Inspector Ross Wolf v Rockdale Beef Pty Ltd

Occupational Health and Safety - prosecution under section 8(2) and section 10 of the Occupational Health and Safety Act 2000 - notice of motion seeking dismissal of order - whether prosecutor failed to put relevant material before the Judge issuing order - whether there was an abuse of process - no abuse of process found - whether defendant entitled to raise these questions at this stage of proceedings - jurisdiction found - whether proceedings were brought within time - whether order failed to disclose an offence under s10 of the OHS Act - whether order breached ss30 and 31 of the OHS Act - contraventions of both section 8 and section 10 of the OHS Act being alleged - prosecution to proceed with s8 offence as charged - s10 offence dismissed CATCHWORDS:

Criminal Cases Act 1967 Criminal Procedure Act 1986 Industrial Relations Regulations 1996 Occupational Health and Safety Act 1983 LEGISLATION CITED: Occupational Health and Safety Act 2000 Occupational Health and Safety Act 1985 (VIC) Supreme Court (Summary Jurisdiction) Act 1967

ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997) Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 Allerton v DPP (1991) 24 NSWLR 550 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Ors (2004) 205 ALR 1 R v Hull (1989) 16 NSWLR 385 CASES CITED: Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Taylor v Environment Protection Agency (2000) 50 NSWLR 48 Vines v Djordjevitch (1955) 91 CLR 512 WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd (2001) 110 IR 152 WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd and Others (2002) 116 IR 128

PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANT: Mr GJ Hatcher SC with Mr S Bell of counsel SOLICITORS: Terrett Lawyers

• 22 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 This prosecution concerns offences alleged to have been committed in 2001, when a Mr Christopher Poole was injured while working machinery in the boning room of an abattoir at Yanco. 2 These reasons concern a motion filed by the defendant, seeking the dismissal of the order issued, for various reasons. The grounds advanced went to matters such as the proceedings having been initiated out of time; the order being issued inconsistently with the provisions of ss30 and 31 of the Occupational Health and Safety Act 2000 ('the OHS Act'); the prosecutor having failed to put the relevant material before the judge issuing the order; that essential elements of the offence had not been provided and abuse of process. 3 The prosecutor resisted the orders, also taking the point that the defendant had no right to make the application, having regard to s179 of the Industrial Relations Act 1996 ('the Act').

Is the defendant entitled to raise these questions for determination at this stage of the proceedings? 4 It is convenient to deal firstly with the question of whether or not the Court, as presently constituted, may deal with the defendant's motion. I am satisfied that there is jurisdiction, given the orders finally pressed in the further amended motion filed on 10 May 2005. 5 The proceedings were commenced on 23 October 2003, with the filing of an application for order, supported by an affidavit sworn by the prosecuting Inspector. The application for order concerned offences alleged to have been committed on 27 October 2001. The order was made by Justice Boland on 3 November 2003. The proceedings are summary (s105 of the OHS Act). Section 107 relevantly provides that proceedings for an offence must be 'instituted within the period of 2 years after the act or omission alleged to constitute the offence'. 6 Boland J made the order under s246 of the Criminal Procedure Act 1986, as applied by s168 of the Act. It was that order which was then served on the defendant and which brought it before the Court. The defendant had no notice of the application for order earlier dealt with by Boland J. Rule 217B of the Court's Rules requires that proceedings for offences under the OHS Act be commenced in this Court by application for order. Rule 217C requires that any order made must be served upon a defendant, together with a copy of the application for order and supporting affidavit. Unless otherwise directed by the Court, the application is not to be served before the order is made. 7 It follows that the defendant had no opportunity to raise the matters now raised in the motion, before Boland J. Were it not to have an opportunity to raise these issues now, it would only be an appeal bench, were an appeal to be filed against Boland J's decision to make the order, which would be able to consider the issues now raised. That would be a curious outcome, in circumstances where the defendant had never been heard as to these matters at first instance. 8 While not directly on point, the approach taken by the Full Court in Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139, tends to accord with the view which I take. There, the Full Bench refused leave to appeal from a decision of Wright J, President, to issue orders under s4(1) of the Supreme Court (Summary Jurisdiction) Act 1967. His Honour had made that decision, as the result of a hearing in which the defendant had finally determined to make no submissions in support of, or opposition to, the application that the orders be made. When the matter came before Justice Kavanagh for hearing, (WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd (2001) 110 IR 152), the defendant filed a motion seeking a declaration that the orders were made outside the time imposed by s49(4) of the Occupational Health and Safety Act 1983. Her Honour concluded at [23] to [25]: 23 I find the privative section of the Industrial Relations Act 1996, namely, s179 protects the Orders made by Wright J, President on 7 February 2001. I find s179 precludes the present challenge to the validity of the Orders made by Wright J, President on 7 February 2001.

24 Mr Hodgkinson, in the alternative, makes two further submissions. He submits firstly the issuing of the Orders was an abuse of process given the requirements on the WorkCover Authority under s49(4) of the Act, and secondly, arising out of the lack of particularity and/or a lack of evidence provided by the prosecution there is not established an alleged offence was committed on the day/days as pleaded in the charge. Therefore, he submitted, some charges must be held to be duplicitous.

25 If the defendants wish to challenge the jurisdiction of the Court to hear the prosecutions, such challenges should be heard at trial and determined in accordance with established legal principles and at the appropriate time within the trial process. It is clearly stated law that it is most undesirable to fragment the criminal process. As was held in Yates v Wilson & Ors 168 CLR 338 (at 339) by Mason CJ, joined by Toohey and Gaudron JJ, on an application for special leave to appeal from a decision of the Federal Court of Australia: It would require an exceptional case to warrant the grant of special leave to appeal in relation to a review by the Federal Court of a magistrate's decision to commit a person for trial. The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us. It is a factor which should inhibit the Federal Court from exercising jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and as well inhibits this Court from granting special leave to appeal.

9 The Full Court refused leave to appeal from the judgment of Wright J, given that the defendant had failed to raise the matters pressed on the motion before his Honour at first instance and also because there was no appeal from the decision of Kavanagh J. The Full Court doubted that Wright J was obliged, when issuing the order, to consider the question of whether the proceedings had been brought within time, but took the view that the issue should only be decided if the Full Bench had the benefit of reasoning at first instance. It did not itself make first instance judgments. (See at [8].) 10 This approach accorded with that later taken in WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd and Others (2002) 116 IR 128 at [66], where it was concluded that orders dismissing proceedings and refusing to issue orders under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 were not final and did not have the effect of finally disposing of the rights of the prosecution (at [66]). Likewise, a decision to issue orders under the Criminal Procedure Act 1986, (which has replaced the repealed Supreme Court (Summary Jurisdiction) Act), to bring a defendant before the Court in relation to offences alleged to have been committed under the OHS Act, cannot be regarded as final and disposing of the rights of the defendant in relation to the initiating process and the Court's jurisdiction to hear the prosecution. 11 This must particularly be so when the defendant has never been heard at first instance in relation to such matters. Indeed, it is relevant to this conclusion that in TMG International, the Full Court took the view that the time to consider whether a prosecution was brought within time, was not when the judge was determining whether to issue orders, but subsequently, if the defendant raised the point and sought either a permanent stay or dismissal of the proceedings (at [94]). 12 The circumstances here were different to those in TMG International. There was no hearing before Boland J as to whether the orders should be made. The defendant was unaware of the application that orders be issued, until after the orders had been made and served upon it. I am satisfied that the issues raised on the motion go to the Court's jurisdiction, amongst other matters, and that the defendant is entitled to raise them at this stage of the proceedings. 13 I also note that the prosecutor finally accepted that this must be the correct view, given the orders finally pressed in the further amended motion.

Were the proceedings brought within time? 14 I turn then to consider whether the proceedings were brought within time. The question is whether the proceedings for the offence, were instituted by the filing of the application for order, or by the making of the orders. On the defendant's approach, the application for an order is not the document which institutes the proceedings for the offence. It is not the initiating process. It is a document which is not required to be served upon the defendant. It is not until the order is signed, after an ex-parte process, that the defendant is obliged to appear before the Court, to answer the charge. If the order is refused, the defendant is never brought before the Court and proceedings for the offence alleged are never on foot. 15 On the prosecutor's approach, the proceedings are instituted with the filing of the application for order, notwithstanding that the defendant is not entitled to be heard on the question of whether the order should be issued by the Court. 16 Relevant to a consideration of the competing constructions is a consideration of their consequences. If an application for an order is filed shortly before the end of the two year limitation period, the prosecutor runs an obvious risk. If the judge refuses to issue the order, there may not be sufficient time to make a fresh application. On the prosecution's approach, however, there may be an opportunity to appeal the judge's decision. Any order issued as the result of a successful appeal, would be within time. On the defendant's approach, such an order would be outside the limitation period. 17 The defendant relied upon the Court of Appeal's judgment in Allerton v DPP (1991) 24 NSWLR 550, where the analysis of Gleeson CJ, as he then was, in R v Hull (1989) 16 NSWLR 385 was approved as appropriately applying to the word 'instituted' in 3(1)(a) of the Costs in Criminal Cases Act 1967. His Honour described the three ways in which criminal proceedings are generally instituted in New South Wales. The third, he described as: "A third method, which can be used whether the offence in question is indictable or summary, involves the issue by a justice of a summons requiring the appearance in court of the person named in the information." 18 This Court's process departs from that provided in the Supreme Court Rules in relation to that Court's summary jurisdiction. There proceedings are commenced by summons seeking an order under s246 of the Criminal Procedure Act (Part 75, Rule 6 of the Supreme Court Rules). Section 246 provides: (1) A prosecutor may apply for an order: (a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or (b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. (2) The application must be in accordance with the rules. (3) The order may be made in the absence of one or both parties. (4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1) (a). (5) An order for the apprehension of a person: (a) must be addressed to all police officers, and (b) may be addressed to any other person specified in the order, and (c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court. (6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant: (a) committing the person to a correctional centre or other place of security, and (b) ordering the person to be brought before a court at the date, time and place specified in the order. 19 The summons and supporting affidavit are served with the order, unless the Court directs their prior service (Rule 9). It is the summons which is the originating process commencing the proceedings (see Part 5, Rule 1 and Rule 7, Part 2). The differences between the two regimes is that in the Supreme Court, the proceedings are commenced by summons and in this Court, by application for order. Neither document is ordinarily served upon the defendant, until the order is made by the Court, although departure from the usual course is also provided for. 20 In Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 the view was taken at [27] to [32], that it was the filing of the summons then provided for under the Rules, which commenced the proceedings. I can see no basis for a departure from that approach under the current procedures. 21 This conclusion is supported by the view taken in McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308 at 311 by Gleeson CJ, who concluded that proceedings in the Supreme Court were commenced by the filing of the summons in the Registry, as the Rules provided. On a similar basis under this Court's Rules, it must be concluded that these proceedings were instituted with the filing of the application for order. 22 It follows that the proceedings were commenced within time. While the defendant formally submitted that McGerty was wrongly decided, it was accepted finally that it and the decisions of the Full Court earlier referred to were binding. In my view they are, in any event, correct, so far as the current statutory scheme is concerned.

Does the order fail to disclose an offence under s10 of the OHS Act? 23 The defendant argued that the breach of s10 alleged against it, failed to apprise the defendant of the 'legal nature of the offence with which the defendant is charged and also the particular act, matter or thing alleged as the foundation of the charge.' The defendant relied upon (WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 131, where it was also said: "Put slightly differently, and applying the test established by Dixon J (following the decision in Smith v Moody ), there needs to be identified the nature of the offence and a specification of the time, place and manner of the defendant's acts and omissions (at 486)."

24 The particular failure was said to be that the offence charged did not allege all of the legal elements of the offence provided in ss10(3) and (4), or the essential factual elements. To the contrary, the affidavit supporting the application for orders attested to the fact that relevant control was exercised by another entity, NAIQ Pty Limited. 25 As the prosecution accepted, there is a distinction drawn between charges which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Provisions such as s11 of the Criminal Procedure Act may save charges which fail to specify essential factual ingredients, but not those which fail to specify essential legal elements. (See Taylor v Environment Protection Agency (2000) 50 NSWLR 48 at [25] and [26].) 26 Whether the order made in this case discloses the necessary legal elements of the s10 offence, depends upon the proper construction of the section in the statutory scheme. 27 Sections 8, 9 and 10 impose duties upon employers; self employed persons; persons who control premises used by people as a place of work and people who control plant or substance used by people at work. Section 12 creates offences. It relevantly provides: 12 Penalty for offence against this Division A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty: ...

28 Section 11 of the Criminal Procedure Act provides: 11 Description of offences

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. 29 It was the defendant's case that the essential legal elements of an offence in respect of the duties imposed by s10 appear in ss10(1) or 10(2), necessarily as understood by the provisions of ss10(3) and (4). Those elements must be specified in the charge and must be proven by the prosecutor at the trial, in order for the offence to be made out. This approach accorded with that of the High Court in Chugg v Pacific Dunlop Limited (1990) 170 CLR 249. 30 It was the prosecutor's case that the essential legal elements of the offence with which the defendant had been charged under ss10(2), all appeared within that section. Section 11 of the Criminal Procedure Act was relied upon. What was contained in ss10(3) and (4), did not form a part of the offence; those matters did not have to be proved by the prosecution, in order to make out the offence; they were matters which a defendant could establish, for example, by way of defence of a charge. 31 Section 10 provides: 10 Duties of controllers of work premises, plant or substances

(1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease). 32 In Chugg, the High Court took the view that the question of practicability, as it appeared in s21 of the Victorian Occupational Health and Safety Act 1985, fell on the prosecution to prove, to the requisite standard as part of the offence alleged. 33 Section 21 relevantly provided: (1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.

(2) Without in any way limiting the generality of sub-section (1), an employer contravenes that sub-section if the employer fails - (a) to provide and maintain plant and systems of work that are so far as is practicable safe and without risks to health.

34 At 257, it was observed that the Act was silent as to onus and '[t]hat is not unusual for the rule as to the onus of proof in a criminal proceeding is clear, namely, that "it is the duty of the prosecution to prove (a defendant's) guilt subject ... to the defence of insanity and subject also to any statutory exception." 35 The High Court concluded in Chugg at 263, that: It is impossible to read into s.21 of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination. 36 In a judgment separate from that of the majority, with whom his Honour agreed, Brennan J also drew attention to the fact that s21 did not impose an absolute obligation on employers, the obligation being qualified by the words 'so far as practicable'. His Honour concluded at 251 that those words 'prescribe the measure of the precautions to be taken; they do not prescribe a qualification of a character different from the elements of the obligation'. At 252, he concluded that to read the words as an exception 'would be to place a forced and unnatural construction on the clause'. 37 In Chugg reference was also made to the approach of the High Court in Vines v Djordjevitch (1955) 91 CLR 512 at 519-20, where it was observed: "There is a technical distinction between a proviso and an exception, which is well understood. All the cases say, that if there be an exception in the enacting clause, it must be negatived: but if there be a separate proviso, it need not" - per Abbott J. in Steel v. Smith (1817) 1 B & Ald 94., at p.99 (106 ER 35, at p 37). The distinction has perhaps come to be applied in a less technical manner, and now depends not so much upon form as upon substantial considerations. In the end, of course, it is a matter of the intention that ought, in the case of a particular enactment, to be ascribed to the legislature and therefore the manner in which the legislature has expressed its will must remain of importance. But whether the form is that of a proviso or of an exception, the intrinsic character of the provision that the proviso makes and its real effect cannot be put out of consideration in determining where the burden of proof lies. When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter. 38 Here, too, the question arises as to whether the provisions of ss10(3) and (4) must be understood as statutory exceptions to the duties imposed by ss10(1) and (2), or whether they form an inherent part of the duties so imposed, breach of which would be an offence under s12. 39 The question is not without difficulty. Its consideration must commence with the question of statutory purpose. As recently discussed by the High Court in Network Ten Pty Ltd v TCN Channel Nine Pty Ltd and Ors (2004) 205 ALR 1 at 4, the relevant precepts of statutory interpretation are: In Newcastle City Council v GIO General Ltd [(1997) 191 CLR 85 at 112. McHugh J observed: "[A] court is permitted to have regard to the words used by the legislature in their legal and historical context and, in appropriate cases, to give them a meaning that will give effect to any purpose of the legislation that can be deduced from that context."

His Honour went on to refer to what had been said in the joint judgment in CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384. There, Brennan CJ, Dawson, Toohey and Gummow JJ said at 408: "It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Instances of general words in a statute being so constrained by their context are numerous. In particular, as McHugh JA pointed out in Isherwood v Butler Pollnow Pty Ltd (1986) 6 NSWLR 363 at 388, if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent." [footnotes omitted] 40 The relevant purpose can be discerned from the structure of the Act, as well as the provisions of s10 itself. 41 In this statutory scheme, certain duties are imposed, in absolute terms. In the case of the duties imposed by ss10(1) and (2), I take the view that the terms of the duty do not appear in those subsections alone, but can only be ascertained from all of the provisions made in the section, in their entirety. 42 Some examples illustrate why that conclusion is unavoidable. Subsection 10(4) can not be read as containing matters for a defendant to raise, as the prosecution submitted. Rather, it explains the meaning of the word 'control', used in s10(1). As Brennan J described it in Chubb, the provisions of s10(4) prescribe the measure of precautions which must be taken by certain people. They include those who only have limited control of premises, plant or substances and those who have obligations to maintain or repair premises, plant or substances under a contract or lease. 43 Furthermore, the absolute duty imposed by s10(1), to ensure that premises are safe and without risk to health, does not fall upon all of those who have such control of premises, for example. The duty in that case only arises when a person has control of premises which are used as a place of work, by those who are not that person's employees (s10(3)(a)). It is only when that duty, as imposed, is breached, that an offence is committed under s12 of the Act. What level of control is sufficient, appears from s10(4)(a). 44 In my view, it follows that it cannot be concluded that what appears in ss10(3) and (4) is to be understood as exceptions or qualifications to general duties imposed by ss10(1) and (2). They are rather essential aspects of the duties themselves, which fall to a prosecutor to demonstrate. Were it to be concluded otherwise, curious consequences would follow. 45 On the prosecution's approach, in the case of an offence committed at a point of access to or exit from a place of work (s10(3)(c)) for example, that aspect of the offence would not be one which the prosecutor would be obliged to raise in the charge, or prove at trial, as a legal element of the offence, or perhaps even as a factual ingredient. This would follow, even though the means of access to, or exit from, a place of work is neither encompassed in the phrase 'place of work', or the word 'premises', which appear in s10(1). These are both defined terms. If there were an issue as to whether a risk to safety had arisen at, or beyond a point of access to or egress from a place of work in a particular case, the issue would be one for the defendant to raise in the proceedings. 46 There is obvious difficulty with such an approach. The issue which a defendant would be so raising, would concern whether, in the circumstances, the defendant had any relevant duty under the Act at all. If the risk in question had arisen beyond the point of access to or exit from the place of work, there could have been no offence committed. Nevertheless, on the prosecutor's approach, this would not be a matter in respect of which it had any onus at all. The onus would fall entirely on the defendant, to establish that it had no duty in the particular circumstances and had therefore committed no offence. I am unable to conclude that this reflects a proper construction of the statutory scheme, as it would involve an obvious reversal of the usual criminal onus. 47 It would also be contrary to the approach adopted in the Act in the defences established by s28. Those defences impose an onus on the defendant which only arises, if the prosecution has established the breach alleged (see ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997 at p8)). 48 A comparison between s10 and s17 of the Occupational Health and Safety Act 1983, its successor, also lends support to this conclusion. Section 17 provided: 17 Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to: (a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b), that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends. (3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not). 49 I am unable to conclude from the way in which the section has been re-arranged in the OHS Act, that there was a legislative intent to remove from the prosecution the obligation to prove as legal elements of the offences provided, the matters contained in the former s17, which now appear in ss10(3) and (4). 50 So seen, it follows that a charge brought in respect of an alleged breach of s10 must specify what duty the defendant is alleged to have breached. The prosecution must prove all legal elements of the offence so specified, including those elements which flow from the provisions of ss10(3) or (4). 51 In this case, the charge does not specify that the defendant is alleged to have controlled the plant in question in the course of a trade, business or undertaking (s10(3)). That is an essential legal element of the offence which must be proven by the prosecutor. The prosecutor accepted, correctly as I have noted, that a failure to specify such a legal element in the charge is not curable.

Did the order breach ss30 and 31 of the OHS Act? 52 These sections provide: 30 Alternative verdicts If in proceedings against a person for an offence against a provision of section 8 or 9 the court is not satisfied that the person contravened that provision but is satisfied that the act or omission concerned constituted a contravention of another provision of section 8 or 9, the court may convict the person of an offence against that other provision. 31 Multiple contraventions of general duties under Division 1 (1) More than one contravention of a provision of Division 1 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 provisions 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 provision that is charged as a single offence. 53 The offence charge provided: ROCKDALE BEEF PTY LIMITED (ACN 003 789 991) , ("the defendant"), a company whose registered office is located at Suite 702, St Martins Tower, 31 Market Street, Sydney in the State of New South Wales 1. being an employer, on 27 October 2001, at Regulator Road Yanco, in the State of New South Wales, failed to ensure that people other than its employees, in particular Christopher Poole, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work, contrary to Section 8(2) of the Occupational Health and Safety Act 2000 .

Particulars: (a) The defendant failed to provide or maintain systems of work that were safe and without risks to health in relation to the operation of a Danaflex Bagging Machine, Cryovac machine and associated drag chain conveyor;

(b) The defendant failed to provide to Christopher Poole such information, instruction, training and supervision as was necessary to ensure his health and safety at work;

(c) The defendant failed to ensure that plant, to wit a drag chain conveyor, provided for the use of Christopher Poole at work, was safe and without risk to health when properly used, in that it was not adequately guarded. 2. AND IN THE ALTERNATIVE , that ROCKDALE BEEF PTY LIMITED (ACN 003 789 991) ("the defendant"), a company whose registered office is located at Suite 702, St Martins Tower, 31 Market Street, Sydney in the State of New South Wales, on 27 October 2001, at Regulator Road Yanco, in the State of New South Wales, failed to ensure that plant used by people at work over which it had control was safe and without risks to health when properly used contrary to section 10(2) of the Occupational Health & Safety Act 2000 (NSW). Particulars (a) The defendant failed to ensure that a drag chain conveyor used by Christopher Poole at work was adequately guarded. As a result of the defendant's failures Christopher Poole was placed at risk of injury while at work. 54 It was argued for the defendant that offences under ss8 and 10 could not be found in the alternative, as was sought, having regard to the express provisions of s30. Further, the two contraventions of the OHS Act, one under s8 and the other under s10, could not be charged as a single offence, given the provisions of s31(2) and because they did not, in any event, arise out of the same factual circumstance. 55 The prosecutor submitted that the order made was consistent with the statutory scheme, the common law, which permitted offences to be pressed in the alternative and with s23 of the Criminal Procedure Act, which provides: 23 Indictment may contain up to 3 similar counts (1) Up to 3 counts may be inserted in the same indictment, against the same person, for distinct offences of the same kind committed against the same person. (2) This section does not apply if more than 6 months have elapsed between the first and last of the offences. (3) Nothing in this section affects the right of the Crown to insert alternative counts in any indictment. 56 I am satisfied that the defendant's submission in relation to ss30 and 31 must be accepted. The two offences in question cannot be advanced in the one order, even as alternatives, consistently with the statutory scheme. 57 The factual circumstances out of which all of the offences charged are alleged to have arisen, can be gleaned from the affidavit filed by the prosecuting Inspector, in support of the application for order. They included that on 27 October 2001, Mr Poole was injured when his arm was caught in the nip point of a machine which he was operating in the bone room of the defendant's abattoir. The machine was unguarded. This was the first occasion upon which Mr Poole performed the work in question. No safety induction or other training had been conducted by the defendant. It provided no documents to workers using the plant, but relied on another entity to do so. The operation of the bone room was under the control of another company at the time of the accident. The defendant employed a number of employees. Mr Poole and other workers necessary for the bone room to be operated, were 'sourced' by the company operating the bone room from a third corporation. 58 While s31(1) permits more than one contravention of 'a provision' of Division 1 arising out of the same factual circumstances, to be charged as a single offence, it does not authorise contraventions of two or more of those provisions to be charged in the one offence. Here, the factual particulars provided in relation to the s8 charge, could have been charged as separate offences, or as a single offence, consistently with s31(1). The offence under s10, however, may not be advanced as part of the one offence, given the provisions of s31(2). This is confirmed by s30, which deals with the circumstances in which alternative convictions may result in proceedings brought under the OHS Act. This is limited to offences brought under ss8 and 9 and does not extend to s10. Neither the provisions of the common law, nor general provisions such as s23 of the Criminal Procedure Act, can be called in aid to avoid the operation of the express provisions made by the OHS Act as to these matters. 59 As to the abuse of process argument developed by the defendant, I am unable to conclude that it was made out. The s8 offence is concerned with an employer and its obligations in respect of non-employees. The s10 offence is concerned with a company which has control of plant used by people at work. Conceptually, it is readily apparent that an employer might have control of such plant, which is used by non-employees. In this case, both offences allege that the plant was unsafe because it was unguarded. I can see no difference in the factual circumstances out of which this aspect of the alleged offences are said to have emerged. 60 It is also alleged in the s8 charge that the defendant failed to instruct, train and supervise the non-employee in the operation of a machine, which is in any event, inherently unsafe. I am unable to accept that this can lead to the conclusion that the two offences charged have not emerged out of the same factual circumstances. The charge so framed does not, it seems to me, give rise to the necessary implication that such instruction, training or supervision was only relevant or required in the event the plant was safe.

Must the entire charge be dismissed? 61 The defendant conceded that the essential elements of the s8 offence had been provided. It was, nevertheless, argued that because the s10 aspect of the order was bad, the entire charge must be dismissed. I am unable to accept that submission. 62 No authority could be found to support the submission. It would not appear to be consistent with the statutory scheme, with the underlying purpose of the OHS Act and with the requirements of justice. The defendant does not complain that it has not been provided with information necessary for the s8 charge to move forward. It has the necessary information to permit it to defend the offence so charged. 63 If the question is approached from the point of view of duplicity - namely, the order improperly charges the defendant with two separate offences - the proper result is to give the prosecution an election. That is not available here, given the conclusion which I have otherwise reached about the s10 charge. 64 I also note that while the defendant sought no particulars of any of the charges, it did seek to reach agreement with the prosecutor as to a statement of facts. No agreement was reached and it was argued that the response provided by the prosecutor demonstrated an abuse of process in the institution and pursuit of the charges. I am unable to come to that conclusion. There were, it appears, various disagreements as to whether particular factual matters advanced by the defendant were relevant to the charges; whether they were supported by material relied upon by the defendant, or whether they were within the prosecutor's knowledge. 65 It appears to me that the Court must be slow to reach the conclusion invited by the defendant on material such as that relied upon, at the stage at which these matters were argued. I am not satisfied that this aspect of the case was made out. 66 It follows that the prosecution must be permitted to proceed with the s8 offence as charged. Orders

67 These are the reasons why I ordered that the offence charged under s10 be dismissed and that the offence under s8 proceed to hearing.

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