Background
8On 24 August 2009, pursuant to s 246(1) of the Criminal Procedure Act 1986, as applied by s 168 of the Industrial Relations Act 1996, the defendant was ordered to appear before the Court to answer the offence charged in the Application for Order.
9The defendant has not entered a plea and no trial date has been fixed.
10Although filed later in time, it was agreed that the Court would firstly consider the defendant's Notice of Motion which claimed the pleadings contained in the prosecutor's Application for Order were so vague as to make the summons invalid. The grounds relied upon were twofold, namely, there was a failure to identify the specific acts/omissions which would establish the breach and the measures that should have been taken and, secondly, there was a failure to specify the risk to safety.
11Pursuant to s 11 of the Criminal Procedure Act 1986, where there is no "fair information and reasonable particularity as to the nature of the offence" the charge is considered invalid ( Smith v Moody [1903] 1 K.B. 56, at p. 60; see also: De Romanis v Sibraa [1977] 2 NSWLR 264 (at 291); John L. Pty Ltd v Attorney-General for the State of New South Wales (1987) 163 CLR 508; Lodhi v The Queen (2006) FLR 303).
12In its form and on its face the first Application for Order provided a generalised pleading of the asserted failures and the asserted risk but there was no specificity in either pleading. Reliance was placed in submissions by both parties on the effect of the reasoning, in a series of (then) recent cases, as to in what circumstances the prosecutor can amend an Application for Order and what a Court is required to consider to allow such an amended Application (see Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531).
13However, after judgment was reserved, each party requested judgment be withheld on both Motions pending a consideration by the New South Wales Court of Appeal on the issue of the ambit of allowable amendments to Applications for Order issued by the WorkCover Authority and the applicable test.
14That judgment is now at hand. The New South Wales Court of Appeal addressed the question as to the power of a prosecutor to amend an Application for Order in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157. Hodgson JA (who wrote the principal judgment but was otherwise joined by Allsop P and Basten JA) reasoned as follows at [32] - [36]:
32 The High Court decision in Kirk does establish that it is necessary that a statement of the offence identify the act or omission of the defendant said to constitute the offence, and that in the case of omission this requires identification of the measures that should have been taken to address the relevant risks.
33 However, it did not decide that this requirement displaced ss 11 and 16(2) of the CP Act , which relevantly restricted objections that may be taken to the form of charges, noting the extended definition of "indictment" given by s 15 of the CP Act . Rather, the High Court in Kirk held that s 11 did not dispense with the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular act, matter and thing alleged as the foundation of the charge: see Kirk at [26] - [30]. The High Court did not rule that this particularisation had to occur at the time the charge was first brought, but based its decision on the point that the matter should not have proceeded without further particularisation.
34 It is true that in John L , a majority of the High Court held that a lack of particularity in a charge as originally brought was fatal, but it also held that provisions of the nature of ss 11 and 16(2) of the CP Act did not apply. In Johnson v Miller (1937) 59 CLR 467, it was plainly contemplated that the common law requirement of particularisation could be satisfied by various means, not limited to full particularisation in the complaint or charge itself: see at 490 per Dixon J, at 497-8 per Evatt J, and at 501 per McTiernan J.
35 Accordingly, in the present case, if the particulars of the charges as given in the original charges were deficient, particulars could be provided in other ways.
36 Further, in this case there is an outstanding application to amend the charges. It seems clear that such an amendment can be granted, at least unless it were to substantially change the nature of the charge: see CP Act ss 20 and 21 (read with the definition of "indictment" in s 15(2), IR Act s 170.)
His Honour went on to reason the following at [38] - [40]:
38 On the question whether the amendment now sought is so substantial as to amount to the bringing of different charges, that question would normally be one for consideration by the court dealing with the application for amendment. However, prima facie it would appear that the additional particulars given in the amended charge do no more than further particularise the earlier particulars, notably particulars d. and e. in the original charge, in the case of proceedings IRC 536 of 2009.
39 It was submitted that even with the additional particulars proposed to be added by the amendments, the requirements of Kirk would still not be satisfied. It is not necessary to rule on this. However, I note that, in my opinion, the question of adequacy of particulars in a case like this may need to be addressed having some awareness of the evidence that has been supplied to the defendant by the prosecution. It is true that the admissibility of evidence depends upon the terms of the charge and the particulars; but this may not necessarily preclude regard being had to the context provided by the evidence in order to assess whether the particulars are sufficient to inform a defendant of the case to be made out.
40 It may possibly be that Marks J was in error, therefore, in having no regard to the prosecution's initiating affidavits; but such an error would not in my view be a jurisdictional error or a denial of procedural fairness. In any event, to quash the decision of Marks J on that basis would not give the applicants any useful relief.
And Basten JA reasoned at [80]:
In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention should be rejected. The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law. Neither principle will necessarily be breached: the orders by which the proceedings were commenced were not invalid.
15Spigelman CJ in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 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]).
16Coles mounts a twofold attack opining the original Application for Order does not identify the risk to which the employees were allegedly exposed and, secondly, it does not identify the acts or omissions said to constitute the contravention and to identify the measures the prosecutor alleged Coles could/should have taken to avoid the risk ( Kirk ).
17Adopting the approach of this Court in Inspector Hamilton v John Holland (at [103]), the essential legal elements of the charge under s 8(1) of the Act are that the defendant was an employer at the time of the alleged breach; that there was a risk to employees' health or safety; that there was a causal nexus between the defendant's breach and the risk to employees' safety; that the risk was to employees at work.
18In my view, the essential legal elements are met in the original Application for Order as follows:
i. the defendant was an employer at the time of the alleged breach: the original Application for Order pleads the defendant as being an employer on the relevant date at the relevant place of work;
ii. that there was a risk to employees' health or safety: the risk is identified as arising from employees having to access the storage area in the roof access room;
iii. that there was a causal nexus between the defendant's breach and the risk to employees' safety: the nexus was identified in the generalised particulars when it was pleaded "[a]s a result of the defendants' failure" the named employees were placed at risk and/or suffered injury;
iv. that the risk was to employees at work: the place and time were identified and, as to those who suffered injury, the employees were named.
19As was observed by Basten JA in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 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).
20I am satisfied the original Application for Order contains all the essential legal elements necessary for a charge and is, therefore, a valid charge. It pleads the essential legal elements of the charge and the essential factual ingredients of the charge.
21I am further satisfied the "risk" is clearly identified through the facts pleaded in the Application as a risk to particular persons identified, one of whom suffered injury, arising from the asserted failures by the employer who did not ensure their safety when retrieving goods from the roof access room.
22I therefore reject the Notice of Motion of the defendant, Coles Supermarkets Australia Pty Ltd.
23The prosecution, in its Notice of Motion, asks for leave to amend the Application for Order under s 170 of the Industrial Relations Act 1996 and s 20 of the Criminal Procedure Act 1986. Under s 170(1) of the Industrial Relations Act 1996, the test is whether the proposed amendment is considered to be "necessary in the interests of justice." The purpose of the amendments proposed is to further particularise what are the alleged acts or purported failures to establish the breach and better inform the defendant of those acts and the measures it should have taken. In that particularisation, the "risk" is also further identified. Section 170 of the Industrial Relations Act 1996 provides the following:
170 Amendments and irregularities
(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).
(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.
(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.
24The prosector has conveniently supplied a document containing a comparative of the original pleadings and the proposed amendments. I am satisfied, while the original document met the basic legal requirement, the amended Application particularises with greater specificity the acts and/or omissions relied upon to establish the asserted breach and the measures that should have been taken and that, in the particularisation, there can be no doubt as to the specificity of the identified risk. I am further satisfied that it is in the "interests of justice" that the amendment be allowed.
25I do not accept the Court should go so far as to assess the adequacy of the particulars. That will be a matter of evidence (see G.P.I (General) per Allsop P at [3]).
26I therefore give leave to the WorkCover Authority to file the amended Application for Order.