Inspector Mansell v Robert Josef

Prosecutor: Mr M J Joseph SC with Mr P M Skinner Solicitors: Moray and Agnew LEGAL REPRESENTATIVES: Defendant: Mr J R Young Solicitors: James Legal

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: CURTIS AJ Date: 30 October 2003

Matter No IRC 5486 of 1999 WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MANSELL) v ROBERT JOSEF Prosecutions under section 50(1) of the Occupational Health and Safety Act 1983

EX TEMPORE RULING ON APPLICATION FOR STAY [2003] NSWIRComm 372

1 Robert Josef moves that proceedings number 5486 of 1999 be stayed upon the basis that he has already been convicted of the offences there charged in proceedings number 5488 of 1999.

2 Where a person has been convicted and punished for an offence under the Occupational Health & Safety Act 1983, further prosecution and punishment in respect of substantially the same facts or the same course of conduct may be oppressive. Relief from such oppression may be ordered at successive stages of the legal process by the following mechanisms (see generally Kirby J in Pearce v The Queen (1998) 194 CLR 610, 637 to 650).

3 It is the duty of the inspector appointed pursuant to Division 4 of Part 3 of the Occupational Health & Safety Act 1983 to frame criminal charges so as to prevent oppression and unfairness. Fisher CJ pointed out in Boral Gas (NSW) Pty Limited v Magill ((1995) 58 IR 363 at 367 to 368) that: Most accidents have multiple causation. ... The device of bringing the central allegations together under one count under s15 is inherent in the structure of the Act itself and a long tradition of industrial litigation ... It has long been the practice to avoid a multiplicity of actions and to note the double jeopardy provision [section 34] ... and what it seems to infer.

4 Although His Honour's was a minority view on the law, (Hill and Hungerford JJ following Byrne v Baker ([1964] VR 443), were of the opinion that s15 did not create the one offence of failing to maintain a safe environment, but rather separate offences each constituted by an identifiable act or omission in breach of the general duty), Fisher CJ, a pragmatic judge of great experience, may be taken to be referring to the established practice of prosecutors at the time.

5 Of particular relevance to the inspector's duty in framing charges are the provisions of s49A of the Act in the following terms: (1) More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more of those sections to be charged as a single offence. (3) A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence.

6 The enactment of s49A in 1997 appears to be the legislative response to the majority judgment in Boral v Magill for the purpose of avoiding uncertainty by claims of pleading duplicity. In his second reading speech to the bill, the Honourable J Shaw, Attorney-General and Minister for Industrial Relations said: To assist in prosecutions of offences under the Act, the bill gives prosecutors the option of charging several breaches of one of the general duties as a single offence if they arose out of the same factual circumstances. For example, a serious incident at work, at a workplace, may involve a breach of the employer's general statutory obligation to provide a safe and healthy workplace in several respects; such as failure to provide training, failure to set up safe systems of work, failure to ensure equipment is safe, failure to provide personal protective equipment to workers, and failure to provide adequate supervision. Under the existing case precedents, it is unclear if each of these related contraventions would have to be charged as a separate breach of section 15 of the Act, which would complicate court proceedings and lead to much repetition of the factual circumstances of the incident. The new procedure will allow for simplified proceedings, where all the breaches which arise from the same factual circumstances can be charged as a single offence ... the test for similarity in breaches - that they must arise from the same factual circumstances - is not intended to be overly technical or restrictive.

7 The language of the Minister, that the test for the similarity of breaches which may be included in the one summons prosecution is not intended to be "overly technical or restrictive", mirrors that of McHugh, Hayne and Callinan JJ in Pearce v The Queen ((1998) 194 CLR 610 at 623) that "Excessive subtleties and refinements must be avoided" in the application of the criminal law.

8 Where several offences are alleged to arise out of a course of conduct, and it is only by the use of "overly technical and restrictive language" that they may not be seen as arising out of the same factual circumstances, then, as a general rule, they ought to be charged as a single offence. Such an exercise of executive discretion is necessary in order that the criminal process conform with the community's sense of what is right and just.

9 The legislature has fixed a maximum penalty for each conviction of s15 or s16 of the Act. It is only through accidents of legal history, statutory language, and the judicial policy of imposing clarity in pleading, that the nature of the offence under s15 has been interpreted as referable to identifiable acts and omissions, rather than a general characterisation of conduct allowing an unsafe circumstance to exist (see Byrne v Baker; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Boral v Magill).

10 In this regard s15 may be contrasted with s16 in which "several risks and several causes of risks each to different persons or groups of persons will establish only one contravention of the section" per Hill J in Boral v Magill.

11 The relevant judicial policy has been driven by concern that defendants facing charges of contravening s15 are afforded procedural fairness by knowing precisely what is alleged against them (See Byrne v Baker at 452). The legal rules developed in consequence ought not be perverted by prosecutors, through technical subdivision of the offending conduct into as many separate offences as he or she may abstract from a general failure, unfairly multiplying the number of available convictions.

12 In Connelly v DPP [1964] 2 All ER 401 at 441, Lord Devlin said: "Yet even the simplest set of facts almost invariably gives rise to more than one offence. In my opinion, if the Crown were to be allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, there would be a grave danger of abuse and of injustice to defendants." Albeit in a reference to a plea in bar, Gleeson CJ in Environmental Protection Agency v Australian Iron and Steel Pty Ltd ((1992) 28 NSWLR 502) said at 506 that: "The number of potential offences cannot be multiplied by the drafting technique which the Commission found convenient." The same judge, in Stanton v Abernathy (1990) 19 NSWLR 656 at 662, having observed that each false statement involves a separate crime of perjury added that: "Considerations of commonsense and fairness enter into a judgment on the question of how many statements ought to be taken to have resulted from a number of utterances."

13 A plea in bar may be raised where "the elements of the offences charged are identical or in which all the elements of one offence are wholly included in the other" (Pearce v The Queen). "The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first" (Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131 per Griffith CJ). Thus, an acquittal on a charge of common assault precluded prosecution upon the same facts for assault occasioning actual bodily harm (R v Elrington (1861) 1 B&S 688). Similarly, a conviction of a charge of possessing heroin for the purpose of supply may create a bar to a further charge of supplying heroin (R v Dodd (1991) 56 A Crim R 451).

14 The rule operates to prevent repeated conviction for the same offence. It is not the law that a person cannot be prosecuted for a number of offences arising out of the same act, (R v Dodd; R v Thomas [1950] 1 KB 26; State Pollution Control Commission v Tallow Products Pty Limited (1992) 29 NSWLR 517; Australian Oil Refineries v Cooper (1987) 11 NSWLR 277) because "There is no reason why an act may not be prohibited by two separate statutes and may involve an offence under each statute." (Parramatta City Council v Stauffer Chemical Company (Australia) Pty Limited [1971] 2 NSWLR 500, per Hope J at 510)

15 Whether the one course of conduct is a contravention of two statutory provisions so as to render the offender liable to one or two convictions will depend upon legislative history and statutory construction (Environmental Protection Agency v Australian Iron and Steel Pty Ltd). However, "Where a person who has been convicted under one of the two statutes in question here is also charged with an offence under the other statute, the court hearing the second charge would no doubt take the fact of that conviction into account when deciding whether a second conviction should be recorded, and, if it is recorded the extent to which any further punishment should be imposed." (Per Hunt J in Australian Oil Refining Pty Limited v Cooper (1987) 11 NSWLR 277 at 283. See also Morrison v New England Antimony Mines NL [2003] NSWIRComm 194). Stay of Proceedings

16 A court, in the exercise of its inherent jurisdiction to prevent abuse of its process, may, following conviction of an offence, stay further proceedings grounded on the same, or substantially the same, conduct, even where a plea in bar is not available (R v O'Loughlin (1971) 1 SASR 219, Connelly v DPP [1964] 2 All ER 401, Pearce v The Queen).

17 The relief is available where multiple prosecutions for what are "technically different offences, but in substance the same matter, and referable substantially to the same facts and circumstances" are perceived as unjust (per Kirby J in Pearce v The Queen at 468).

18 There are two aspects to such an abuse of process as will call for a stay: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute (per Mason CJ, Rogers v The Queen (1994) 181 CLR 251 at 256).

19 In R v O'Loughlin the prosecution, having secured a conviction of driving under the influence contrary to s47 of the Roads Traffic Act 1961-1969 (SA), pursuant to which the offender was fined, sought to proceed on a charge arising out of the same event, that the offender drove his vehicle while there was present in his blood the prescribed content of alcohol, contrary to s47(b) of the same Act. The South Australian Court of Appeal held that there was sufficient identity between the acts or omissions constituting the offences as to make it improper to proceed with the second.

20 In Collins v Murray [1989] 1 Qd R 614, the defendant violently resisted the attempts of two police officers acting in concert to arrest him. He was charged with two counts of resisting a police officer in the execution of his duty; one for each officer. Because the second charge was constituted by the "gist or gravamen" of the first charge - only the identity of the officers being different - the court stayed the second of the two charges.

21 The New South Wales Court of Appeal in R v Mai ((1992) 26 NSWLR 371), held that the charging of an accused with possession and attempted possession on virtually the same facts - the difference being that the accused, being in actual possession of a non-commercial quantity of heroin, had attempted to possess a commercial quantity, a more serious offence - was not justified. Upon failure of the Crown to amend so as to make the second charge an alternative to the first charge, the trial judge should have stayed the indictment so far as the second count was concerned. Hunt CJ at CL said, at 386: "It is difficult to imagine how it could ever be proper for the Crown to charge an accused with either possession or attempted possession separately for each successive day that the single offence continued."

22 It is, of course, the case that in some cases only by bringing multiple charges may a prosecutor address the totality of the criminal enterprise (Pearce v The Queen). Sentencing, following a conviction on one single charge, might otherwise require that a material part of the accused's conduct be excluded from consideration (R v De Simoni (1981) 147 CLR 383). Nevertheless, as McHugh, Hayne and Callinan JJ held in Pearce: "Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily" (at 621).

23 To the extent to which two offences contain common elements, an offender may not be punished twice for the commission of the elements that are common (Pearce v The Queen). Where a duplicitous prosecution is brought pursuant to s49A in respect of a course of criminal conduct in terms "not overly technical and restrictive", a conviction should, unlike the circumstance in Pearce v The Queen or R v De Simoni, permit sentencing upon consideration of the totality of the defendant's conduct. In such a case, further prosecution and punishment would offend against the rule in Pearce v The Queen.

24 The principle of totality requires that a court clearly identify the material aspect of the accused's conduct following a second conviction upon substantially the same facts as the first, which aspect could not have been a material consideration in fixing the sentence for the first charge. This was the approach of the Full Bench in Crown in Right of State of New South Wales (Department of Education & Training) v Keenan (2001) 105 IR 181.

25 If it is not possible to isolate any act or omission of the defendant as relevant to the second offence, which act or omission could not legitimately have been considered in sentencing for the first offence, the principle of totality demands that no further punishment be imposed. It follows that no conviction should be recorded and that the second prosecution be stayed, because, as Kirby J pointed out in Pearce v The Queen, a conviction in itself is a punishment without more.

26 This is especially the case in a jurisdiction where large corporations employing thousands of workers have cause to jealously guard their occupational health and safety record. Casual acts of negligence and systemic failures will continue to blight enterprises conducted through human agencies. The number of discrete offences, as a measure of the failure of a corporation to vigorously pursue its responsibility for the health and safety of persons in and around its works, ought not be artificially inflated at the whim of the prosecution.

27 From the cases, the following general propositions may be drawn in relation to prosecutions brought in respect of contraventions of the Occupational Health & Safety Act 1983: 1. It is the duty of the prosecutor to bring charges sufficient to allow the court in sentencing an offender to consider the total criminality of his conduct. 2. Where, by virtue of s49A, the totality of an offender's criminal conduct may be addressed in sentencing upon the one charge where multiple offences arise out of the same factual circumstances, the prosecutor should not ordinarily bring more than one charge. 3. Where an offender is oppressed by the prosecution of more than one charge in respect of offences arising out of the same factual circumstance, the court may put the prosecutor to his election as to which charge he presses or, following conviction and sentence upon the first charge, stay the remaining charges. 4. The test of oppression is whether, pursuant to the totality principle, there is no fact or circumstance which may be identified in the second charge, which fact or circumstance was not materially relevant to the conviction and sentencing of the defendant on the first charge. 5. It is for the court, not the executive, to determine the number of separate convictions that may be reasonably entered in respect of any one course of criminal conduct, so that the process of law is not abused by oppression of the defendant and embarrassment to the administration of justice. 6. Notwithstanding the generality of these propositions, s15 and s16 of the Act create separate offences in relation to the one course of conduct and s49A manifests a parliamentary intention that separate convictions be recorded.

28 There is a certain tension between the operation of s49A of the Occupational Health & Safety Act 1983 and the observance of two principles governing fairness in criminal trials. The first is the rule that no piece of evidence may be admitted against an accused unless he has the right to resist its reception upon the ground of irrelevance (per Evatt J, Johnson v Miller (1937) 59 CLR 467 at 497-98). The second is that if a defendant is convicted upon a plea of guilty, or following a trial, he should know and "the record must show of what offence he has been...convicted in order that [he] avail himself, if the need should arise, of a plea of autrefois convict...": S v The Queen (1989) 168 CLR 266 at 284 per Gaudron and McHugh JJ.

29 Where a trial is conducted upon a duplicitous charge containing allegations of several offences brought pursuant to s49A, the defendant may object to no evidence of any act or omission provided only that the evidence is relevant to any one of the offences which may be teased out from the particulars. The defendant in such a trial is in jeopardy of conviction upon all or any one of the offences disclosed by the particulars, whether the prosecution ultimately discharges the onus or not. It follows he is entitled to demand a conviction or an acquittal upon every offence in respect of which he was in jeopardy of conviction.

30 For these reasons, the prosecutor may not, at the conclusion of the trial, disclaim reliance upon evidence of facts or omissions duplicitously pleaded against the defendant which evidence may have been sufficient to ground a conviction of a second or further offence additional to the one offence, upon which the prosecutor ultimately seeks a conviction to the exclusion of all others.

31 In the trial of charge number 5488 of 1999, I have found all but one act or omission particularised against Robert Josef to constitute a contravention of s15(1) of the Occupational Health & Safety Act 1983 proven beyond reasonable doubt. Of that one offence, being the failure to prevent work being carried out on 4 December 1995 when safety officers were not present at KSU, he stands acquitted. Upon each of the other offences he stands convicted.

32 The prosecutor in that trial sought at the close of evidence to disclaim reliance upon any part of the evidence which related to acts or omissions of Robert Josef prior to 4 December 1995. Each of those acts or omissions as a matter of fact was causal of the risks to safety which existed on 4 December 1995. Each separate causal act or omission constituted a separate offence upon which the defendant was in jeopardy of conviction in that trial.

33 In the course of the trial the prosecutor led evidence at large without stating with precision not only to which charge, but to which offence it was relevant. He may not now submit otherwise than that every piece of evidence was relevant to every charge and each offence and he may not now, despite his attempted disclaimer, relitigate those acts and omissions which constituted the offences charged in the earlier trial.

34 There is between charges 5488 and 5486 a commonality of pleading, with the exception that in charge 5488 the particulars additionally plead: 11. On 4 December 1995 the company instructed Robert Campbell to operate an excavator. 12. On 4 December 1995 Robert Campbell used a 7 to 8-tonne Daewoo excavator on the eastern side of the KSU to create a batter. 13. The excavator was used to create the batter in the area where the gas supply line was situated.

35 These further particulars, in context, mean only that in that trial a duplicitous pleading, the instruction to Robert Campbell to operate an excavator, constituted a separate or further offence.

36 Upon the charges presently pleaded, that the defendant, between 10 November and 4 December 1995, by his earlier omissions of: (i) failing to take adequate steps to ensure the cutting off of the capped gas supply line which was charged, was affected (sic) in a position which was safe and without risks to health; (ii) failing to take adequate steps to ensure no gas supply lines charged with gas were situated in areas where construction work was to be performed; (iii) failing to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area; (iv) failing to provide and maintain a system for performing work that was safe and without risks to health in an area where a gas supply line was situated; (v) failing to make arrangements for ensuring safety and absence of risks to health in connection with use of a excavator in an area where a charged gas supply line was located; (vi) failing to maintain the Kogarah Station Upgrading in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace: (a) within one metre of a building to be demolished; (b) that was not adequately protected or identified; (c) where earthmoving machines were operated; (vii) failing to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the (a) location of the charged gas supply line; (b) risks associated with work adjacent to the charged gas supply line; (c) type of work that might be carried out adjacent to the charged gas supply line caused risk to the health, welfare and safety of employees on 4 December 1995, the defendant has been convicted. A further trial of the identical offences with only the date of the risk changed is oppressive.

37 As to the present charge, number 5486 of 1999, particular 12, in context alleges that Josef & Sons Contracting Pty Ltd failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line between 10 November 1995 and 4 December 1995. Evidence has been led that between 21 November 1995 and 24 November 1995 Mr Begg used earthmoving machinery in the demolition of the buildings upon the site close to the charged gas supply line.

38 It is in relation to that discrete offence that Mr Robert Josef now stands charged, pursuant to s50, he being a director concerned in the management of Robert Josef & Sons Contracting Pty Ltd at the relevant time. Because each of the general failures of suffering the gas line to be cut at a place which was not remote from the site and failing to mark the course and direction of the gas line are failures in respect of which the defendant has already been convicted, for the danger that was created on 4 December 1995, it would be unreasonable to press for further convictions of those discrete offences.

39 The failure to prevent Mr Begg's operation of earthmoving machinery close to the charged gas line between 21 and 24 November 1995 constitutes a different offence, the elements of which are not wholly included in any offence upon which a conviction has been recorded in matter 5488. The test, whether such a plea is a sufficient bar in any particular case is whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first (Li Wan Quai v Christie, (1906) 3 CLR 1125 at 1131).

40 Evidence of a failure to cut the gas supply line at a position remote from the demolition site and evidence of a failure to mark the course of the charged gas line on the ground was sufficient to procure a conviction of the offences charged in matter number 5488, the only difference in matter number 5486 being the date. It is a continuing offence. Charge number 5486 should be stayed as to the prosecution of the offences created by these failures.

41 Evidence of a failure by Josef and Sons Contracting Pty Ltd to prevent the operation by Mr Begg of heavy earthmoving machinery near a charged gas line on or about 21 November, while necessary to charge 5486 would not have been sufficient to procure a conviction of any of the offences duplicitously pleaded in charge number 5488 relating to the events of 4 December 1995 upon which convictions have been recorded.

42 The application to stay the prosecution of the offence constituted by particular 12 to charge number 5486 is refused.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.