Inspector Castro v Stratabuild Pty Ltd

Inspector Castro v Stratabuild Pty Ltd - [2010] NSWIRComm 191 - NSWIRComm 2010 case summary — Zoe

[34]

As a result of the defendant's failures its employee Ivan Vega suffered fatal injuries. 13 In the alternative to the charge pursuant to s 8(1) of the OHS Act, the defendant was charged with a breach of s 10(1) of the OHS Act by failing to ensure that the premises were safe and without risks to health to people who were not its employees, in particular Ivan Vega, while they were at the premises used as a place of work, being the Site. 14 The particulars of the risk and the particulars of the acts or omissions of the defendant in failing to eliminate the risk were in identical terms to the particulars provided in respect of the s 8(1) charge. 15 Mr Acevedo was charged with a breach of s 8(1) by virtue of s 26(1) of the OHS Act. Mr Acevedo was a director of Stratabuild Pty Ltd and thus involved in the management of the corporation. He is therefore deemed to have contravened the same provisions of the OHS Act as are alleged to have been contravened by the corporation. The particulars of the charges alleged against Mr Acevedo are in identical terms to those set out in the charges brought against Stratabuild Pty Ltd, save that in addition there is an allegation that Mr Acevedo "was a director of the corporation." Submissions of the defendants 16 The submissions of the defendants essentially were that there was a duty upon the prosecutor to clearly put to the defendants the charges and the failures of which they are guilty within the circumstances supporting the charges and that it is not sufficient to merely plead in general terms the failures referred to in the OHS Act that may or may not apply to the defendants. It was imperative for the defendants to know precisely the allegations made against them at the commencement of the proceedings. Mr Luitingh submitted that this had not occurred and that the prosecutor had therefore not discharged its duty. 17 In written submissions, counsel submitted: The reasons for Strata seeking the relief of dismissal of the Order and the Application for Order are based upon the principles enunciated by the High Court in Kirk and are set out more fully and conveniently below: (a) The proper approach is that a prosecution under the 1983 Act, and prosecutions are only possible where there is an 'identifiable" risk paragraph [12] in Kirk and hence a prosecution is invalid if the initiating document does not specify with particularity what should have been done by the accused or what the accused failed to do to obviate the risk(s);

[54]

(b) the problem with ( b) (c) and (d) is that it is not site area specific. WorkCover knows exactly where the accident took place, WorkCover also know that the defendants had been working at that site for more than one year. From the charges levelled in these paragraphs , the defendant does not know with relation to what was being carried out on that day what it is alleged was omitted. The defendant is also not advised as to when these work method statements and safety instructions ought to have been given; Is it alleged that it should have been given at the commencement of the contract 12 months earlier? Is it alleged that it should have been given at frequent intervals as a reminder? Is it alleged that it should be given at the commencement of every day? Is it alleged that as work commences on that specific area the instruction should be given and that a supervisor should be supervising two people out of a workforce of 10 or 20 working all over the site ? What are the allegations being put to the defendant is not possible to determine that from these allegations. 19 Counsel submitted that it therefore followed that the application for order did little more than follow the words of s 8 of the OHS Act and that the particulars were inadequate and thus defective in that they did not satisfy the requirements outlined in Kirk. 20 In summary, it was contended that the statements of offences as particularised did not identify what measures the defendants could have taken but failed to take. They do not identify an act or omission which constitutes a contention by the defendants of s 8(2) (sic) (I note that the prosecutor does not allege any breach of s 8(2)). It was further submitted that on a careful reading of the particulars, the "indictment" did no more than provide a description of the events, rather than articulate the specific offence committed by the defendants. It followed therefore that due to the inadequacy of the particulars of the offence, the defendant did not know what measures it was required to prove were not reasonably practicable to make out a defence pursuant to s 28 of the OHS Act. 21 Mr Luitingh also submitted that the prosecutor had a duty to ensure a fair trial and consider material that was capable of inculpating and exculpating the guilt of the accused. Counsel made reference to authorities such as Regina v Puddick (1865) 4 F&F 497; Whitehorn v The Queen (1983) 152 CLR 657; Ratten v The Queen (1974) 131 CLR 510; Mario Anthony Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 and MRW v The Queen [1999] NSWCA 452; (1999) 113 A Crim R 308. Each of these authorities established the principles to be adhered to by the prosecutor. Defendants' supplementary submissions 22 Mr Luitingh was given leave to file supplementary submissions to enable counsel to refer the Court to additional authorities that would indicate that the particulars provided in these matters were inadequate. Counsel re-emphasised his contention that the charges failed, in material respects, to take into account the requirements unequivocally established in Kirk, relying in particular, on Kirk at [10] - [26]. 23 Counsel submitted that "if on a scrutiny of the particulars of a charge the Court forms the view that any particular charge is inadequate that particular charge should not be permitted to remain on the charge sheet and should be struck out so that the defendant faces only valid charges under the Act." 24 Mr Luitingh also submitted that contrary to the prosecutor's submissions that any defect could be cured by the provision of particulars, such a submission was in direct conflict with Kirk, which held that the charges must be brought within two years of the offence being committed (at [12]). 25 Counsel provided a further extensive analysis of the defects in the particulars, with specific references to paragraphs in the judgment of the High Court in Kirk and also Johnson v Miller (1937) 59 CLR 467, that supported the contention that the particulars were defective. Submissions of the prosecutor 26 In written submissions, Mr Magee acknowledged that: (i) The authorities make clear that a defendant to a criminal charge is entitled to know with particularity the case that it has to meet: see Johnson v Miller (1937) 59 CLR 467; King v R (1986) 161 CLR 423; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508;

[72]

31 The prosecutor contended that consistent with the analysis of the Court of Appeal in John Holland, the applications for order in these matters complied with the relevant statutory provisions in the CP Act and the Industrial Relations Commission Rules 1996 (repealed) ("the Rules"), in that they clearly state the nature of the offence with which each defendant is charged. 32 Counsel submitted that when regard is had to the applications for order in these matters, in their entirety, it is apparent that the offence is appropriately identified in the document as a whole. Consistent with the reasoning of the Court of Appeal in John Holland, counsel submitted that "the fact that the charges list a range of matters, facts and actions, as constituting a single offence, does not raise a problem or duplicity by virtue of the operation of s 31 of the OHS Act." 33 Counsel further observed that the Court of Appeal noted at [72] that even if there were an "impermissible combination of contraventions [it] would not lead to a quashing of the charge as a whole." Principles 34 The High Court stated in Kirk that the charges under consideration (s 15 and s 16 of the Occupational Heath and Safety Act 1983 (the "OHS Act 1983"), now s 8(1) and s 8(2) of the OHS Act) must identify the act or omission said to constitute a contravention of those provisions and that in many instances, this required specification of the safety measures which should have been taken by the alleged offender. The High Court stated that this was critical if a defence under s 53 (now s 28 of the OHS Act) was to be enlivened. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Heydon J agreeing with the plurality's orders with one exception which related to costs, observed at [18]: The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. ... ... The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53. 35 The High Court held the acts or omissions the subject of the charges had to be identified if a defendant was to be able to rely upon a defence under s 53. In that case, the defendants were not in a position to satisfy the defence because they had not been informed what measures they were required to take and were therefore not in a position to prove that the taking of those measures was not reasonably practicable (at [50] - [53]). 36 In Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189, the Full Bench considered the requirement for pleadings in respect of applications for order filed under the OHS Act. After considering various authorities and the relevant statutory provisions (at [36]), the Full Bench observed at [37] - [38]: [37] Thus, an Application for Order must comply with the requirements of r 217B, but it must also comply with the common law principles. That means the Application must contain: a. the name and address of the person by whom the proceedings are brought ( the prosecutor ), and

[83]

It seems, therefore, that the joint judgment in Kirk was not intending that a 'statement of offence' was constituted solely by a statement of the essential legal elements, but rather such a statement was constituted by a description of the legal nature of the offence, the essential factual ingredients and any other particulars to better inform the defendant of the charge it has to meet. In other words, all these matters together constituted a valid information or Application for Order. 41 Recently, the Supreme Court of New South Wales, Court of Appeal in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 (Spigelman CJ, Beazley and Giles JA agreeing) considered in detail the requirements of a valid charge under the OHS Act. The principal submission advanced for John Holland was that the charge and the particulars did not identify contraventions in accordance with Kirk. The Chief Justice, relevantly, stated at [56], [65], [67], [71], [78], [79] as follows:: [56] ... An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked. ... [65] The fact that the Application for Order expresses a range of matters in terms of a single offence does not, in the specific context under consideration, raise the kind of issues of duplicity which often arise in a criminal prosecution. That is by reason of s 31 of the OH&S Act, which I have set out at [15] above. ... [67] Section 31 permits "more than one contravention" to "be charged as a single offence". Nevertheless, the charge must identify each alleged "contravention". It is to the principles established in Kirk that reference must be made as to whether the contraventions, pleaded as a single offence, have been validly stated. ... [71] In my opinion, it is not necessary to expressly plead the "factual circumstances" said to be the same for purposes of s 31(1). Section 31(1) is facultative and permits a course which common law principles of duplicity would not permit. Nevertheless, so long as each contravention is appropriately identified it will be possible to determine whether or not the respective alleged contraventions arise from "the same factual circumstances". ... [78] 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, [79] I do not assess every reference to 'adequacy' as the applicant did not seek to make out a case on the basis of each such particular. The possibility of further particularisation does not detract from the validity of the charge for purposes of determining whether or not the Industrial Court has had its jurisdiction properly invoked. Since writing [77], [78] and the preceding sentences of this paragraph I have read the additional comments of Giles JA on the 'adequacy' submissions and I agree with his Honour's comments. Consideration 42 There can be no doubt that the High Court's judgment in Kirk represented a seismic shift in the approach that this Court had taken in respect of prosecutions brought pursuant to various provisions of the OHS Act. To my mind, if the applications for order under consideration in these matters do not survive the High Court's decision in Kirk, it is difficult to contemplate what pleading would be sufficient. 43 In demonstrating why I have reached this conclusion, I propose to apply the principles available from the High Court's decision in Kirk, the Court of Appeal decisions in John Holland Pty Ltd v Industrial Court of New South Wales; Downey v Acting District Court Judge Boulton (no. 5) [2010] NSWCA 240, Rockdale Beef and this Court's judgment in Inspector Hamilton v John Holland. Before doing so, it is appropriate to bear clearly in mind that the plurality stated in Kirk, after setting out the common law requirements, that an application for order under the OHS Act containing a statement of offence "must at the least condescend to identifying the essential factual ingredients of the actual offence" (at [26]. The plurality identified the fatal defects in the application for order in that matter as being: "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)." (at [28]) 44 In Downey, the Court of Appeal distinguished Kirk from the facts of the matter that the Court was there considering. Basten JA stated at [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. ... 45 I turn to consider whether the applications for order identify the essential elements of the offences. In my view, the applications for order adequately identify the specific statutory provision that it is alleged the defendants have contravened, together with the nature of the offences that are alleged in the words of the relevant statutory provision, being s 8(1), s 10(1) and s 26(1) of the OHS Act. I also conclude that the requirements of r 217B of the Rules are met. The application for order in Matter No IRC 195 of 2010, the alleged s 8(1) breach, identifies: (a) the name and address of the person by whom the proceedings are brought: 'Inspector Vince Castro, of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales';

[90]

(d) There was a causal nexus between the defendant's alleged breach and the risk to employees' health, safety and welfare: The application for order pleads the particular ways in which the defendant was alleged to have failed to ensure the health, safety or welfare of its employees, and that "the health and safety of employees of the defendant was put at risk of injury from falls whilst accessing work areas at heights and working at height at the Site." And that "As a result of the defendant's failures its employee Ivan Vega was placed at risk of injury." And further that "As a result of the defendant's failures its employee Ivan Vega suffered fatal injuries." 49 An identification of the relevant legal elements in the application for order in respect to the alternative s 10(1) charge provides similar answers to those set out above as does an analysis of the s 26(1) charge. 50 The applications for order, to my mind, adequately describe how it was the defendants failed to ensure safety. As was observed by Basten JA in Rockdale Beef at [130]: ... it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b). 51 Arguably, the "defect" in the pleadings being considered in Rockdale Beef was a more significant one than the "defects" that the defendants assert are present in the charges in these matters. The "defect" in Rockdale Beef involved a failure to plead an essential legal element of the charge. No such assertion can be made in respect of the charges in this matter. 52 Similarly, reliance by the defendants on R v Halmi [2005] NSWCA 2; (2005) 62 NSWLR 263, a decision of the Court of Appeal, is not relevant to the matters under consideration here. In Halmi, the defect in the indictment arose because the indictment was signed by a barrister in private practice who had been briefed to appear on behalf of the Director of Public Prosecutions at the trial. The barrister was not a person authorised to sign indictments on behalf of the Director of Public Prosecutions. The indictment upon which the appellant was arraigned and upon which his trial proceeded was invalid. It followed that the trial was a nullity, and the verdict and conviction had to be quashed. There is no contention in these prosecutions that Inspector Castro was not properly authorised to institute proceedings.

[100]

57 Therefore, in my view, it cannot be contended that the defendants do not know what measures they were required to prove were not reasonably practicable. The particulars enable the defendants to rely upon any statutory defenses that may be available under s 28 of the OHS Act. 58 It must follow that the contentions of the defendants that the charges do not state all the essential ingredients of the offence; that there is uncertainty or ambiguity in the charges and that there are ingredients missing which cannot be implied from the charge or the supporting affidavit of the prosecutor cannot be sustained. I find that the applications for order are consistent with the principles laid down by the High Court in Kirk and by the Court of Appeal in John Holland. 59 Spigelman CJ in John Holland stated that the charges should be read as a whole, including the particulars supplied in the application for order. The application for order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked (at [56]). 60 When regard is had to the applications for order in these matters, in their entirety, it is apparent that the offence is appropriately identified in the document as a whole. The fact that the charges list a range of matters, facts and actions as constituting a single offence, does not raise a problem or duplicity by virtue of the operation of s 31 of the OHS Act. 61 It is apparent that the charges validly identify each alleged contravention. Further, each contravention arises from the same factual circumstances. In any event, as emphasised by Mr Magee the Chief Justice observed in John Holland at [72], even if there were an "impermissible combination of contraventions [it] would not lead to a quashing of the charge as a whole." 62 The relevant contraventions are identified in the chapeau of each of particulars (b), (c) and (d). The further particulars identify a range of facts and matters each of which would meet the description of a "particular measure" as I have set out earlier in these reasons. 63 To my mind, what should have been done to avoid exposing employees or other persons to the named risk has been adequately pleaded, consistent with the analysis of the Chief Justice in John Holland at [112]. 64 Furthermore, the defendants' supplementary submissions that Kirk was also authority for the proposition that particulars could only be amended within two years of the offence being committed, is not a correct statement of the law. What the plurality stated in Kirk at [30], was that "the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges". The plurality did not state that such particularisation must occur within two years of the offence being committed. 65 In determining whether there is a valid charge, as opposed to finding that the charges had been proved by the prosecutor beyond reasonable doubt, the Court only need consider whether the charge was commenced in compliance with r 217B of the Rules, was commenced within the time prescribed in the OHS Act, pleads the essential legal elements of the charge and the essential factual ingredients of the charge. 66 Although both parties advanced some short submissions directed to the power of the Court to permit amendments to the applications, it is unnecessary to consider these submissions as there is no application to amend. Nor is it necessary, in light of the conclusion that I have reached, to deal with the defendants' submissions regarding the prosecutor's duty, or the submissions that place reliance upon the High Court's judgment in Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 as I have found that the charges were sufficient in law to properly engage the jurisdiction of the Court. In any event, Lane v Morrison involved the High Court considering whether particular provisions of the legislation empowering the Australian Military Court were constitutionally valid. That matter is clearly distinguishable from the matters being considered here. 67 What essentially is sought by the defendants, as demonstrated from the defendants' submissions, are further and better particulars of the charges which, to date, have not been sought. The defendants' submissions at times appear to confuse the concept of the charge contained in the applications for order and the particulars of the charge. It is still open to the defendants to seek the provision of further and better particulars of the charges. 68 Such a complaint was dealt with by the Court of Appeal in Downey where Basten JA stated at [53]: If the pleadings were deficient in failing to identify an essential element of either offence, it may not matter whether the issue was raised by a challenge by way of demurrer before the trial, or in the course of the trial, or not at all in the trial court. A conviction based on a charge not revealing an offence against the law will be invalid. However, if the complaint is in truth one of a failure to provide particulars, which were not sought at or during the trial in the Local Court or on appeal, a different analysis is required and invalidity will not usually result. In the present case, the complaint is no more than a failure to provide particulars which were not sought but may (though not inevitably) have been ordered if sought. The challenge to the validity of the proceedings and the resulting conviction on this ground is rejected. 69 During oral argument, Mr Luitingh focused on the accident which had occurred. Such submissions were misconceived as it is the risk to employees and non-employees' health and safety which is relevant. In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364, the Full Court stated at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. 70 For the foregoing reasons, I consider that a case has not been established by the defendants that the applications for order filed by the WorkCover Authority of New South Wales on 19 March 2010 in Matter No IRC 195 and 196 of 2010 should be dismissed. ORDERS 71 I make the following orders:

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