Inspector Singh v ABB Australia Pty Limited

Inspector Singh v ABB Australia Pty Limited - [2006] NSWIRComm 68 - NSWIRComm 1998 case summary — Zoe

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1 This matter concerns a reference to the Full Bench pursuant to s 196 of the Industrial Relations Act 1996 and s 5AE of the Criminal Appeal Act 1912. 2 The reference was made in proceedings instituted by Inspector David Singh of the WorkCover Authority of New South Wales ("the Prosecutor") against ABB Australia Pty Limited ("the Defendant"), in which it was alleged in the application for an order made pursuant to s 246 of the Criminal Procedure Act 1986, as applied to this jurisdiction by s 168 of the Industrial Relations Act 1996, that the Defendant had contravened s 8(2) of the Occupational Health and Safety Act 2000, or in the alternative, had contravened s 10(1) of the Occupational Health and Safety Act 2000. On 10 January 2005, Haylen J issued an Order to the Defendant to "answer to the said offence charged" in the proceedings. 3 The proceedings arose from an accident which occurred on 14 January 2003 when Mr Stephen McCormack, an Environmental Engineer, was electrocuted whilst carrying out an inspection of an overhead crane at premises controlled and occupied by the Defendant. 4 The particulars of both charges, which were identical, were in the following terms: 1 Failed to adequately restrict access to: 1.1 dangerous areas of the premises; 1.2 the overhead cranes at the premises as being the means of approaching within the vicinity of live electrical wires at the premises. 2 Failed to provide adequate information and instruction in relation to: 2.1 overhead cranes; 2.2 work at heights; and 2.3 live electrical wires; so as to enable environmental audit work to be undertaken safely at the premises. 5 On 3 March 2005, the Defendant filed a Notice of Motion seeking an order that the originating process, constituted by the Application for Order and the Order made on 10 January 2005, be set aside or permanently stayed on the basis that the prosecution was in breach of s 31(2) of the Occupational Health and Safety Act 2000. 6 The matter was listed before Haylen J who, after hearing the parties on 19 August 2005, referred the following three questions to the Full Bench of the Court for determination:

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(6) The prosecutor must elect, and identify the charge on which it seeks to rely: Johnson v Miller (1937) 59 CLR 407; Stanton v Abernathy (1990) 19 NSWLR 656. If the Prosecutor is given the opportunity to elect which charge it wishes to pursue and refuses to do so, then the proceedings ought to be permanently stayed or dismissed as an abuse of process: Stanton v Abernathy per Gleeson CJ at 671; Ex Parte Grahame v Dowling (1968) 88 WN (Pt 1) (NSW) 270. 18 Mr B Hodgkinson made a number of additional oral submissions. First, whilst there is a limited capacity in the common law to charge in the alternative, for instance in the case of murder and manslaughter charges, there is no common law principle that, in all criminal jurisdictions, there is a capacity to charge in the alternative. It was submitted that the decision in Maharaj is of little or no assistance in the present matter, as it dealt with pleadings on an indictment, not summary proceedings within the meaning of s 6 of the Criminal Procedure Act. 19 It was further submitted that there is no acceptable custom or practice in this Court of charging offences in the alternative under the Occupational Health and Safety Act 2000 or its predecessor. 20 Thirdly, it was submitted for the Defendant that the statutory scheme does not operate as the Prosecutor contended, as it is only Part 5 of Chapter 4 of the Criminal Procedure Act 1986, not the whole of that Act, which applies by virtue of s 168 of the Industrial Relations Act 1996. The application of the Criminal Procedure Act in this jurisdiction is established by s 170 of that Act, which provides firstly that Chapter 4 applies in respect of proceedings for summary offences (s 170(1)), and secondly, that Part 5 of Chapter 4 applies to proceedings before the Industrial Court (s 170(3)(b)). 21 The parties agreed that questions 2 and 3 should both be answered in the affirmative, should it be appropriate to provide answers to those questions. 22 In relation to question 2, the Prosecutor submitted, and the Defendant agreed, that if the Court finds that there is duplicity or unfairness in the charging of alternative counts, the Court should ask the Prosecutor to elect the particular offence he wishes to proceed with: Johnston v Miller; Stanton v Abernathy at 671. 23 In relation to question 3, the Prosecutor submitted that if a Prosecutor does not have a right to elect, the Court must have a discretion to afford the Prosecutor an opportunity to elect. This is consistent with the observations by Gleeson CJ in Stanton v Abernathy that where the charging instrument alleges more than one offence it is not incurably defective. There is no prejudice to the defendant at this stage of the proceedings to allow the Prosecutor to elect. The Defendant agreed that, if no right to elect exists, the Court has a discretion to afford the Prosecutor an opportunity to elect upon which offence to proceed.

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CONSIDERATION 24 We are satisfied that the Order is not defective. That being the case, we are not required to answer questions 2 or 3, although we note the concession of the parties in that regard. 25 In finding that the Order is valid in its present form, we have considered the following three questions: first, does s 31 of the Occupational Health and Safety Act 2000 preclude charges being laid in the alternative; secondly, is the laying of alternative charges in these proceedings permitted by the Criminal Procedure Act 1996; and thirdly, is there any common law basis for construing the statutory scheme in a manner that restricts the ability of a prosecutor to lay charges in the alternative? We will address each of these questions in turn. Statutory Scheme - Occupational Health and Safety Act 2000 26 We are satisfied that there is nothing in the Occupational Health and Safety Act 2000, in particular in ss 30 or 31, which precludes the charging of offences in the alternative. 27 The predecessor to s 31, s 49A of the Occupational Health and Safety Act 1983, was enacted to deal with the issue of duplicity which was considered in Boral Gas v Magill. Section 31 of the Occupational Health and Safety Act 2000 is directed to the same issue. In our view, the meaning and intent of 31(2) is clear: contraventions of more than one provision (for instance, a contravention of s 8 and a contravention of s 10) may not be charged as a single offence. The Prosecutor in the present matter has not included multiple contraventions in a single offence. The Application for Order clearly identifies separate offences, albeit charged in the alternative, both of which arise out of the same factual circumstances. 28 Section 30 is not directly relevant to the issue of whether a prosecution may plead charges in the alternative, and does not operate to limit in any way the manner in which offences are charged. The section deals solely with alternative verdicts, not alternative charges. 29 We note that, in Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163, Schmidt J considered a motion to dismiss an Order issued under s 246 of the Criminal Procedure Act 1986, as applied by s 168 of the Industrial Relations Act 1996 for reasons which included that the Order was issued inconsistently with the provisions of ss 30 and 31 of the Occupational Health and Safety Act 2000. In that matter, the defendant was charged with an offence under s 8(2), and in the alternative, under s 10(2) of the Occupational Health and Safety Act 2000. Unlike the present matter, the particulars of the charges differed in Rockdale Beef. Her Honour held: [54] It was argued for the defendant that offences under ss 8 and 10 could not be found in the alternative, as was sought, having regard to the express provisions of s 30. Further, the two contraventions of the OHS Act, one under s 8 and the other under s 10, could not be charged as a single offence, given the provisions of s 31(2) and because they did not, in any event, arise out of the same factual circumstance.

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[58] While s 31(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 s 8 charge, could have been charged as separate offences, or as a single offence, consistently with s 31(1). The offence under s 10, however, may not be advanced as part of the one offence, given the provisions of s 31(2). This is confirmed by s 30, 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 ss 8 and 9 and does not extend to s 10. Neither the provisions of the common law, nor general provisions such as s 23 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. 30 We do not agree with her Honour's conclusions as to the operation of the statutory scheme. As earlier stated, we are satisfied that the ordinary meaning conveyed by the text of s 31 permits the laying of alternative charges. There is no prohibition in s 31, either express or implied, against laying charges against a defendant in the alternative, as was found by Schmidt J. The fact that a defendant could be charged with the two offences separately does not preclude the offences being charged as alternatives in a single prosecution. 31 As earlier stated, s 30 is not directly relevant to the issue of whether alternative charges may be laid, and certainly does not limit the operation of s 31 in the manner suggested by Schmidt J. 32 Further, there are compelling practical and policy reasons why the Prosecutor should be entitled to lay alternative charges. We agree with the Prosecutor that there is a public interest in avoiding a multiplicity of charges. 33 We do not consider that there is any duplicity, unfairness or prejudice to the Defendant in allowing the matter to proceed on the basis of the respective offences against ss 8 and 10 being charged in the alternative. Operation of the Criminal Procedure Act 34 We also agree with the Prosecutor that the Criminal Procedure Act 1986 permits the charging of alternative offences in an order pursuant to s 246 of that Act. 35 There was no dispute that the Industrial Court exercises summary jurisdiction in respect of prosecutions for occupational health and safety offences pursuant to s 168 of the Industrial Relations Act and, by virtue of that section, in accordance with Part 5 of Chapter 4 of the Criminal Procedure Act. However, the Defendant rejected the Prosecutor's contention that Part 2 of Chapter 2 of the Criminal Procedure Act 1986 also applies to such proceedings, and that the reference to "the offence charged in the order" in s 246 of the Criminal Procedure Act 1986 could be interpreted to mean "the offences charged in the order". 36 The application of Part 2 of Chapter 2 of the Criminal Procedure Act is set out in s 15 of that statute, which is in the following terms: 15 Application of Part (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. (2) In this Part: indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced. 37 Whilst s 168 of the Industrial Relations Act refers only to the application of Part 5 of Chapter 4 of the Criminal Procedure Act, there is nothing in s 168 which expressly excludes, or limits in any way, the operation of s 15(1) of the Criminal Procedure Act 1986 and therefore the application of Part 2 of Chapter 2 of that statute. To limit the application of the Criminal Procedure Act in these proceedings to only Part 5 of Chapter 4 would be an overly narrow interpretation of s 168 of the Industrial Relations Act. 38 We agree with Mr Agius that: (a) the definition of "indictment" in s 15(2) includes an application for an order pursuant to s 246 of the Criminal Procedure Act 1986, being "any other process or document by which criminal proceedings are commenced"; (b) s 23 of the Criminal Procedure Act 1986 explicitly recognises the right of the Crown to include alternative counts in an indictment (which, by virtue of s 15(2), includes an order pursuant to s 246); (c) the reference to "an offence" and "the offence" in the singular in s 246 does not preclude charges being laid in the alternative: s 8(b) of the Interpretation Act 1987 states that "a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form". The Common Law 39 The view we have reached is confirmed when the situation at common law is considered, which plainly permits alternative charges being laid in criminal matters. 40 The Court of Criminal Appeal in R v Thomson; R v Dann (2002) 134 A Crim R 252 considered the question of whether the Crown may proffer an indictment containing counts that are contradictory. In finding that it may do so, Santow JA, with whom Hidden and Adams JJ agreed, referred to R v Healy (1995) 15 WAR 104 and R v Collins (1996) 1 QD R 631. Those cases each follow the decision of the House of Lords in R v Bellman [1989] 1 AC 836, in which Lord Griffiths stated (at 851) that "... there is no rule of law that prevents the inclusion in one indictment of mutually exclusive counts and that if, at the end of the prosecution case, the evidence establishes a prima facie case on both counts, the matter should be left to the jury to determine the question of guilt, and the prosecution should not be put to their election upon which count to proceed." 41 Santow JA concluded in R v Thomson; R v Dann: Bellman is persuasive authority for the proposition, followed in Australia, that there is no rule of law that prevents the inclusion in one indictment of mutually exclusive counts, so long as:

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(iii) a direction can be made which sufficiently removes the risk that the jury will fail to understand the implications of an acquittal on the first count for the second count. 42 Reference was also made by the Court of Criminal Appeal in that case to Maharaj as a case which "clearly allowed of the possibility of contradictory counts co-existing, citing Bellman, though not in the circumstances of that case". Unlike Healy or Collins, the charges in Maharaj were merely alternative, not contradictory. The defendant was charged firstly, under s 178BA of the Crimes Act 1900, with dishonestly obtaining, by deception, a valuable thing. The defendant was also charged with fraudulent misappropriation under s 178A of the Crimes Act 1900, which was expressed as an alternative to the first charge. Whilst the evidence may have proven all of the allegations made in each of the charges, the Crown sought a conviction on either one or other charge. In dismissing the appeal in Maharaj, Gleeson CJ and Beazley JA held that the presence of alternative counts in the indictment was not fatal, stating (at 11): There was no reason why the Crown could not charge the less serious, but more straightforward offence as the primary charge, and lay the second charge in the alternative. It was noted earlier that it may well have been open to the Crown to press for a conviction on both counts, but that was not the way the case was conducted or presented. and later (at 12): The appellant was not relevantly prejudiced by the manner in which the indictment was framed, or in which the case against him was presented. 43 We note the Defendant's submission that no authority has been presented to demonstrate a common law principle that there is a capacity to charge in the alternative in all criminal jurisdictions. However, there is equally no authority specifically precluding such a capacity, or indeed that there is a limited capacity to do so as suggested by the Defendant. 44 It is a well established prosecutorial practice to include multiple charges in an indictment so that if the evidence in a particular matter fails to establish all of the elements of the more or most serious charge, the indictment contains alternate charges for which less, or possibly different, elements must be proven in order to obtain a conviction. The particular example raised by the Defendant of murder and manslaughter charges does not demonstrate the limited capacity in the common law for charges to be laid in the alternative; there is a statutory foundation for automatically reducing a murder charge to manslaughter. In any event, we see no basis at common law for restricting the practice of laying alternative charges to a limited class of indictable offences. 45 Given that the Occupational Health and Safety Act does not expressly prohibit charging in the alternative, and that such an approach is consistent with both the Criminal Procedure Act and the common law, we see no reasonable basis on which we should adopt a restrictive approach which is inconsistent with well established prosecutorial practices. The Defendant's contentions should be rejected. ORDERS 46 We make the following orders:

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