Inspector Hamilton v John Holland Pty Ltd

Inspector Hamilton v John Holland Pty Ltd - [2010] NSWIRComm 72 - NSWIRComm 2010 case summary — Zoe

[6]

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; (1993) 53 IR 21 Broome v Chenoweth (1946) 73 CLR 583 Campbell v Hitchcock [2003] NSWIRComm 148 Chugg v Pacific Dunlop Ltd [1988] VR 411 Cooper v Coffs Harbour City Council [1997] NSWSC 598; (1997) 98 A Crim R 340 De Romanis v Sibraa (1977) 2 NSWLR 264 Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos [2008] SASC 197; (2008) 101 SASR 339; (2008) 174 IR 80 Doja v R [2009] NSWCCA 303 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76; (2007) 170 A Crim R 542; (2007) 69 NSWLR 507; (2007) 153 LGERA 173 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 John L Pty Limited v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Johnson v Miller [1937] HCA 77; (1937) 59 CLR 476 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 262 ALR 569 CASES CITED: Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83 Lodhi v R [2006] NSWCCA 121 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39 R v Australian Char Pty Ltd [1999] 3 VR 834 R v Cassell (Court of Criminal Appeal, 24 July 1996, unreported) R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 R v McVitie [1960] 2 QB 483 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Santos Limited v Markos; Diemould Tooling Services Pty Ltd v Oaten [2008] HCATrans 372 Stanton v Abernathy (1990) 19 NSWLR 656 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 Videon v Barry Burroughs Pty Ltd (1981) 53 FLR 425 Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77; (1996) 139 ALR 27 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd [2003] NSWIRComm 35; (2003) 126 IR 1 Workcover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119

[32]

16 Relevantly, it was held in Kirk that a statement of an offence must identify the act or omission said to constitute a contravention of ss 15 or 16 (Kirk at [14] and [19]). As the prosecutor submitted: 'It is the failure on the part of an employer to take particular measures to prevent an identifiable risk eventuating that is the gravamen of an offence (Kirk at [14])'. The joint judgment in Kirk (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) criticised the particulars that had been specified in the charges in Kirk. At [26]-[27] the joint judgment referred to the common law requirements regarding an information (references omitted): [26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) , it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller , Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged".

[77]

36 It may be accepted that the following common law principles and statutory provisions apply to the pleading of criminal charges in the Court's occupational health and safety jurisdiction: a. it is a fundamental principle of the criminal law that an information or charge must disclose an offence known to the law: Ex parte Lovell; Re Buckley at 173; Johnson v Miller at 486; Broome v Chenoweth (1946) 73 CLR 583 at 601; McConnell Dowell (No 2) at [14]; Doja at [3]; b. the common law requires that there must be precision in criminal pleading: Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77; (1996) 139 ALR 27 at 51 per Kirby J, although the passing of Jervis' Act in England and reforms such as found in Summary Procedure Acts ameliorated the extreme strictness of pleading that previously applied; c. it is generally accepted that the legal elements to be pleaded in a charge consist of the matters that, as a matter of law, 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: McConnell Dowell (No 2) at [14]; Workcover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 131; d. the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; Re Buckley at 166; John L at 519; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 at [52]; Doja at [5]; e. putting aside the effect of statutory provisions curing or precluding reliance upon a defect, an information was required to inform the justices of the nature of the offence and the manner in which it was committed. In John L it was said at 519: 'The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence" ( Ex parte Lovell; Re Buckley at 166)'; f. there is no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence: De Romanis at 291 per Mahoney JA, cited with approval in John L at 520. In John L the High Court also cited (at 520) with apparent approval the following passage from De Romanis at 291-292: In Johnson v. Miller … at p 486 Dixon J. saw the decision in Smith v. Moody … at pp 61, 63 as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J. ... at p.501 referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty. Ltd.; Re Mason (1964) 81 WN (Pt.1) (NSW) 286, at pp 290, 291.

[91]

(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. 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 b. the capacity in which the prosecutor is taking the proceedings, and c. the name and address of the person against whom the proceedings are brought ( the defendant ), and d. the Act and the section under which the defendant is alleged to have committed an offence, and e. the nature of the offence that is alleged. This may be taken to mean the essential legal elements of the charge: see Johnson v Miller at 486 where Dixon J distinguishes between 'the nature of the offence' (he later refers to it as the 'legal nature of the offence: at 489) and the essential factual ingredients of the 'time, place and manner of the defendant's acts or omissions': see also Rockdale Beef at [109] per Basten JA, who makes the same distinction and see Kirk at [26], and f. the essential factual ingredients which must include the time, place and manner of the defendant's acts or omissions. 38 Section 11 of the Criminal Procedure Act allows for the description of any offence to be made in the words of an Act creating the offence. Section 12 provides that a summary offence is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. However, as we have noted, this does not dispense with the common law rule requiring the essential factual ingredients to be identified in the Application for Order: see for example, Stanton v Abernathy at 666. Thus, if an Application describes an offence under s 8(1) of the OHS Act 2000 in the words of that provision, it would seem to us that the Application has met the requirement of identifying the legal nature of the offence, that is the essential legal elements, subject to the proviso that, in adopting the words of the statute, it admits of no uncertainty or ambiguity: Rockdale Beef at [131]. What must also be identified in the Application are the essential factual ingredients that shall include the time, place and manner of the defendant's acts or omissions. 39 Where an information fails to specify the essential legal elements of the offence the information may not be saved by a Lord Jervis provision such as s 16 of the Criminal Procedure Act: see for example, Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; (1993) 53 IR 21 at 517 per Mahoney JA. This would be so if the information, by failing to specify an essential legal element, did not disclose an offence known to the law. However, the failure to properly plead the elements of an offence does not 'necessarily render the information invalid': Rockdale Beef at [123] per Basten JA. It is to be noted, however, that s 170 of the Industrial Relations Act arguably goes further than s 16 of the Criminal Procedure Act in allowing amendments in relation to the institution of proceedings where there has been a failure to comply with a rule (eg r 217B): such a failure is to be treated as an irregularity and does not nullify the proceedings.

[93]

42 The basis upon which Basten JA came to the view that the proceedings were not invalidated was explained at [122]-[123]: [122] At a time when the trial court lacked an express power to amend an information, there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between "essential legal elements" and "essential factual particulars". Cases where an objection in relation to the specification of an essential element of an offence has been upheld, in circumstances where a legislative regime exists, equivalent to that under the Criminal Procedure Act , were not identified in the course of the present proceedings. None of the cases discussed so far was such a case. However, an example, referred to by Sperling J in Taylor , was Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261. That case involved an offence under the National Security Regulations, by supplying a declared service at a price exceeding the maximum permitted under the regulation. The Full Court held that the charge of supplying bottled beer together with corkage for an undivided remuneration (at a rate above the maximum rate) was not an offence under the regulation. Jordan CJ stated (p 263): "It was sought to get over this by appeal to s 65 of the Justices Act , 1902, and a contention that there had been a mere variance. But it has been decided over and over again that a person cannot be convicted upon an information that does not charge an offence, and that s 65 does not meet such a case: Ex parte Lovell … The proper course, when this occurs is to amend the information so as to make it allege an offence known to the law and triable before the magistrate; and for the magistrate then to allow any adjournment reasonably necessary to give the defence an opportunity of meeting the charge."

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[126] If it were thought necessary, in the interests of procedural fairness, to make express reference to the relevant business in the charge, the prosecution was entitled to rely upon the material set out in the affidavit of Inspector Wolf, in support of the application. That affidavit asserted that the drag chain conveyor was located at the "Boning Room of Rockdale Beef": par 5. The boning room was described as being "at the abattoir": par 6. The abattoir was said to be "owned by" Rockdale Beef: par 10. Whether any further particulars were required may be doubted in these circumstances, but the case was one in which, had there been a difficulty, amendment of the pleading would have been available: see Stanton v Abernathy (1990) 19 NSWLR 656 at 667 and 671G-672F (Gleeson CJ, Priestley and Meagher JJA agreeing). Whatever flaws there may be in relation to the charge under s 10(2), they do not demonstrate invalidity of a kind which would require this Court to hold that the jurisdiction of the Industrial Court had not been adequately invoked. Accordingly, even on that approach there was no jurisdictional error in the decision of the Full Bench. 44 Basten JA also considered the effect of s 16 of the Criminal Procedure Act, finding that it is not necessary that all the words of the statute must be used, or that, where the specific provision is adequately identified, all the legal elements must be expressly identified. His Honour held that some of the elements may be implied by virtue of s 16(1)(b) of the Criminal Procedure Act at [130]-[133]: [130] That history demonstrates that 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).

[103]

49 Similar identification of the relevant requirements was undertaken in the Application for Order in IRC 1990/07 (the alleged s 8(2) breach). 50 What are also required to be included in the Applications are the essential factual ingredients of time, place and manner of the offence: see Rockdale Beef at [109] and [110] per Basten JA and the reference therein to John L. The time is identified as 'from about 27 October 2005 to and including 2 November 2005'. The place is identified as 'in the MCAA including its intersection with MC5B of the Lane Cove Tunnel at Sydney in the State of New South Wales ("the premises")'. 51 The manner in which the offence was alleged to have occurred is addressed in that part of the Application that describes the particulars. The particulars were extensive. The risk was identified: the risk of being struck by falling rock and/or tunnel collapse. The risk was clearly described. 52 Next, the Application proceeds to describe how it was the defendant failed to ensure safety. To take but one example, it was alleged the defendant failed to ensure the premises were safe and without risks to health in that it failed to ensure the down drive of the MCAA including its intersection with MC5B had an adequate system of ground support installed in a timely manner to support the tunnel. The Application then described the omissions by the defendant that caused the premises to be unsafe and to put persons at risk. One of those omissions was the defendant's failure to ensure the effectiveness of the rock bolting. That failure was then particularised, for example, 'the defendant failed to ensure that rock bolts were tensioned in accordance with the rock bolt specification; … the defendant failed to measure or check the borehole diameter'. Approached on that basis it is clear what measure the defendant should have taken to avoid the risk: tension the rock bolts in accordance with the rock bolt specification; and, measure or check the borehole diameter. 53 The acts or omissions described in the Applications may be contrasted with those impugned in Kirk. The first two particulars of the s 15(1) charge were that the defendant failed to: i. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle ('ATV');

[104]

ii. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle ('ATV'); 54 Notwithstanding that no complaint was ever made by the defendants about the adequacy of the particulars, at [28] of the joint judgment in Kirk it was stated, for example: [28] ... The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. ... 55 The particulars that are the subject of consideration in the present proceedings are significantly more extensive than those in Kirk in describing how the defendant failed to ensure safety. The Applications do not, in terms, contain express statements as to what measures should have been taken to prevent the risk identified. That is to say, taking particular (c)(iii) in Matter No IRC 1989 of 2007 as an example, the Applications do not contain statements to the effect: c) The defendant should have ensured that the systems of work were safe and without risks to health, in particular: … iii) The defendant should have ensured that the construction crew had and maintained a safe excavation and support sequence when excavating the down drive of the MCAA including its intersection with MC5B, namely: 1. the defendant should have followed the design intent as expressed in the design drawings and construction sequence when excavating the down drive of MCAA including its intersection with MC5B; 2. the defendant should have advised the designers, Parsons Brinkerhoff Australia Pty Ltd, of the fact that the design intent as expressed in the design drawings and construction sequence was not being followed in the construction of the down drive of the MCAA including its intersection with MC5B; 3. the defendant should have obtained a new design and construction sequence for the construction of the down drive of the MCAA including its intersection with MC5B in circumstances where the design and construction sequence that had been provided was not followed. 56 Instead (citing particular (c)(iii) again as it actually appears in the application in 1989/07), the Applications identify the act or omission of the defendant in failing to ensure safety: c) The defendant failed to ensure that the systems of work were safe and without risks to health, in particular: … iii) The defendant failed to ensure that the construction crew had and maintained a safe excavation and support sequence when excavating the down drive of the MCAA including its intersection with MC5B, namely: 1. the defendant failed to follow the design intent as expressed in the design drawings and construction sequence when excavating the down drive of MCAA including its intersection with MC5B; 2. the defendant failed to advise the designers, Parsons Brinkerhoff Australia Pty Ltd, of the fact that the design intent as expressed in the design drawings and construction sequence was not being followed in the construction of the down drive of the MCAA including its intersection with MC5B; 3. the defendant failed to obtain a new design and construction sequence for the construction of the down drive of the MCAA including its intersection with MC5B in circumstances where the design and construction sequence that had been provided was not followed. 57 The Applications identify the risks. It is then apparent from the Applications what failures are alleged, and implicit are the measures the defendant should have taken to avoid the risk to safety. If there were any deficiency in the manner in which the particulars were expressed it would not render the charges invalid. Rather, it would be open to the trial judge to order an amendment or for further particulars to be provided or for the defendant to seek further and better particulars: Rockdale Beef at [126] per Basten JA referring to Stanton v Abernathy at 667, 671-672. Whether Kirk determined the acts or omissions are essential legal elements

[105]

58 The defendant's complaint, however, is that the acts or omissions of the defendant constitute the offences under ss 8(1) and 8(2) and, therefore, constitute an essential legal element of the offences and must be pleaded as such in the 'Statement of Charge'. The defendant submitted that the prosecutor's failure to describe the acts or omissions in the 'Statement of Charge' meant that the offences were not offences known to the law. It was this submission that led the prosecutor to suggest that what the defendant was seeking to do was draw an imaginary line in the Applications, above which had to be the pleadings regarding the essential legal elements and below which could be the essential factual ingredients and any particulars. 59 It is unquestionably the case arising from Kirk that an Application for Order must plead the acts or omissions of the defendant that are alleged to give rise to the risk to health and safety: see Kirk at [14], [19]. However, we are unable to find any support in the Kirk judgment for the proposition that the acts or omissions are to be regarded as essential legal elements and, therefore, necessarily pleaded as such. The proposition contended for by the defendant also appears to be in conflict with the statement of the majority in John L (at 519) that the prosecutor was to provide the accused with the 'substance of the charge which he is called upon to meet'. The majority accepted that Mahoney JA had correctly pointed out in De Romanis that 'there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence'. This passage strongly suggests that, for a very long time, the law has not required the type of rigidity and technicality implicit in the defendant's proposition. 60 Kirk refers to 'statement of offence' or 'statement of an offence' or 'statement of the offence' in referring to the charges under ss 15(1) and 16(1): see [14], [15], [22], [25], [26], [28]. 'Statement of offence' does not appear to be a term of art, but rather one adopted in the joint judgment to describe the Applications for Order. At [14] the joint judgment stated: [14] A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. ... (emphasis added) 61 At [15] the joint judgment stated: [15] The necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of s 15 or s 16 is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions. ... (emphasis added) 62 In [22], after referring to the content of the Application for Order in relation to the s 15(1) offence and following reference to the particulars, it was said: [22] ... The statement of the offences concluded with the allegation that, as a result of the Kirk company's failures, its employees, in particular Mr Palmer, were "placed at risk of injury" and that Mr Palmer had suffered fatal injuries. (emphasis added) 63 At [25] of the joint judgment it is apparent that the High Court was countenancing a statement of offence that included particulars: [25] The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. ... (emphasis added) 64 At [26]: [26] ... The common law requirement is that an information, or an application containing a statement of offences , "must at the least condescend to identifying the essential factual ingredients of the actual offence". ... (emphasis added) 65 At [28]: [28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. ... (emphasis added) 66 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. 67 On the above analysis of the joint judgment we do not consider the acts or omissions are to be regarded as essential legal elements. That conclusion in no way diminishes the requirements for constituting a proper charge as laid down in the joint judgment. What prompted the criticisms in Kirk was that the charge did not describe the 'particular act, matter or thing alleged as the foundation of the charge': see [26]. In this respect, reference was made to John L. In that case, the informant had alleged an offence using the words of the relevant statutory provision (s 32(1) of the Consumer Protection Act 1969 (NSW)) and had particularised the alleged offence. However, whilst the offence involved making a statement that was false or misleading in a 'material particular' the informant had failed to identify the 'material particular' in which the published statement was alleged to be false or misleading. It was held that the information failed to identify: [A]n essential factual ingredient of the actual offence, namely, the "material particular" in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. ... (emphasis added) 68 In finding that the acts or omissions had not been adequately described in the Applications for Order, it is reasonably apparent the High Court in Kirk was adopting the approach in John L. 69 It is also important to understand that Kirk did not find the charges were invalid by reasons of a failure to identify the essential legal elements of the charges or all of the essential factual ingredients. What had been provided in the Application in that case was considered by the High Court to be insufficient for the defendant to be able to rely on a defence under s 53 of the 1983 Act. Indeed, in the joint judgment at [30] it was said 'the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges.' That is a further indication that the High Court viewed the flaw in the charges as being in the nature of inadequate particulars, albeit particulars that were essential. Whether Applications for Order are defective

[109]

72 If it be accepted, as it must, that the acts or omissions of the defendant that created the risk to health and safety were essential elements of the charge, whether essential legal elements or essential factual ingredients, those acts or omissions are identified in that part of the Applications dealing with particulars. The fact that the acts or omissions were not pleaded in a particular place or in a particular form in the Applications for Order does not appear to us to amount to a fundamental defect such that the charges should be regarded as a nullity. Even if it could be contended that the acts or omissions were essential legal elements and were required to be identified in the Applications in juxtaposition with other legal elements, at best, in our opinion, it may be said the Applications contained a defect in form, which is unobjectionable (s 16(2) of the Criminal Procedure Act) or would be regarded as an irregularity (s 170 of the Industrial Relations Act). 73 In coming to this view we have had regard to a number of the authorities relied upon in the proceedings. In John L, the information was found to be incurably defective by reason of its failure to identify the 'material particular' in which an alleged statement was said to be false or misleading. As the proceedings had been commenced by way of information and because there was no statutory provision equivalent to s 6 of the Summary Jurisdiction Act available to cure the defect, that issue did not arise for consideration. The court acknowledged, however, that an amendment was possible if a relevant statutory provision so allowed. In the present case both s 16 of the Criminal Procedure Act and s 170 of the Industrial Relations Act are such statutory provisions. Thus, the majority judgment does not assist in deciding whether an information was void if it did not contain full particulars. Brennan J took a different view and found it necessary to consider the operation of s 6 in relation to the defective information, holding it was a conclusive answer to the appellant's argument. 74 In Stanton v Abernathy the information was defective for duplicity and lack of particulars but it was held that it was not incumbent upon a magistrate in committal proceedings to dismiss it. The magistrate had an implied power to direct the furnishing of particulars and require the prosecution to elect to charge the appellant with a single false statement to the exclusion of any others or amend the information and lay one charge in respect of each alleged false statement. 75 In Doja an indictment was found to be defective because in respect of two counts it failed to expressly state the mental element of the offence under s 178BB of the Crimes Act 1900. The defect was found not to be such as to render the indictment invalid. It was held the averment could be 'necessarily implied' for purposes of s 16(1)(b) of the Criminal Procedure Act. See also R v McVitie [1960] 2 QB 483. 76 In Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83, summary proceedings had been instituted in a Local Court by the issue of a court attendance notice. The notice identified the section of the Crimes Act under which the charge was laid, described the charge as 'assault occasioning actual bodily harm' and stated that the offence had occurred between the hours of 8am and 5.30pm on a particular day 'at Potts Point'. It was further alleged that the defendant 'did assault [the identified victim] thereby occasioning actual bodily harm to her'. The defendant in those proceedings challenged the validity of his conviction on the basis that the notice was defective and invalid because it failed to comply with ss 172 and 175 of the Criminal Procedure Act, by failing to 'briefly state the particulars of the alleged offence' and in failing to follow 'the prescribed form in this regard'. 77 The Court dismissed the application. At [83], after reviewing the authorities, Campbell JA, with whom Mason P and Tobias JA agreed, stated that a failure to supply particulars in an information did not invalidate any proceedings commenced by that information. Campbell JA noted that the deficiencies in a court attendance notice could be 'so gross that as a matter of construction s 16(2)(a) would be read as not applying to them' (at [48]) but that was not the case in respect of the notice before the Court. 78 It was held in Janceski that an indictment was invalid and the trial and conviction were nullities. The defect in the indictment was the absence of an authority to sign (see also R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263). In Lodhi v R [2006] NSWCCA 121, an indictment alleging certain terrorist offences under the Criminal Code Act 1995 (Cth) was quashed because the statement of each of the charges failed to allege all the ingredients of the offence. The Court considered s 11 of the Criminal Procedure Act (but not s 16). However, it was held that more was required and that the statement of the offence had to include 'the essential factual ingredients' of the offence. The matter was remitted to the trial judge. The Crown was required to replead the charges in the indictment. For completeness, it should be noted that in Johnson v Miller the prosecutor refused to amend the charge and so no issue arose regarding the power to amend. 79 It is not easy to reconcile the various authorities, but it is reasonable to suggest that s 16(2) of the Criminal Procedure Act (and/or s 170 of the Industrial Relations Act) may apply to save a charge even if there was a failure to state all the essential ingredients of the offence, provided that there is no uncertainty or ambiguity in the charge, or where certain ingredients can be implied from what is stated in the charge. However, there may be situations where the charge is 'so gross', for example where it is not apparent what offence is being alleged, where s 16(2) cannot be relied upon. As earlier observed, arguably s 170 goes further than s 16 but it is not necessary for the purposes of these proceedings to explore the full extent of the reach of that provision. 80 In the present proceedings, given all the essential elements of the offence are identified in the Applications for Order, the proposition that the Applications are a nullity cannot be sustained.

[111]

The distinction between the offence charged and the conduct which may or may not amount to such an offence is the key to this problem. The charge must be sufficiently and unequivocably (sic) identified in the information, whereas particulars and further and better particulars may be given from time to time to better identify and distinguish the conduct from other transactions and occurrences (see per Dixon J in Johnson v Miller (1937) 59 CLR 467 at 490). 82 Videon concerned whether the Minister had consented to the prosecution of particular offences, in view of the subsequent amendment of the particulars of the conduct charged in the information and summons. The defendants challenged the amended charge as constituting new offences not authorised by the Minister whose authority had been given in wider terms. For the purposes of dealing with that issue, Fisher J focused on the charge authorised by the Minister, noting that there was no requirement under the Trade Practices Act 1974 (Cth) to identify the conduct and there was no requirement under the Act for particulars of conduct to be supplied. It was in those circumstances that his Honour drew a distinction between the charge and the particulars and that distinction was required by the relevant rules. The Minister's authority to prosecute was not affected by the amendments proposed to the particulars and were granted by his Honour. In was in this context that his Honour made the statement referred to above at 444, relied upon in quite different circumstances by the defendant in this case. The defendant's submission overlooks the fact that his Honour relied upon the provisions of the rule making a clear distinction and requiring the charge to be separately identified from the particulars, whereas no such requirement is to be found in r 217B. Videon is, therefore, not authority for a general proposition that the essential elements of a charge are to be identified separately from the particulars in an information, just that the charge must be sufficiently and unequivocally identified. We note that Fisher J did not regard the defendant's conduct (its acts or omissions that constituted the false or misleading statement concerning the land) in that case as constituting an element of the offence. Section 31 of the OHS Act 2000

[117]

(3) A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence. 85 Sections 8(1) and 8(2) are to be found in Division 1. Section 12 provides that a person who contravenes, whether by act or omission, a provision of Division 1 is guilty of an offence against that provision. A contravention, therefore, of a general duty under ss 8(1) or 8(2), is constituted by an act or omission. More than one contravention, that is multiple acts or omissions, that arise out of the same factual circumstances may be charged as a single offence. 86 We do not understand s 31 to require that the factual circumstances of each act or omission must be separately pleaded. The section requires that the multiple acts or omissions constituting more than one contravention of a provision in Division 1, charged as a single offence, arise out of the same factual circumstances. That is what was pleaded in this case. 87 The defendant submitted that the particulars, in alleging multiple omissions in relation to multiple duties, disclosed that what, in fact, the prosecutor alleged was not an act or omission, but rather a failure to achieve a 'state of affairs'. The reference to 'state of affairs' seems to have derived from the decision of Fullagar J in Chugg v Pacific Dunlop Ltd [1988] VR 411 at 415. In that case his Honour was dealing with the Occupational Health and Safety Act 1985 (Vic). Section 21(1) provided that '[a]n employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.' Section 21(2) provided that: 'Without in any way limiting the generality of subs(1), an employer contravenes that sub-section if the employer fails' to do a number of things enumerated in paras. (a) to (e) of subs(2). Section 47 provided that any person who contravened any provision of the Act shall be guilty of an offence. The information alleged that the defendant failed to provide and maintain a safe working environment: The information of Peter Richard Chugg of Melbourne in the State of Victoria, an Inspector appointed pursuant to the Occupational Health and Safety Act 1985, who says that the said defendant on the second day of November 1985 at 68 Cross Street Footscray was pursuant to s47 of the Occupational Health and Safety Act guilty of an offence against that Act in that being an employer it did fail to provide and maintain as far as was practicable for employees a working environment that was safe and without risks to health when it did fail to provide and maintain plant and systems of work that were so far as was practicable safe and without risks to health, and when it did fail to provide such information, instruction and supervision to employees as was necessary to enable the employees to perform their work in a manner that was safe and without risks to health, in contravention of the provisions of s21 of the Occupational Health and Safety Act 1985.

[118]

Particulars of the charge were then provided in the information. 88 It was contended by the informant that s 21 of the Act, when read with s 47, disclosed only one criminal offence, namely, that of failing to 'provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health'. It was submitted that the effect of s 21(2) was that an employer, who did any of those things - that is to say, commits any of the failures - set out in the five lettered paragraphs, thereby contravened s 21(1). The only criminal offence, therefore, committed by such an employer, was an offence against s 21(1). 89 Fullagar J did not accept that submission. At 415 his Honour held: In the present case I consider that the major issue is whether subs(1) and subs(2) of s21, in combination with s47(1), create on the one hand one continuing offence of allowing to subsist a particular proscribed environment, or create on the other hand a large number of offences each consisting of some identifiable act or omission which, in all the circumstances, constitutes a failure to comply with a general duty of care laid down by s21(1). I have come to the conclusion that the latter alternative is correct, and that the effect of s21(2) is to ensure that, if the acts or omissions charged and proven establish one or more of the several general failures set out in the lettered paragraphs of subs(2), then that, without more, automatically establishes a failure to comply with the general duty laid down by subs(1) and thereby operates to constitute the identifiable act or omission as a criminal offence by force of s47. But it is each particular relevant act or omission itself that quantifies and constitutes the offence, not the failure to maintain either the continuing state of affairs indicated by s21(1) or a continuing state of affairs indicated by a paragraph of subs(2). 90 Fullagar J held that the information was bad for duplicity and was not saved by a Lord Jervis provision, s 157 of the Magistrates (Summary Proceedings) Act 1975 (Vic). Chugg was approved by the Victorian Court of Appeal in R v Australian Char Pty Ltd [1999] 3 VR 834. 91 We note in passing that in Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos [2008] SASC 197; (2008) 101 SASR 339; (2008) 174 IR 80, Doyle CJ (with whom White J agreed) disagreed with the approach of Fullagar J. Diemould related to an alleged breach of s 19(1) of the Occupational Health Safety and Welfare Act 1986 (SA), which obligated an employer to ensure that its employee was, while at work, safe from injury and risks to health. Section 19 provided: 19 - Duties of employers

[124]

[32] But a contravention of s 19(1) will be the result of an act or omission by an employer, that gives rise to a contravention of the section at an identified place (where an employee is at work) and in relation to an employee or employees who must be shown to be affected by the contravention, because of the failure to ensure so far as is reasonably practicable that the employee is or employees are safe from injury and risks to health. The employee or employees might, depending on the circumstances, be an identified person or persons. The employee or employees might be performing a certain kind of work or using a particular implement, and so might be a category or group described in that way. The employee or employees in question might be an employee or employees at a particular place, and designated in that way. Which of these is appropriate will depend on how the charge is framed. 93 In Santos Limited v Markos; Diemould Tooling Services Pty Ltd v Oaten [2008] HCATrans 372 (13 November 2008) it was said that '[w]e are not persuaded that the decision of the Full Court of the Supreme Court of South Australia in these matters is attended by sufficient doubt to warrant the grant of leave. Special leave will be refused.' 94 Regardless of the different approaches taken in Chugg and Diemould, the defect found in Chugg was duplicity. That is, the information was held to contain more than one offence and that is the context in which the decision in Chugg must be considered. In the opinion of Fullagar J, each of the alleged failures under s 21(2) of the Occupational Health and Safety Act 1985 (Vic) should have been charged separately and not in the one information. His Honour held, contrary to the contentions of the informant, that the failure to maintain a safe working environment (s 21(1)) was not the offence. The offence was an act or omission establishing one or more of the general failures set out in s 21(2), which if proven 'automatically establishes a failure to comply with the duty laid down by sub-s (1) and thereby operates to constitute the identifiable act or omission as a criminal offence by force of s 47.' 95 We note that s 6 of the Magistrates (Summary Proceedings) Act 1975 (Vic) provided that: (1) Charges for indictable offences … may be joined in the same information if the charges are founded on the same facts or form or are part of a series of offences of the same or similar character but any charge so joined may be dealt with separately.

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