Inspector McGrath v GPI

Inspector McGrath v GPI - [2009] NSWIRComm 194 - NSWIRComm 2009 case summary — Zoe

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3 The defendant, GPI(General) Pty Ltd ("GPI"), was charged with a breach of s 10(1) of the Act and, in the alternative to that charge, a breach of s 10(2) of the Act. The defendant, Grahamme Douglas McDougall, ("Mr McDougall") has been charged with a breach of the same provisions of the Act, which breaches are alleged have been committed by him by reason of s 26(1) of the Act because he was, as alleged, a director of GPI. 4 These proceedings were commenced, as I have said, by the filing of an application for order. This occurred on 17 April 2009. The order was applied for under ss 170(3)(b) and 246(1)(a) of the Criminal Procedure Act 1986 and s 168 of the Industrial Relations Act 1996. There was filed with the application for order an affidavit sworn by the prosecutor, said to be in support of the application and which set out not only the offences with which the defendants were charged but also particulars of each of the charges and some factual background setting out the circumstances against which the proceedings were sought to be commenced. 5 The orders, accompanied by a copy of the application for order and the affidavit in support, were served on the defendants. 6 As the charges brought against each of the defendants are, in effect, contained within the application for order, I set out below those parts of the application for order by which the charges and particulars of each of the charges brought against each of the defendants is framed. In doing so, I shall set out only those that refer to proceedings IRC 538 of 2009 brought against Mr McDougall because they encompass all of the charges and particulars brought against GPI, the corporation of which Mr McDougall was alleged to be a director. I, Inspector Cherie McGrath, of the WorkCover Authority of New South Wales, Level 2, 12 Butler Road, Hurstville, in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ('the Act') and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter allege that Grahamme Douglas McDougall of 33/8 Dunmore Terrace, Auchenflower, Brisbane in the State of Queensland ('the defendant') being a director of G.P.I (General) Pty Ltd [ACN 010 761 136] a corporation whose registered office is situated at c/o Barry A Helton & Co, 3/36 Windsor Road, Red Hill in the State of Queensland ('the corporation), by virtue of section 26 (1) of the Act, is taken to have contravened section 10(1) of the Act in that the corporation, on 20 April 2007, having control, or alternatively, only limited control, in the course of its trade, business or undertaking, of premises located at 82 Marple Avenue Villawood, in the State of New South Wales ('the premises'), being premises not occupied as a private dwelling, and used by people not in the defendant's employment as a place of work

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In the alternative, the offences as charged and so particularised are incapable of compliance, and as such it is an abuse of the process of this Honourable Court to seek that the Defendant answer to them. 14 In support of the motion, the defendants sought to rely upon such evidentiary material as was contained in the affidavit in support sworn by the prosecutor. It was said that this established a certain factual matrix which applied to the proceedings and a consideration of which would enable the Court to determine that the charges were "unknown to law." Put shortly, the defendants submitted that s 10(1) should be construed so that its provisions were directed only to the physical state of premises or some characteristic inherent in the nature or condition of the premises without reference to any activity that was being undertaken by anyone on the premises. Accordingly, it was said that the particulars of the charge could not, as a matter of law, be sustained. 15 In my opinion, there are a number of answers to this submission. The first is that particular c) asserts a failure to ensure that adequate markings and collision protection were in place. Arguably, these might go to the physical nature of the premises. Furthermore, with respect to d), e), f) and g), the prosecutor submitted that it would be argued that, as a matter of law, the state, condition or nature of premises would be affected by whatever activities were being conducted upon or in them and to this extent those activities would impact upon and affect the safety of the premises themselves. A consideration as to whether or not the premises were "without risks to health" is, presumably, a reference to a state of affairs. 16 These matters, that is the construction of the provisions of the section, cannot be considered in a factual vacuum. This would require some factual hypothesis to be erected against which the construction of the provision would need to be determined given the fundamentally opposed positions of the defendants and the prosecutor. Such a matter could only properly and appropriately be considered, in my opinion, at an appropriate time in the proceedings, namely when all of the evidence has been adduced in the proceedings that is relevant to a determination of these issues. 17 Accordingly, I conclude that it would be inappropriate to accede to the defendants' motions to the extent that they rely upon a construction of the provisions of s 10(1). 18 The defendants sought to raise the same issue with respect to the provisions of 10(2) being the alternative charge brought against the defendants. The same reasoning applies to the provisions of this sub-section and the charges brought against the defendants under them. This dictates that the same result must follow. 19 The second ground relied upon by the defendants was that, in effect, they are unaware of the nature and extent of the particulars of the conduct, whether by way of act or omission, with which they are charged and the lack of particularity is so extensive that it would be impossible for them to understand how it is said that they could have complied with the offences as charged. As such, the defendants complained that the proceedings constituted an abuse of the processes of the Court and should, in effect, be struck out or permanently stayed. 20 In considering the submissions of the parties concerning this aspect of the proceedings, which were both in written and oral form, the debate crystallised into a consideration as to whether or not the charges were invalid for lack of particularity. 21 I observe immediately that the charges are framed so as to reflect the provisions of ss 10(1) and 10(2). This directs attention to the provisions of s 11 of the Criminal Procedure Act which is in the following terms: 11 Description of offences

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The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law. 22 If the matter were governed solely by the provisions of s 11, which apply to these proceedings, that would, in my opinion, be an end to the matter. Any concern that the defendants might have about the nature and extent of the particulars of the charges could be attended to by requiring the prosecution to furnish such particulars as might be found to be relevant and appropriate. 23 However, there is a suggestion in the authorities that notwithstanding provisions of the kind found in s 11, the failure to "identify an essential factual ingredient of the actual offence" might render an originating process defective and liable to be struck out. 24 In the High Court of Australia in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, in a joint judgment Mason CJ, Deane and Dawson JJ, in discussing whether proceedings were defective by reason of a failure to identify a "material particular", referred to 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 …. Their Honours referred to a requirement "that a valid information must at least identify the essential factual ingredients of the actual offence …." (At [14]). 25 In discussing what constituted "the essential factual ingredients of the actual offence", their Honours said: [15] In De Romanis v. Sibraa (1977) 2 NSWLR 264, at p 291, Mahoney J.A. correctly pointed out 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. As his Honour commented (at pp.291-292): "In Johnson v. Miller [1937] HCA 77; (1937) 59 CLR 467, at p 486 Dixon J. saw the decision in Smith v. Moody (1903) 1 KB 56, at pp 61, 63 as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J. [1937] HCA 77; (1937) 59 CLR 467, 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. ...

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If an information is invalid for the reason that it fails sufficiently to identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement, such as that contained in s.56(4) of the Consumer Protection Act , that proceedings be commenced by information since, as a matter of ordinary construction, such a requirement can only be satisfied by a valid information. 26 In John L, a defendant had been charged with a breach of a provision of consumer protection legislation. The breach applied, inter alia, to the publication of a statement which was "intended or apparently intended to promote the supply or use of goods or services …" and "is to his knowledge false or misleading in any material particular." 27 An information alleging a breach of this provision asserted that the defendant had caused to be published a statement of the kind described, detailed the contents of an advertisement but did not identify the "material particular" in which the published statement was alleged to be false or misleading. It was held by the Court that the "material particular" in which the statement was said to be false or misleading was an essential factual ingredient of the actual offence and the failure to include it "was not a mere technical one. It was fundamental." (At [16]). Accordingly, such a defect was fatal and it was appropriate that the information be quashed. 28 However, the High Court then went on to consider whether the defect and resultant invalidity which it had identified could be avoided or overcome by the provisions of s 6 of the then Summary Jurisdiction Act. That provision was to relevantly similar effect to the provisions of s 16(2) of the Criminal Procedure Act, which I now set out. 16 Certain defects do not affect indictment … (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or

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(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. 29 The High Court held that the provisions of s 6 of the Summary Jurisdiction Act did not apply to the proceedings before it and it was unnecessary therefore to apply those provisions. 30 There was debate between the parties about whether the provisions of s 16(2) applied to these proceedings. It was suggested by the defendants that they were confined to proceedings commenced by way of indictment. 31 I have not found the understanding of the provisions of s 16(2) an easy task. This seems to me to be created by the positioning of the words "are commenced" within the opening words of the sub-section compounded by the reference to the Local Court. Clearly, the sub-section is intended to apply to two alternative situations. The first is to "any indictment by which criminal proceedings (including committal proceedings) in the Local Court are commenced". The second set of proceedings are those "for any other offence that is to be dealt with summarily." It is not clear to me on a first reading of the sub-section whether the alternative circumstances which follow the use of the word "or" are intended to refer to an indictment that is to be dealt with summarily and as to whether it is intended that these circumstances be further confined to proceedings in the Local Court. In my opinion, it is possible to read the second part of the sub-section as applying only to proceedings commenced by indictment to be dealt with summarily, and such proceedings that are commenced in the Local Court. 32 An alternative way of reading the sub-section is to consider what is intended to be referred to by reference to the proceedings that "are commenced". In this way, the first set of proceedings would be those that are commenced by indictment (including committal proceedings) in the Local Court. The second set of proceedings would be those that are commenced, again by indictment, for any other offence of any kind before any other Court that is to be dealt with summarily. 33 Some clue is provided by the provisions of s 15 of the Criminal Procedure Act which is in the following terms: 15 Application of Part

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(2) In this Part: indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced. 34 If one applies the provisions of s 15(1) and (2) to the fullest extent permitted, this would result in the application of a construction of the provisions of s 16 so as to apply to proceedings instituted in this Court as a result of an order made upon application. Indeed, if one reads s 15 prior to attempting a construction of s 16(2), one is driven to this latter construction. (I would interpolate, however, that if the word "indictment" is to bear the meaning intended by s 15(2) and which is to apply throughout Part 2 of Chapter 2 of the Criminal Procedure Act one must wonder why the provisions of s 16 persist in using the word "indictment" rather than some other word that signifies a document by which criminal proceedings are commenced.) 35 Having regard to the provisions of s 15, I would resolve the difficulty in construction of s 16(2) in the manner that I have described by construing its provisions so as to apply to these proceedings. These proceedings are to be dealt with summarily and have been commenced by an application for order and would fall within the alternative proceedings as described in the sub-section. 36 As I have said, the provisions of s 16(2) are relevantly similar to those that were formerly contained in s 6(1) of Summary Jurisdiction Act, legislation that applied at the time that the High Court of Australia considered proceedings in John L, previously referred to. In John L the majority, Mason CJ, Deane and Dawson JJ held that s 6(1) of the Summary Jurisdiction Act did not apply to the proceedings and they did not consider, therefore, the application of that provision to the form of the information. Brennan J, in dissent, did consider the provisions of s 6(1) of that Act although his Honour had concluded that the information was valid. 37 In his judgment, Brennan J (as his Honour then was) said: [13] But in any event, s.6(1) of the Summary Jurisdiction Act is conclusive. That sub-section operates not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications. Griffith C.J. stated the effect of such a provision in Hedberg v. Woodhall [1913] HCA 2; (1913) 15 CLR 531, at pp 534-535: "Up to the end of the first half of last century innumerable objections could be taken in cases before magistrates. Then came the Acts called Jervis's Acts , which did away with many of them. One of those Acts, 11 & 12 Vict. c.43 ... provides (sec.1) that no objection shall be taken or allowed to any information for any alleged defect therein in substance or in form. That apparently means that if objections are taken which really do not go to the merits of the case the magistrate is not to stay his hand, but to proceed to dispose of the case on the merits."

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[102] The lack of content in the particulars is significant in another respect. If the obligation to obviate risks to health and safety is absolute, it may be of assistance to the Court to know how the steps, the omission of which is relied on by the prosecutor, were said to have been capable of obviating the relevant risk. Furthermore, to be able to defend itself, the employer might wish to know what was the precise "risk" which was said to exist in relation to the use and operation of the ATV. 48 In my opinion, the defendants in relying on these observations of Basten JA have crossed the line that demarks a consideration of what are the essential ingredients of the offence and the essential factual ingredients which apply to the charge from a consideration of what are appropriate particulars that a prosecutor might properly be required to disclose to a defendant. 49 In my opinion, the charges as particularised satisfy the requirements imposed both by statute and at common law in that they set out what are the essential ingredients of the statutory offence and the essential factual ingredients of the actual offence and cannot therefore be regarded as being invalid so as to found any determination that the proceedings should either be struck out or permanently stayed. 50 If I were incorrect in this conclusion I would nevertheless apply the provisions of s 16(2) of the Criminal Procedure Act because that sub-section prohibits an objection of the kind brought by these defendants in these interlocutory proceedings. 51 I turn now to consider the alternative charge, which is directed to the plant, namely forklift vehicles. I have already set out the particulars of the charge. In my opinion, when one combines the alternative charge itself and the particulars given, there is, for the reasons that I have given in connection with the charge going to the premises, sufficient particularity so as to satisfy the requirements that the defendants are informed of the essential ingredients of the statutory charge and the essential factual ingredients of the actual offence. 52 For the same reasons, the defendants' application with respect to the alternative charge should be dismissed. IRC 537 of 2009

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As a result of the corporation's failures Michael Scott Annetts and Stephen Mamuti and other people working at the site were placed at risk of injury. 55 The attack made by the defendant in these proceedings is the same as that made by him in connection with the other proceedings, with which I have dealt. The only difference applies to the particular factual circumstances and by reason of the charge being brought under s 8(2) of the Act rather than s 10. 56 The defendant's submissions in this matter traversed the same ground as that covered in the proceedings that I have previously dealt with. There was a specific complaint that the nature of the risk was not disclosed, that there was no, or insufficient, reference to how it is that the failure alleged against the corporation resulted in the risk of injury and an expression of incredulity that the corporation could, in all the circumstances, be accused of having breached the provisions of s 8(2) of the Act. 57 In this latter regard, I note that many defendants of criminal proceedings complain about being unfairly and unjustly charged and forced to defend them at great cost and personal inconvenience. The fact that a defendant in criminal proceedings protests innocence and complains about the proceedings having been instituted is not, of itself, a reason for a court to bring the proceedings to an end. Prosecutions are habitually instituted by organisations charged by government with that task such as the DPP and the WorkCover Authority of New South Wales that are bound by their own codes of conduct and by obligations imposed upon them by the courts to ensure, to the extent possible, that proceedings that are frivolous or vexatious in nature or that have little chance of success or that are inappropriate in all of the circumstances are not instituted. Furthermore, legal practitioners representing prosecutors are bound by concurrent duties and responsibilities owed by them to the courts and reinforced by their own professional rules to ensure that prosecutions which are inappropriate or improperly commenced are not proceeded with. 58 Mr Reitano, of counsel, who appeared for the prosecutor to resist the orders sought by the defendants, advised the Court that the defendants' legal representatives had been served with five binders of documents which comprised the prosecutor's brief of evidence. Furthermore, even though the factual background against which these proceedings are brought would appear to be confined to a corporation that provided labour at the particular site, nevertheless, the prosecutor asserted during the course of submissions that there was evidence available that, when the proceedings went to trial, would arguably demonstrate that there was a failure on the part of the corporation to act in the manner alleged in the application for order, albeit that a court might not ultimately accept that any or all of those matters were either relevant or proven. 59 As I have said, these concerns do not go to the validity of the charge or to any question as to whether or not the prosecutor should be precluded in some way from proceeding with this charge against this defendant. 60 As to the remainder of the bases agitated by the defendant, the same circumstances apply as in the case in the earlier proceedings. An examination of the charge and the particulars reveals, in my opinion, that each of the essential ingredients of the statutory charge and each of the essential factual ingredients of the actual offence have been set out in the initiating process. Of course, there may well be a need for greater particularity, as was conceded by counsel for the prosecutor. Whether and to what extent such particularity is necessary is not a matter for determination at this stage. 61 For the same reasons, I would dismiss the motion brought by the defendant in connection with these proceedings. 62 For the reasons given, the motions filed by the defendant in each of these proceedings must be dismissed. Ordinarily, costs would follow the event, however, I shall reserve costs. Orders

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