Inspector Gregory v Bindon

Judgment 1Inspector Childs, a WorkCover inspector, has commenced two prosecutions alleging breaches of the Occupational Health and Safety Act 2000 ("the OHS Act"). Those proceedings were commenced in 2008 in relation to a workplace accident that occurred at a timber and plywood factory in February 2007. 2The applications for order alleged a breach of s 8(1) of the OHS Act by the corporation, and also a breach of s 8(1) of the Act by the director via the operation of s 26 of the Act. Pleas of not guilty were entered in May of 2009. The matters were listed for trial in late April of that year. Prior to that, the defendants filed a Notice of Motion seeking a stay until the High Court decided the matter of Kirk, later reported as Kirk v Industrial Relations Commission of New South Wales [2010] 239 CLR 531 ("Kirk"). That Notice of Motion was dismissed with costs by consent with costs to be costs in the cause. 3Like so many occupational health and safety prosecutions these cases were bedevilled by a line of challenges after Kirk that mainly occurred in the Court of Appeal, although some found their way to the Special Leave List of the High Court. All challenges suggested fundamental defects in the prosecution's pleadings in occupational health and safety matters. Because of the alleged seriousness of these challenges by and large there was no movement in the Court's list for many occupational health and safety prosecutions. These two cases fell into that category. 4Ultimately, in March 2012, the Court heard argument on two sets of notices of motion. For the prosecutor, application was made to amend the particulars in each charge to reflect the requirements of the legislation as found by the High Court in Kirk. These applications for amendment were opposed by the defendants. The defendants claimed in their notices of motion that the Court lacked jurisdiction to determine the prosecution, that there should be a declaration that the order was invalid, null and void and an order dismissing or permanently staying or striking out the prosecution. The defendants' focus was on the allegation that the purported charge did not contain all the essential legal elements of the alleged offence, that is, it did not identify acts or omissions alleged to have constituted the offence and there was no identification of the measures the defendant was required to take. 5After argument on these notices of motion were completed, and the decision reserved, the Court was reminded that very similar, if not identical, points were being raised in the Court of Appeal in Area Concrete Pumping Pty Ltd v Inspector Childs [2012] NSWCA 28 ("Area Concrete") The parties were advised therefore that no judgment in these two matters would be delivered until the Court of Appeal had determined the challenge in the Area Concrete case. That challenge in the Court of Appeal followed a determination by this Court in Inspector Childs v Serena & ors (2011) NSW IRComm 32 ("Serena") where foreshadowed amendments were allowed to the applications for order to meet the requirements of the decision in Kirk. An appeal to the Full Industrial Court was instituted but leave to appeal was refused. 6The Court of Appeal in the Area Concrete case rejected applications for orders in the nature of certiorari and prohibition directed to the Industrial Court. Therefore, the challenge to the proposed amendments failed. The history of the proceedings in the Serena and Area Concrete matters bear some analysis because of the similarity of issues raised in the two matters now before the Court. 7At first instance, in this Court, in the matter of Serena, the Inspector sought to substantially amend the particulars to add greater particularity by referring to the alleged acts or omissions in each case: this step was said to be necessary to comply with the requirements of pleadings found by the High Court in Kirk. The defendants challenged the Statement of Offence in each matter and said that they did not state or appropriately state the relevant risk to health and safety to the defendant's employees or non-employees. It was submitted that there was a need for precision in the statement of contravention alleged. 8The Court, in dealing with those submissions, focussed on two judgments: a decision of the Court of Criminal Appeal in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 ("Taylor") and a judgment of the Court of Appeal in McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority (No. 2) (2002) 54 NSWLR 39 ("McConnell Dowell"). In Taylor, a distinction was drawn between the essential factual ingredients of an offence and particulars required merely to ensure that the defendant was able to prepare his or her defence. The summons in that case did not specify the essential ingredients of the alleged offence. It specified the legal elements of the alleged offence but not the acts or omissions by which the appellant was alleged to have carelessly disregarded instructions the subject of the charge. The Court noted that a distinction was drawn between an information which failed to specify the legal elements of an offence and those where essential factual particulars had not been given. The first was fatal and the proceedings could not be saved. Where the legal elements of the offence were specified and the defects lay only in the failure to specify essential factual particulars, those matters could be amended and the prosecution would not be invalid. 9The same distinction was drawn in McConnell Dowell . In that case, there was an allegation of an act of polluting. The relevant Act defined pollution in a number of ways so that the offence could be committed in a number of ways. The Court noted that the authorities did not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It was generally accepted that the legal elements consisted of the matters of law that must be established for the offence to be made out and the essential factual ingredients concern the time, place and manner in which the offence was committed. The Court said that the legal elements of a particular offence would ordinarily be constant. In this way the legal elements differed from the essential factual ingredients. 10That case concerned a statutory offence and the term "pollute". That was the allegation - there was a pollution contrary to the Act. The Court noted that there were several ways in which a person may pollute waters, namely, the ways defined in the statute. That being so, the language of the statute was such that the relevant legal element of the offence was the act of polluting. The particular way in which the defendant was alleged to have polluted concerned the essential factual ingredients of the charge. Those matters were able to be amended. 11That approach was then considered by the Court of Appeal in Area Concrete. There were two judgments: a judgment of Bathurst CJ and a separate judgment by Basten JA, with Hoeben JA agreeing with the Chief Justice and the orders proposed, and also agreeing with the additional observations of Basten JA. 12In the judgment of the Chief Justice attention was drawn to the provisions of r 217B of the Industrial Relations Commission Rules 1996. Those rules laid down the manner in which prosecutions were to be commenced in this Court. Amongst other things, an application had to state the Act and the section under which the defendant was alleged to have committed an offence and the nature of the offence that was alleged. Before the Court of Appeal the applicants submitted that the particulars in the statements of charge suffered from the same insufficiency as did the particulars in Kirk, namely, they failed to identify the particular act or omission said to constitute a contravention of the Act. In that case (though, I must say, on appeal and not at first instance), the prosecutor relied on a single particular as constituting a valid prosecution and identifying the legal and factual elements of the charge. The Court upheld that submission. 13At par 25 of the Chief Justice's judgment, he noted that the applicants had contended that the distinction between legal elements that could not be cured and essential factual elements that might be rectified as identified in Taylor and McConnell Dowell should no longer be recognised. Alternatively, the effect of Kirk was that the inclusion of certain essential factual particulars was now itself an essential legal element of the offence. That is an argument that has again been raised in the two proceedings now before this Court. 14The Chief Justice noted the submissions that the decision of the Court of Appeal in Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales (2007) 165 IR 7 reflected the modern recognition that rather than determining the adequacy of a charge by characterising defects as either legal elements that must be present or factual elements that may be amended it was necessary to consider the specific legislative framework to determine whether defects in the charge were capable of rectification. 15In par 29 the Chief Justice noted that in GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 ("GPI (General") it was held that an inadequate Statement of Charge could be amended. At par 45 the Chief Justice returned to the decision of Hodgson JA in GPI (General) noting that, although Kirk held that it was necessary that the statement of the offence identify the act or omission of the defendants said to constitute the offence and in the case of omission identify the measures that should have been taken to address the risk, it did not decide that this requirement displaced s 11 and s 16(2) of the Criminal Procedure Act 1986. Rather, the judgments in Kirk found 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 matter and thing alleged as the foundation of the charge. Hodgson JA emphasised that the High Court in Kirk did not say that the particularisation had to occur at the time the charge was first brought. 16At par 47 the Chief Justice stated that in his opinion GPI (General) was authority for the proposition that a failure to adequately particularise a charge would not, without more, render it a nullity (at least provided the charge described an offence known to the law): that, having regard to the provisions of s 16(2) of the Criminal Procedure Act and s 170(3) of the Industrial Relations Act 1966 ("the IR Act"), defects could be cured by amendment to the charge or by subsequent particularisation, absent procedural unfairness. In par 49 other authority was cited for the proposition that even where there was an inadequately described offence that inadequacy would not necessarily render the offence unknown to law such that jurisdiction was lost and amendment provisions could not operate. 17In par 59 His Honour referred to the contents of the affidavit filed by Inspector Childs in that matter, setting out the facts and the omissions alleged against the applicants that accompanied the applications for order. It was noted that Hodgson and Basten JJA in GPI (General) had said that an offence may be validly particularised by way of affidavit in some circumstances. In par 64 the Chief Justice said it was possible that even if one particular adequately charged the act or omission, the inclusion of a number of others that do not do so would be fatal to any conviction based on the charge: this would follow where the defendants were, as a result, denied the opportunity to put a defence. 18In the separte judgment of Basten JA it is sufficient to note that His Honour embarked upon a course of analysing the procedural statutory provisions, including s 170 of the IR Act and the power to amend proceedings. At par 99 His Honour noted that consistently with the judgment in Kirk a charge "could not form the basis of a valid conviction unless it specified the measures which the offender should have taken to avert the risk" to health and safety but did not take. His Honour noted statements in John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 that absent a relevant curative provision, the common law requirement remained that an information must at least condescend to identify the essential factual ingredients of the actual offence. On analysis it was found, as the Chief Justice had found, that there was one par of the particulars that properly charged an offence known to law and therefore the Industrial Court did not lack jurisdiction to deal with the prosecution. His Honour then proceeded to consider the situation if that conclusion was wrong. 19His Honour noted the submission that the defect was a failure to allege all the elements of the identified offence. The time and place of breach was identified - the defect being the absence of the specific step that might be taken or should have been taken but was not. It was submitted that that this last step was an essential legal ingredient of the offence. Moving on that basis, His Honour concluded that a non-compliance of that nature nevertheless fell within the terms of s 170(3) of the IR Act. The reference in that section to non-compliance being treated as an irregularity and as not nullifying the proceedings recognised that it extended to failures to comply which could, absent that provision, nullify the proceedings. Those are the authorities that bind this Court in dealing with this particular matter. 20Before embarking on an analysis of the original application for order, it should be noted that although the Court of Appeal was specifically asked to overturn Taylor and McDonnell Dowell in terms it did not do so. It may well be that the Court of Appeal prefers the approach of determining these matters by construction of the relevant statutes but it may also be the fact that there is not a great deal of difference between the two approaches: the analysis in McConnell Dowell centred on a question of statutory construction. 21 Firstly, it is appropriate to consider whether there was a valid charge in these matters. Because of the similarities in the pleadings I do so by reference to the application for order against the corporation, Big River Timbers (Veneer) Pty Ltd. That application for order set out the necessary matters of identifying the Inspector and the authority of the Inspector to commence proceedings. It alleged an offence against the corporation at an identified place in Junction Hill. It was alleged that the corporation being an employer, on 13 February 2007 failed to ensure the health, safety and welfare at work of all its employees (and in particular a named employee) contrary to s 8(1) of the OHS Act. e . At this point the application for order framed a charge in terms of s 8(1) of the OHS Act and satisfied aspects of s 11 of the Criminal Procedure Act. 22There were six particulars of the charge. The first particular stated that the defendant failed to provide plant, in particular the LM saw unit and all related parts ("the plant") that was safe and without risk to health when properly used. That particular identifies the plant and, without more, may not be sufficient. Particular 2 stated the defendant failed to ensure that the moving parts of the plant were guarded. Particular 3 stated that the defendant failed to provide safe designated walkways and/or access paths around the plant and including around the moving parts of the plant. At this point not only has the application for order identified the section under which the offence has been brought, but it has identified the risks, namely, that there was a risk to safety of employees being caught up in moving parts of a plant, namely, the LM saw. Clearly enough, part of the omissions were a failure to guard that plant and to provide walkways or access paths around that plant so that contact would not be made with the unguarded parts of the plant. 23It might be said that Particulars 4, 5 and 6 dealing with a failure to conduct an adequate risk assessment, failure to have a safe system of work in relation to the operation of the plant, and a failure to provide sufficient information, instruction and training and supervision of the operation of the plant required more particularisation in order to conform with the requirements of Kirk. Importantly, at the conclusion of these particulars the Inspector stated: As a result of the defendant's failures its employees and in particular a named employee was placed at risk of serious injury. On the face of it, in relation to the first three particulars, that appears to the Court to be a valid charge. 24It will be noted that in Area Concrete the Chief Justice made reference to occasions when it may be appropriate, when dealing with a challenge to the validity of a prosecution, to look at the affidavit in support of the charge. In this case, Inspector Gregory swore an affidavit on 22 December 2008, and the affidavit was filed in support of the application for order. 25In par 10 the Inspector stated that: On 13 February 2007, at approximately 2.40pm Mr Carey sustained a major crush injury to his right foot resulting in the amputation of Mr Carey's right foot as a result of walking onto a moving log conveyor known as the LM saw unit. Paragraph 11: The injury occurred when Mr Carey's right foot became caught in the unguarded chain and sprocket drive of the unit. In par 12 the components of the LM saw unit were listed, including the fact that two metal loading decks held pre-cut timber logs, and that there was a conveyor in excess of 30 metres in length that used rotating metal rollers called pineapples that were designed to grip timber logs so as to move them along the conveyor. In par 16 it was stated: Mr Carey exited the control cabin, walked across the pineapple roller conveyor unit and continued walking under the elevator to the switchboard. He reset the electrical switch. In par 18: As Mr Carey placed his right foot on the chain near the sprocket of the pineapple roller conveyor, the lathe started up and pulled Mr Carey's right toe and foot into the nip point formed between the chain and the sprocket. In par 34 he stated there were no nip guards to the pineapple roller conveyor component of the LM saw. In 36 he said: As the nip guards deteriorated they were removed and never replaced. In 37: This lack of guarding issue was never raised through the OHS consultative mechanism in place either by the employees, or the maintenance staff, or the member of senior management who was aware of this previous safety feature. In par 40 the Inspector spoke about a previously issued improvement notice to take corrective action in relation to a lathe, trim saw and hot press noting that there were inadequately guarded nip points, moving parts and dangerous parts to the plant used to undertake plywood manufacture. In par 64 the Inspector stated: At the time of the incident the defendant had not provided its employees with designated walkways and/or access paths around the LM saw unit, including the related parts of the saw and the moving parts. In par 66 it was stated: Risk elimination options such as providing designated walkways/access ways, in-fills and traffic control measures were either not considered or occurred infrequently. 26I have referred to the affidavit of the Inspector Gregory, because in essence the defendant submitted that there was a failure to identify the relevant risk in the Statement of Charge and, thus, there was an omission of an essential legal element. The defect was identified by the defendants as a failure to identify a risk created by a nip point where persons were crossing the conveyor belt of the saw unit and a failure to plead the exposure of the nip point, the existence of the conveyor belt and any relevant crossing. It appears from the paras identified from the affidavit of the Inspector that these elements were all exposed to the defendants: not only the serious injury received by the employee as evidence of the nature of the risk, but the risk of being exposed to unguarded nip points and methods by which this might be overcome, including guarding the nip points and making provision for safe walking paths that avoided crossing the machinery and coming into contact with the nip points. 27Having concluded that there is a valid prosecution, there are some failures in the particulars to meet the requirements of Kirk. Adopting the approach in Area Concrete and accepting for the purposes of the this argument that the acts, omissions and the risk are required to be pleaded as part of the legal elements of the offence, prior to conviction, any failure by the prosecutor here to do so is cured by s 170 of the IR Act. In written submissions for the defendants, there were some submissions alleging that, on analysis of the pleadings, there were new charges. The Court cannot accept that submission on the analysis just conducted. 28 The Court, therefore, determines that the defendants' notices of motion challenging the validity of the proceedings be dismissed. The Court determines that the prosecutor's Notice of Motion providing further particulars, as required by the High Court decision in Kirk is granted. 29In written submissions the defendants made brief submissions regarding costs. The Court is of the view that costs may only be considered at the conclusion of a prosecution, although there is an exception that is not relevant here. There has been something of a practice to have proceedings of this nature dealt with by an order that costs should be costs in the cause and/or left to be determined at the end of the proceedings. That is a course that I would adopt in this case and costs shall be costs in the cause. 30I should note that there was a further submission for the defendants concerning delay that might have some impact on the question of costs. It was submitted that the charges were always defective in some way and the delay incurred was not the fault of the defendants. To a certain extent that is true, but the real delay was in waiting for the superior courts to deal with the stream of objections taking these type of points in relation to O H & S pleadings and it was proper to await those decisions before determining these present notices of motion. The defendants took precisely that course when they sought a stay of the proceedings until Kirk was decided by the High Court. That fact is no justification for a different costs order in this matter. It was also submitted that there would be irreparable prejudice to the defendant receiving a fair trial in waiting for so long. That is a submission that cannot be made out by a mere submission but requires evidence. The Court is unable to act on that bare submission made by the defendants. 31Lastly, in order to be able to follow the argument there will be annexed to the judgment the original application for order in the case of the corporation and the amended application for order sought by the prosecutor. The notices of motion are determined as indicated. The matter will be re-listed in due course to programme the trial and to hear from the defendants the course they wish to adopt regarding their guilty pleas in light of this judgment. Annexure