Inspector McGrath v Cooper

The Amendment Motion 38I turn now to deal with the prosecution's application to amend charge 1052. 39The application seeks to amend Particulars H and I of charge 1052. The charge in its original form pleads that the defendant, a self-employed person, "failed to by his acts or omissions, particularised below, ensure that people (other than the defendant's employees) ... were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work contrary to section 9 of the Act .... ... Particulars of the Defendant's failings in relation to information, instruction and training H. The defendant failed to provide adequate information and instruction to persons who were not his employees necessary to ensure their health and safety whilst undertaking work at heights on the mezzanine floor at the premises. Measures the Defendant should have taken and failed to take I. The defendant should have taken but failed to take the following measures in order to ensure adequate information and instruction was given to persons who were not his employees in relation to working at heights, including: i. supervised persons who were not his employees undertaking work in relation to the construction of the new trade retail facility at the premises to ensure that they did not work on or from the mezzanine level whilst there was no fall arrest or fall prevention system in place at the premises; ...". 40The amendments sought to both Particulars seek, in effect, to substitute the words "information, instruction and training", and, "information and instruction" where they appear in the Particulars for the word "supervision". The purpose of the proposed amendments, the prosecution explained, was to correct a clerical error, or a misstatement, in the original charge, which should have alleged "supervision" in lieu of "information and instruction". The fact of the clerical error was said to be demonstrated by reference to the measure particularised in Particular I(i) which refers to "supervised persons". Because the original charge contains a misstatement it may be amended by recourse to the curative provisions under the Criminal Procedure Act 1986 (CPA 1986), namely, ss 16, 20 and 21, or, under s 170 of the Industrial Relations Act 1996 (IRA 1996), provided that the Court consider the amendments to be necessary in the interests of justice. 41During the hearing of the application, counsel for the prosecution, Mr Magee, submitted that the amendments sought would not change the nature of the offence charged under s 9 of the OHS Act 2000. Rather, what is being sought is an amendment to, "a particular of the measures or the acts or omissions". The essential legal elements of the offence are properly pleaded and no amendment is sought to be made to those legal elements. 42In opposing the proposed amendments, counsel for the defendant, Mr Bennett, submitted that what the prosecution was attempting to do was delete one charge and substitute it with another, a course not permissible because the limitations period under s 107(1) of the OHS Act 2000, within which time such an amendment may otherwise be made, has expired. The defendant also described the original charge as containing a misstatement and submitted that the prosecution, by the proposed amendments, was attempting to substitute, "one measure (for) another measure" which cannot be done because the measure sought to be substituted is a "legal element". Accordingly, in reliance upon Gilmour v Midways Springwood Pty Ltd (1980) 3 A Crim R 196; (1980) 33 ALR 605 per Brennan J and Surman v SA Police (1996) 65 SASR 421 per Bollen J, the amendment if granted, would cause an injustice because it would result in a new charge which is outside the time limit. 43It was also submitted by the defendant that the amendments here sought, which would have the effect of replacing one charge with another charge, could not be characterised as "technical" amendments. This submission was based on observations made by Basten JA in Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128; (2007) 165 IR 7, at [125] where his Honour, in adopting the words of Gleeson CJ (with regard to "technical validity") in Stanton v Abernathy (1990) 19 NSWLR 656 at 667 found that a charge under s 10 of the Occupational Health and Safety Act 1983 (OHS Act 1983) failed to allege an "essential legal element", namely that relevant plant was controlled "in the course of a trade, business or other undertaking" but, "did not involve a fundamental issue, going to the fairness of the prosecutor, and should better be described as a complaint, 'at the level of technical validity'". This was because the charge otherwise stated that the relevant plant was "used by people at work", and "was in the control of the defendant". There was, therefore, "little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking". 44It is unnecessary for the Court to explore whether or not the proposed amendments deal in effect, with a complaint made "at the level of technical validity". For reasons which follow it is my view that the amendments, if made, would not result in a new charge, or the replacement of one legal element with another legal element. 45The charge, as originally drafted, attempts to conform as closely as possible to the requirements in Kirk that a charge under s 15 of the OHS Act 1983 (now s 8(1) of the OHS Act 2000) must identify with sufficient precision the acts or omissions of an employer said to constitute a contravention of the Act. The requirements for a valid charge set down in Kirk were summarised by the Full Bench in Lorenzo and Santos at [31] to [34] as follows: [31] The term, Statement of Offence (or "Statement of the offence"), which was adopted in Kirk to describe the applications for order under s 15(1) and s 16(1) of the 1983 Act was accepted by the Full Bench (by reference to several passages in Kirk ) as constituting the charge (a description of the legal nature of the offence, that is, the legal elements), the particulars (that is, the essential factual ingredients of time, place and manner) and the consequences (that is, the exposure to risk by reason of a defendant's acts or omissions): Chevalley at [41]. This construction was also consistent with findings in John Holland (Court of Appeal) at [55] and [56] in which Spigelman CJ (with whom Beazley and Giles JJA agreed) said: Counsel for John Holland submitted that the Court should focus only on the statement of the charge on the first page of each Application for Order. John Holland, but not Parsons Brinckerhoff, submitted that the balance of each Application, which provides particulars of the charge, is not the statement of the offence for the purpose of applying the reasoning of the High Court in Kirk . This is too narrow an interpretation of that reasoning. Indeed, it is inconsistent with the reasoning in Kirk which, as I have set out above, analysed the particulars provided, as well as the charge. An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked. [32] Kirk did not determine that the acts or omissions of a defendant alleged to cause the risk to safety were legal elements of an offence: John Holland at [67]; Chevalley at [55(f)]. [33] It was held by the majority in Kirk that charges under ss 15(1) and 16(1) of the 1983 Act had to plead the acts or omissions of a defendant that created the risk to safety: John Holland at [70] (both legal elements and essential factual particulars are required to be pleaded); Chevalley at [103]. On this issue, Spigelman CJ in John Holland (Court of Appeal) (at [32]) extracted two propositions from the majority judgment in Kirk , necessary to establish a contravention of the provisions: "A statement of an offence must identify the act or omission said to constitute a contravention" - see [14], [15], [27], [37], [38], [74]; and The "relevant act or omission which gives rise to the offence" is "a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating" - see [12], [14], [19], [28], [38]. [34] A rationale for the requirement that the acts or omissions be pleaded in a charge is to ensure that a defendant knows what specific acts or omissions are alleged against it in order that it may raise a defence: Chevalley at [104]. 46The acts or omissions and the measures not taken, pleaded in a charge under the occupational health and safety legislation which includes s 9 of the OHS Act 2000, have been described as essential factual ingredients, not legal elements: Masterton at [18]. The distinction between these two types of elements or ingredients, both of which must be pleaded in a charge, continues to be maintained by recent authorities. This is because maintaining the distinction is important, if only for the reason that depending upon what category a particular allegation in a charge falls, the attendant consequences may be different. The distinction was touched upon in Lorenzo and Santos at [63] [64] where the Full Court said: [63] Kirk did not decide that the acts or omissions of the corporate defendant, causing the risk, were legal elements of the offence: Chevalley at [56(b)]; Taylor v EPA; McConnell Dowell v EPA and Childs v Serena . The Full Court in John Holland held that the acts or omissions of the corporate defendant were not legal elements (at [67]), but added that it mattered not whether those acts or omissions were to be properly characterised as legal elements or essential factual ingredients since both were required to be pleaded in a charge: Chevalley at [73]. [64] The distinction, however, has relevance to the issue as to whether the failure to state essential elements in a charge is curable and, if so, the relevant statutory provisions which may be available to cure the defect. If the relevant acts or omissions may be characterised, as we have done, as essential factual ingredients, this has the consequence that the charges although defective are capable of amendment under s 170 of the IR Act: John Holland at [72] to [74], citing with approval John L at 521-522 and Stanton v Abernathy at 667. However, neither s 16(2) of the CPA or s 170 of the IR Act will obviate the need to observe procedural fairness or cure any failure in that respect: Stanton v Abernathy at 667, 669 to 671; DPP v Esso Australia Pty Ltd [2001] VSC 103 at [24] and [25]. 47The failure to plead, or plead inadequately, in a charge the acts or omissions, or measures not taken does not necessarily, or inevitably, render the charge invalid. Much depends upon the stage of the proceedings at which the issue arises. There is support for these propositions in the majority judgment in Kirk at [30] and [74]. The position was explained in Masterton at [32]-[34]: [32] In Kirk (at [74]) the majority found that the Court at first instance had fallen into jurisdictional error because it had misconstrued s 15 of the OHS Act 1983 which led it to make orders convicting and sentencing Mr Kirk and his company, "where it had no power to do so". The majority continued at [74] and [75]: The first of the errors in question in this case - the errors of construction of s 15 of the OH&S Act - can be identified as a jurisdictional error of the third kind identified in Craig . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct. The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make. [33] There are indications in the majority judgment that the defective charges would have been curable had appropriate particulars been provided at some stage during the course of the proceedings, but before those proceedings were finally determined. In the majority judgment at [30], for example, appears the following passage: However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. [34] To similar effect is the finding in Kirk at [74], cited above, that the Court at first instance had no power to convict and sentence Mr Kirk or his company, "because no particular act or omission ... was identified at any point in the proceedings, up to and including the passing of sentence": (see also John Holland (Court of Appeal) per Spigelman CJ at [41]-[45]). 48It follows from the foregoing observations that a charge otherwise defective by reason of a failure to plead, or to adequately plead, an act or omission, or measure, may be amended if an application is made at an appropriate stage of the proceedings, that is, prior to conviction (see also John Holland ) (Court of Appeal) per Spigelman CJ at [41]-[45]). A charge which fails to plead a legal element otherwise not capable of remedy on the basis of, for example, technical error (in the sense referred to in Rockdale Beef at [125]), or otherwise not capable of being implied by reference to other allegations in the charge ( Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 at [33] per Spigelman CJ) may not be saved by recourse to a curative provision. In the same circumstances described above, the charge may not be amended outside a limitation period to cure the defect by substituting one legal element for another legal element, where the amendment, if made, would result in a different offence: Gilmour v Midways at 608; Surnam v SA Police at 427. 49The issue which now arises is the identification of the legal elements of an offence under s 9 of the OHS Act 2000. A second and related issue concerns the identification of the relevant omissions and measures that should have been taken as alleged in the charge, as distinct from the legal elements. 50In Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 at [12], the Full Court identified the legal elements of an offence under s 8(2) of the OHS Act 2000, a provision in identical terms to s 9 except for one difference which is that the former provision is directed to employers and the latter provision is directed to self-employed persons. Those elements are:

The defendant was an employer;
there were persons not employees exposed to risks to their health or safety;
the risk arose from the conduct of the defendant's undertaking; and
the exposure to risk was at the defendant's place of work. 51Section 9 of the OHS Act 2000 (in force prior to 7 June 2011) provides: A self-employed person must ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. 52The legal elements of an offence under s 9 are:
The defendant was a self-employed person;
there were persons not employees exposed to risks to their health and safety;
the risk arose from the conduct of the defendant's undertaking;
the exposure to risk was at the defendant's place of work. 53As the paragraphs immediately above indicate, the legal elements of an offence may be found in the words of the statutory offence. This proposition was emphasised in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39 by Ipp A-JA where his Honour said at [13]-[16]: [13] The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements 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. But putting the difference in this way does not necessarily help in the differentiation process. [14] I think it helpful to note that the purpose of 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 (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out. [15] The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients. [16] This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are s 16(1) and s (7) of the Clean Waters Act . Section 16(1) provides: "A person shall not pollute any waters". Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences and Penalties Act . 54The observations of Ipp A-JA with regard to the elements of a statutory offence are consistent with the requirements for the institution of proceedings for offences under the OHS Act 2000. Those requirements may be found in s 246(2) of the CPA which provides that "an application for an order" (a charge), "must be in accordance with the Rules". The relevant rule for present purposes is Rule 16.1 of the Industrial Relations Commission Rules 2009 (the 2009 Rules). Rule 16.1 provides: 16.1 Form of application for order for defendant's appearance (1) An application for an order under section 246 of the Criminal Procedure Act 1986 must state the following: (a) the name and address of the person by whom the proceedings are brought ( the prosecutor ), (b) the capacity in which the prosecutor is taking the proceedings, (c) the name and address of the person against whom the proceedings are brought ( the defendant ), (d) the statutory provision (Act and section) under which the defendant is alleged to have committed an offence, (e) the nature of the alleged offence. 55The "nature of the alleged offence" in Rule 16.1(e) refers to the legal elements of an offence: Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 at [37(e)]; Lorenzo and Santos at [35]. Section 11 of the CPA allows for the description of an offence to be made in the words of an Act creating the offence. It follows ( Lorenzo and Santos at [36]) that if the present charge brought under s 9 describes an offence in the words of that provision then the charge has met the requirement of identifying the legal nature of the offence (subject to it otherwise admitting no uncertainty or ambiguity: Rockdale Beef at [131]). 56Applying these matters to charge 1052, it may be seen that it pleads all the legal elements of an offence under s 9, and the Particulars which follow identify the omissions and measures which purport to describe how, or in what manner, the defendant is alleged to have failed to ensure that persons not his employees were not exposed to risks to their health or safety. So described, the subject matter of Particulars F, G, H and I falls into the category of essential factual ingredients which must be pleaded in a charge, but which may be amended at any time, up to the stage of conviction, if it is in the interests of justice: Masterton at [18] (with regard to the former proposition). 57According to the defendant, to allow the amendments would be to substantially change the nature of the case and amount to the bringing of a different charge. The defendant did not develop this submission further except to place relevance on the general proposition acknowledged in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 at [36] per Hodgson JA, that, "an amendment can be granted, at least unless it were to substantially change the nature of the case ...". 58Although the proposition cannot be doubted, it is difficult to see at this stage of the proceedings how the proposed amendments could have this result. The charge concerns workers who were exposed to the risk of falling from the edge of the mezzanine level because of the absence of any fall protection in the form of various nominated barriers. The only material the Court has recourse to at this stage of the proceedings is the charge and the initiating affidavit. The affidavit asserts that the project manager for the construction project at the premises was responsible for the supervision of tradespeople, "including the provision of information and instruction". Not uncommonly in occupational heath and safety prosecutions, the concepts of supervision, instruction and information are interrelated, that is, information and instruction form integral parts of supervision. The material in the affidavit suggests this to be the case. 59In my view, it is in the interests of justice under s 170 of the IRA to allow the amendments. There can be no relevant unfairness or prejudice visited upon the defendant if the amendments are made. The defendant will not be deprived of the opportunity to meet the new allegations. The proceedings are at an early stage and the defendant has yet to enter a plea to each charge: G.P.I. at [80] per Basten JA; see also Regina v Lykouras [2005] NSWCCA 8 at [22] per Howie J (with whom Sully and Hidden JJ agreed). 60The amendments will, of course, take effect as at the date the charge was filed, in accordance with the ordinary rule: G.P.I. at [37]. 61The Court makes the following orders:

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