questions of law be raised well before trial:

10 Disclosure of questions of law

(1) A party who intends to raise a question of law in a criminal proceeding must, at least 14 days before the day on which the trial is due to commence (or, if the party is not aware within that period of the question of law, as soon as possible after the party becomes aware of it), notify the court that a question of law has arisen that requires determination.

40 The successor to that Act, the CPA, maintained and broadened the obligation to give early notice of issues of this kind. The combined effect of ss 199 and 200 of that Act is that, if a party intends to raise 'an issue of law or procedure', that party must notify the other party, and the Court, of the issue

as soon as possible after the party becomes aware of the issue and at least 14 days before the day on which the trial of the accused is listed to commence ...[32]

41 The rationale for the imposition of these obligations is clear. To defer the making of a complaint about the form of a charge until after the close of the Crown case is calculated to undermine the system of justice. For, as was acknowledged by counsel for Downer, the upholding of such a complaint would not enable the defence to plead autrefois acquit. Instead, the Crown would be obliged to replead and lay a fresh charge. The trial of that charge would have to take place before a fresh jury, potentially with much of the evidence led at the first trial having to be led again. If, as was suggested, it is still a common practice to wait until the conclusion of the Crown case before raising a submission going to the validity of the charge, that practice must cease.

[1] DPP v Downer EDI Works Pty Ltd and Roads Corporation (2015) 47 VR 688.

[2] [2016] VSCA 55 ('Vibro-Pile').

[5] DPP v Downer EDI Works Pty Ltd (Unreported, County Court of Victoria, Judge Parrish, 24 January 2017) ('Ruling [No 1]') [35]-[37].

[6] DPP v Downer EDI Works Pty Ltd [No 2] (Unreported, County Court of Victoria, Judge Parrish, 1 February 2017) ('Ruling [No 2]') [17]-[18].

[7] See para [12] below.

[8] DPP v Downer EDI Works Pty Ltd [No 3] (Unreported, County Court of Victoria, Judge Parrish, 1 February 2017) ('Ruling [No 3]') [17]-[19]

[9] DPP v Downer EDI Works Pty Ltd [No 4] (Unreported, County Court of Victoria, Judge Parrish, 2 February 2017) [17]-[18]

[14] Vibro-Pile [2016] VSCA 55 [106]-[108].

[18] [2016] VSCA 55 [148], citing Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, 552 [11].

[22] Ruling [No 2] [34]-[37] (emphasis in original).

[23] (2015) 257 IR 204 ('Baiada').

[25] Ibid 219 [48]-[49] (emphasis added) (citations omitted).

[28] Vibro-Pile [2016] VSCA 55 [131] (citations omitted).

[29] R v Wilson and Grimwade [1995] VicRp 11; [1995] 1 VR 163, 180.

[30] Walsh [2002] VSCA 98; (2002) 131 A Crim R 299, 322 [71].

[31] Crimes (Criminal Trials) Act 1999 s 1 (emphasis added).