38 The charges laid in Matter Numbers IRC 5127 and 5128 of 2003 relate to a prosecution pursuant to s 26 of the Act and allege that the defendant contravened s 26 in that Formbrace Contractors Pty Ltd, an employer, breached s 8(2) (in the case of Matter No IRC 2003/5127), and s 8(1) (in the case of Matter No IRC 2003/5128), of the Act. Particulars of the relevant Formbrace breach are set out in each application for order.
39 Counsel for the defendant submitted that as s 26 cannot be said to create an offence, the charges are not valid as they fail to specify an offence known under the Act given that they have been brought as prosecutions under s 26 only. They further submitted that this defect cannot be corrected by amendment as the charges are void for failing to state an offence known at law; thus the Court is not invested with jurisdiction to apply s 170 of the Industrial Relations Act 1996 to amend the charges. Further, the charges are time barred and thus fresh charges cannot be commenced. Counsel for the defendant further submitted that as no offence is created under s 26, it is irrelevant to consider whether all of the essential elements of the provision are set out in the charge.
40 During the hearing, counsel for the prosecution submitted that this matter raises two essential questions: what is necessary for the proper statement of the offence? and, secondly, does the description of an offence by reference to an inaccurate or incomplete section mean the charge is a nullity? Counsel for the prosecution submitted that, irrespective of how the charges are described, the charges as laid each set out the essential elements to be proved against the defendant, albeit that they describe the offence as a breach of s 26 only. They further submitted that if the charges had described the breach as one of s 8 by virtue of s 26, there could have been no complaint. Accordingly, counsel submitted that it cannot be said that the charges are defective or so defective as to be a nullity. In the alternative, counsel for the prosecution submitted that, if the charges are defective, then any defect is only technical and could be readily cured with no prejudice to the defendant.
41 At the outset, we express our agreement with the prosecutor's submission that there could be no complaint if the charges had described the breach as one of s 8 by virtue of s 26. As the charge is against an individual who is not alleged to be the employer, it cannot be said that the charge should only refer to s8. It would also be correct, and indeed preferable, to describe the charge as a prosecution under s 26 for which the defendant is taken to have breached s 8. We also adopt the prosecution's contention as to the two essential questions to be answered in considering whether the charges are valid.
42 The requirements of a valid charge were considered in Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 53, where Jordan CJ observed, in the context of statutory reforms to the law relating to the exercise of summary jurisdiction:
In the light of this legislation the law would appear now to be as follows. A magistrate has no jurisdiction to convict except for a statutory offence; and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. Hence in order to support a conviction for an offence, it is necessary either that the information or summons upon which it is based should accurately state the acts necessary to constitute all the elements of that offence, or else, if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of the information or summons.
43 In R v Bartalesi; R v Fragassi (1997) 41 NSWLR 641 Hodgson A-JA with whom Handley JA and Studdert A-JA agreed, approved of and applied what Studdert A-JA had said in Wehbee v Stamatios Voulgarakis & Anor (unreported, Studdert J, 22 October 1991):
Of course at common law any information laid was required to inform the justice before whom it was laid of the nature of the offence and the manner in which it had been committed and was required to alert a person accused of an offence to particulars thereof necessary to permit him to prepare his defence. See Ex parte Lovell; re Buckley (138) 38 SR (NSW) 153 and John L Pty Limited v The Attorney General 163 CLR 508 esp at 519.
Nor has the including of s145A of the Justice Act eliminated the common law requirement that an information must identify the essential factual ingredients of the actual offence alleged to have been committed: see John L Pty Limited v The Attorney General (supra) and Stanton v Abernathy 48 ACR 15 esp per Gleeson CJ at 25.
However in the present case, as I observed earlier, the defendant was alerted to the essential factual ingredients of the charge for which he was being brought before the Local Court.
It does not seem to me, against this background, that it was an essential prerequisite to the magistrate proceeding to consider the substance of the charge that the information upon which the prosecution initially proceeded should have been specifically expressed a charging a breach of s99 of the Police Services Act 1990 . Nor do I consider that the fact that the charge was originally presented as constituting a breach of the repealed Act precluded the magistrate from dealing with the matter on the facts presented before him.
44 The test for determining whether charges laid are defective was also considered by Mahoney JA in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 (at 515) where he said:
The form which an information should take has been the subject of consideration in many cases. In my respectful opinion, the decisions, and the terms which have been used in them, are not completely consistent. It is important for the decision of the present case to make certain distinctions and I shall therefore indicate the sense in which I have used the terms "defective" and "void".
There is, I think, no exhaustive and definitive statement of what is necessary and sufficient to be contained in an information: see generally, John L Pty Limited v The Attorney-General (NSW) (1987) 163 CLR 508; De Romanis v Sibraa [1977] 2 NSWLR 264. Ordinarily, the information must state, and state correctly, the essential elements in law of the offence charged, the time of its commission, the place and manner of its occurrence and such other details as are necessary to allow the defendant to know that which he must meet. And the information must state only one offence: it will otherwise be objectionable as for duplicity. If the information is not, in this regard, in proper form, it is defective.
45 Mahoney JA also observed at 517 in the context of considering the scope of s 65 of the Justices Act 1902 to put aside or ignore defects:
But on a literal approach, s 65 would offer no assistance if the defect lay in, for example, a mis-statement of the offence such that it could be corrected only by the deletion of the existing statement of it and the substitution of a corrected statement. In Ex parte Lovell; Re Buckley (at 168), Jordan CJ saw the English decisions of the equivalent legislation as establishing that it did not apply:
if it appears that the information does not allege all the ingredients of the statutory offence
or that the evidence did not prove it.
46 The applications for order in Matter Numbers IRC 5127 and 5128 of 2003 allege the essential elements of the offence - the defendant is a director of Formbrace, Formbrace had breached s 8(2) (in the case of Matter No IRC 2003/5127) and Formbrace had breached s 8(1) (in the case of Matter No IRC 2003/5128). Particulars of the Formbrace breach are listed in the application for order. We are satisfied that these are the essential elements to be proved against the defendant by the prosecution. Counsel for the defendant did not contend otherwise.
47 The key remaining issue is whether pleading the charges as a breach of s 26 (in that Formbrace breached s 8(2) of the Act), which as we have concluded does not of itself create an offence, rather than as a breach of s 8 by virtue of s 26, renders the charges defective notwithstanding that the essential elements of the offence are properly set out. We are not satisfied that the mis-description of the section under which the offence arises invalidates the charges. We agree with counsel for the prosecution that Bartalesi supports the conclusion that this does not, of itself, render the charges defective as long as the essential elements of the offence are properly set out. We also observe that the authority of Wehbee v Stamatios Voulgarakis and Anor referred to by Hodgson A-JA in Bartalesi involves a similar factual situation (albeit that Wehbee related to a reference to a repealed statute) and, in that case, it was held not to be fatal to the validity of the charges as the essential factual ingredients of the charge had been properly laid out.
48 We are also satisfied that the charges satisfy the test enunciated by Mahoney JA in Boral Gas as the essential elements of the offence are set out in the charge. During the hearing, the observations of Mahoney JA in Boral Gas were considered regarding his reference to a mis-statement of an offence (at 517). We consider that Mahoney JA was referring to a mis-statement of the essential elements of the charge rather than a mis-statement of the number of the relevant statutory provision and that this is consistent with his Honour's comments at 515, to which we have referred earlier.
49 Accordingly, we consider that as the applications for order adequately describe the essential elements of the offence, the charges are valid notwithstanding that they purported to be brought under s 26 of the Act.
50 Finally, although not strictly relevant given the foregoing discussion of the charges, we reject the defendant's reliance upon WorkCover Authority of New South Wales (Inspector Lacey) v Graphic Security Pty Limited [1998] NSWIRComm 45 in support of its written submission that "it is trite to state that a reference to the wrong statutory provision will be sufficient (in most cases) to defeat a charge". There is no such authority or proposition to be found in that case, in which Cahill J dismissed summonses alleging breaches of s 15(1) of the 1983 Act on the basis that the prosecutions were instituted against the wrong defendant and it was conceded by the prosecution that, following the misdescription of the defendant, it was unable to prove the essential elements in the charges. This is distinguishable in the present instance as there is no dispute as to whether the essential elements of the offence have been included in the charge.
51 Both parties have made submissions regarding whether any defects in the process might be corrected. Given our conclusions on the form of the applications for order, it is unnecessary for us to consider these submissions, except to observe that the charges could be readily corrected and, for the sake of clarity, application should be made to the trial judge that they are corrected to include a reference to the effect of s 26 being that the defendant is taken to have contravened the relevant subsection of s 8.
52 Therefore, turning to the questions referred to us. We have already expressed our views on the formulation of the questions and, now conclude that, in answer to question 3, the charges laid in Matter Numbers IRC 5127 and 5128 of 2003 are valid charges.
53 We therefore remit the matter to the trial judge and while we have already addressed the questions referred to us, the questions referred are answered in terms as follows: