Inspector Steven Nikolovski v Alex Avi Lankry

Industrial Relations Commission (NSW)|2010-11-09|Before: Backman J

Judgment 1The defendant, Alex Avi Lankry, has applied to the Court to withdraw his pleas of guilty to two charges brought under s 8(2) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000) and s 10(1) by virtue of s 26(1) of that Act. A Notice of Motion sets out the following grounds and reasons: (1)The prosecutor alleges contraventions of the Act by Alex Lankry [the defendant] as a person concerned in the management of Sydney Metro Projects and as a director of Domain Group Services. (2)The Court may, in the exercise of discretion and in the interests of justice grant leave to a person to withdraw a plea of guilty at any time before sentence is passed. (3)It is in the interests of justice for the defendant to be allowed to withdraw his plea. The summons against the defendant does not disclose an offence. As such, the defendant should not and could not have pleaded guilty. Particulars (i)The prosecutor has not identified the risk and the particular measures to prevent that risk eventuating. (ii)To the extent that a risk is identified; it relates to systems of work and the working environment at the premises rather than the premises itself. (iii)So far as the prosecutor alleges a breach by the personal defendant relating to actions by Domain Group Services; the prosecutor has failed to prove control of the premises by Domain Group Services. (4)To the extent that the Summons does disclose a defence, the defendant is entitled to rely upon the defence set out in s 26 of the Act being that he used all due diligence to prevent the contravention by the corporation. Particulars (i)Shane Brandtman of Mitchell Brandtman (Quantity Surveyor) specifically asked the site foreman Tony Constantinos for the purpose of making progress payments) about the wall being filled with concrete and was told that the wall had been so filled. (ii)This discussion occurred prior to the collapse of the wall. (iii)The defendant was entitled to rely upon the statement made by the site foreman. 2The Notice of Motion appears to refer only to IRC 1848 of 2008 (which is the s 8(2)/s 26(1) charge), however, in oral submissions, the defendant, who was represented by counsel, made clear that his application to withdraw his pleas of guilty related to both charges. The Court therefore has proceeded on the basis that there are discrete applications to withdraw pleas of guilty to both charges. 3With regard to Ground 3(iii), whether this eventually occurs (that is, whether the prosecutor fails to prove control of the premises by the corporate defendant) is of no apparent relevance to the present applications and no submissions have been made on this ground by the defendant. With regard to Ground 4, this issue would only arise in the event there was a contested hearing and the prosecutor has discharged his onus to prove both charges to the requisite standard. There is, it should be noted, no requirement upon the prosecutor to allege in a charge brought under either s 8(2)/s 26(1) or s 10(1)/s 26(1), the acts or omissions of directors, or persons concerned in the management of the corporate defendant: see, Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 at [87], [95] to [97]. These matters bear no relevance to the present applications to withdraw the pleas of guilty. Accordingly, the Court will not and cannot, give due consideration to Grounds 3(iii) and 4. 4The charge brought under s 8(2) by virtue of s 26(1) alleges that the defendant, being a person concerned in the management of Sydney Metro Projects Pty Limited (the corporation), is taken to have contravened s 8(2) of the OHS Act 2000 in that the corporation, "being an employer on 31 October 2006, at 295-299 Pennant Hills Road, Thornleigh ("the premises") failed to ensure that persons, who were not its employees, in particular, Warren Craig Bowden, were not exposed to risks to their health or safety arising from the conduct of the corporation's undertaking while they were at the corporation's place of work ...". Particulars follow from this central allegation which are set out in full below: (a) At all material times the defendant was a person concerned in the management of the corporation. (b) The corporation failed to provide and maintain a safe system of work for the construction of re-enforced hollow core masonry block walls on Level 1 of the premises, in that the corporation failed to: (i) have an adequate occupational health and safety management plan in relation to construction work being performed on site; (ii) require sub-contractors to provide Safe Work Method Statements in relation to the task of constructing re-enforced hollow core masonry block walls being performed on site; (iii) require sub-contractors to construct re-enforced hollow core masonry block walls in accordance with engineering plans; (iv) ensure that the re-enforced hollow core masonry block wall was core filled with concrete when the wall was partially completed; (v) prevent the wall being constructed to maximum built height prior to core filling with concrete to reinforce the walls; (c) The corporation failed to ensure that premises controlled by it, namely, the masonry block wall constructed on the southern edge of the concrete slab of level 1 of the site, facing Thornleigh Street, where persons other than its employees worked, were safe and without risk to health, in that the corporation: (i) failed to ensure that adequate measures were put in place to prevent the structural collapse of the re-enforced hollow core masonry block wall that was under construction on Level 1 and in a temporary state of weakness; (ii) failed to ensure that scaffolding was installed along the full length of the southern side of the wall to prevent items being ejected from the site; (iii) failed to ensure that overhead protection was installed on the southern side of the wall to prevent objects being ejected from the premises; (iv) failed to ensure that temporary bracing was provided for the re-enforced hollow core masonry block wall that was under construction on Level 1 as required by Australian Standard 3700-Masonry Structures; (v) failed to ensure that the re-enforced hollow core masonry block wall that was under construction on Level 1 was not constructed to full height without adequate returns, cross walls or core filled to an appropriate height. As a result of the corporation's failures, persons other than employees of the corporation, and in particular Warren Craig Bowden, were placed at risk of serious injury. 5The charge brought under s 10(1) by virtue of s 26(1) alleges that the defendant, being a director of Domain Group Services Pty Limited (the corporation), is taken to have contravened s 10(1) of the OHS Act 2000, in that the corporation, "being a person who had control of premises, not used only by employers of the corporation, on 31 October 2006, 295-299 Pennant Hills Road, Thornleigh ("the premises") failed to ensure that the premises used by people as a place of work, were safe and without risks to their health ...." 6The particulars which follow this central allegation in the charge are set out in full below: (a) At all material times the defendant was a director of the corporation. (b) The corporation failed to ensure that systems of work and the working environment at the premises, in particular the masonry block wall constructed on the southern edge of the concrete slab of level 1 of the premises, facing Thornleigh Street, were safe and without risk to health, in that: (i) it failed to ensure that adequate measures were put in place to prevent the structural collapse of the re-enforced hollow core masonry block wall that was under construction on Level 1 and in a temporary state of weakness; (ii) it failed to ensure that scaffolding was installed along the full length of the southern side of the wall to prevent items being ejected from the site; (iii) it failed to ensure that overhead protection was installed on the southern side of the wall to prevent objects being ejected from the premises; (iv) it failed to ensure that temporary bracing was provided for the re-enforced hollow core masonry block wall that was under construction on Level 1 as required by Australian Standard 3700-Masonry Structures; (v) it failed to ensure that the re-enforced hollow core masonry block wall that was under construction on Level 1 was core filled at an appropriate height and was not constructed to full height without adequate returns, cross walls or core filling. As a result of the corporation's failures persons other than employees of the defendant using the premises controlled by the corporation as a place of work and in particular, Warren Craig Bowden, were placed at risk of serious injury. 7At the premises a two-level construction of commercial premises with two basement levels was being undertaken. Upon completion, the building was to be used as an Officeworks retail outlet. On 31 October 2006, a hollow core re-enforced masonry block wall collapsed onto a funeral parlour which was located next door to the premises. The collapse of the masonry block wall caused considerable damage to the funeral parlour and injured Mr Bowden, an employee of the funeral directors, who was inside the funeral parlour at the time. Mr Bowden sustained soft tissue injuries to his head and neck and suffered concussion. 8The primary basis upon which the defendant seeks to withdraw his pleas relies on the High Court judgment in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 for the contention that each charge fails to disclose an offence. A secondary basis which emerged in the defendant's affidavit in support of the Notice of Motion is that the defendant, who was legally represented at the time formal pleas of guilty were entered on his behalf, did not give instructions to enter those pleas of guilty.

The Kirk point 9According to the defendant, the charges are invalid because they are not properly particularised such that he cannot properly formulate a defence. In relation to the s 10(1) charge it was asserted that there was nothing in the particulars that explained exactly what control the defendant maintained or by what "mechanics" he came to maintain that control. According to the defendant the charge must identify both the risk and the particular measures needed, "to prevent that risk eventuating". In relation to the s 8(2)/s 26(1) charge it was said that the safe systems of work particularised were "pretty particularly pleaded" and that the particular, "have an adequate health and safety management plan" was not "pleaded out". It was also contended that the latter particular fails to allege what, "exactly (the defendant) has done to be responsible". 10The defendant did not direct the Court's attention to any other particulars of the charges. Nor was the Court's attention specifically directed to any authorities, which might have provided support for these contentions. The defendant's counsel, Mr O'Connor, was afforded the opportunity to file written submissions on these matters. To date, no such written submissions have been filed by, or on behalf of the defendant, dealing with the issues. Further submissions filed by the prosecutor, purportedly in reply to written submissions prepared on the defendant's behalf, prompted the Court to set the matters down earlier this year for a directions hearing in order to obtain a copy of the submissions. On that day, there was no appearance by the defendant, or on his behalf. In the circumstances, the defendant has taken no steps to make the submissions available to the Court. Accordingly, the Court is unable to consider them. 11The prosecutor, in contending both charges are valid, relied on the following matters: (a) both charges identify the legal elements of the offences thereby vesting the Court with jurisdiction to hear and prosecute the offences; (b) the Court is entitled to consider the linked documents, that is, the affidavits in support of each charge in having regard to whether the charges have been adequately particularised; (c) the legal elements of both charges having been pleaded, any deficiency in the particulars does not render the charges invalid or the proceedings a nullity.

Consideration of Kirk point 12The jurisdiction of this Court to hear and determine proceedings for offences under the OHS Act 2000 is conferred by s 105(1)(b) OHS Act 2000 and s 168(2) of the Industrial Relations Act 1996 (IR Act): John Holland Pty Ltd v Industrial Court of New South Wales ; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCCA 338 at [16] (John Holland (Court of Appeal)). 13Section 168(2) IR Act provides that Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (CPA) applies to proceedings for an offence taken before the Industrial Court. Section 246 of the CPA falls within Part 5 of Chapter 4. Sub-sections 246(1) and (2) provide: 246 (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. 14The Rules in force at the time the present proceedings were instituted were the Industrial Relations Commission Rules 1996 (the 1996 Rules). Rule 217B of the 1996 Rules required, relevantly: (1) Proceedings before the Commission in Court Session for an offence (other than contempt) must, unless otherwise provided, be commenced by an application for an order under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996). (2) The application must state: (a) the name and address of the person by whom the proceedings are brought (the prosecutor), and (b) the capacity in which the prosecutor is taking the proceedings, and (c) the name and address of the person against whom the proceedings are brought (the defendant), and (d) the Act and the section under which the defendant is alleged to have committed an offence, and (e) the nature of the offence that is alleged. 15The meaning of the words, "the nature of the offence that is alleged" in Rule 217B(2)(e) was the subject of comment by the Full Court in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 at [37] ( John Holland (Full Court)): This may be taken to mean the essential legal elements of the charge: see Johnson v Miller at 486 where Dixon J distinguishes between 'the nature of the offence' (he later refers to it as the 'legal nature of the offence: at 489) and the essential factual ingredients of the 'time, place and manner of the defendant's acts or omissions': see also Rockdale Beef at [109] per Basten JA, who makes the same distinction and see Kirk at [26], ... 16Section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 , referred to in Rule 217B(1) has been replaced by s 246 of the CPA. Section 11 of the CPA governs the requirement with regard to identifying the legal nature of the offence (that is, the legal elements). Section 11 provides: The description of any offences in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law. 17In accordance with the requirement of s 11 of the CPA it is sufficient to describe the nature of an offence by use of the statutory language (here: s 8(2)/s 26(1) and s 10(1)/s 26(1)): see Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [130] per Basten JA. In that passage, his Honour said: ... it has long been sufficient to describe the nature of an offence by use of the statutory language: see s 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell ; Re Buckley (1938) 38 SR (NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b). 18Section 8(2) of the OHS Act 2000 which the corporation, in the charge brought under s 8(2) and s 26(1), is alleged to have contravened, provides that, "An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". Section 26(1) of the OHS Act 2000 provides: 26 (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 19A perusal of the charge brought against the defendant under s 8(2) by virtue of s 26(1) (which has been earlier set out) reveals that the charge clearly follows the words of the statutory language used in s 8(2) and s 26(1). There was no issue raised that the requirements of Rule 217B(2)(a), (b), (c) and (d) has not been complied with. The charge reveals that the requirements of these sub-rules have been met, by reference to the following details: (a) the name and address of the person by whom the proceedings are brought: 'Inspector Steven Nikolovski, of the WorkCover Authority of New South Wales, Level 2, 12 Butler Road, Hurstville'; (b) the capacity in which the prosecutor is taking the proceedings: 'an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter'; (c) the name and address of the person against whom the proceedings are brought: 'Alex Avi Lankry of ... in the State of New South Wales ("the defendant"); (d) the Act and the section under which the defendant is alleged to have committed an offence: 'by virtue of section 26(1) of the Act is taken to have contravened s 8(2) of the Act, ...'. 20What follows from these matters is that Rule 217B has been complied with in relation to the charge brought under s 8(2) by virtue of s 26(1) and therefore the Court has jurisdiction to hear and prosecute the charge. 21A perusal of the s 10(1) by virtue of s 26(1) charge also reveals that the requirements of Rule 217B(2)(a), (b), (c) and (d) have been complied with. Again, no issue was raised to the contrary during the hearing of the defendant's applications. 22Section 10(1) of the OHS Act 2000 provides, relevantly: A person who has control of premises used by people in a place of work must ensure that the premises are safe and without risks to health. 23The charge has been earlier set out. It clearly follows the statutory language of s 10(1). In Rockdale Beef , Basten JA (with whom Mason P agreed) identified error in a charge brought under s 10(1) of the OHS Act 2000 by reason of its failure to allege in accordance with s 10(3)(d), that the conduct in question took place in circumstances where the relevant plant was controlled, "in the course of a trade, business or other undertaking". It was held by Basten JA that this was a failure to allege an essential legal element of the offence. It follows that it must be pleaded in a charge in order to ensure the validity of the charge and confer jurisdiction on the Court in accordance with Rule 217B of the 1996 Rules. In Rockdale Beef , however, the failure to allege the substance of s 10(3)(d) in the charge was described as a complaint, "at the level of technical validity" which did not infringe, "a fundamental issue going to fairness of the prosecution". This was because the charge stated that the plant was, "used by people at work" and it asserted that the plant 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". Further, the identification of the plant as a 'drag chain conveyor' also gave rise to the inference that it was machinery of a kind used in the course of a trade, business or other undertaking": at [125]. 24In Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349, an issue under consideration was whether the failure to expressly state the mental element of an offence under s 178BB of the Crimes Act 1990 in two counts out of eight counts rendered the indictment defective. The remaining six counts did allege the necessary mental element. Spigelman CJ held that the indictment "necessarily implies" the mental element absent from the two counts and, therefore, alleged an offence known to the law: at [33]. In so concluding, his Honour relied on s 16(1)(b) of the CPA which provides: 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: ... (b) for want of an averment of any matter unnecessary to be proved or necessarily implied. 25Section 10(3)(d) of the OHS Act 2000 refers to premises as well as plant, "controlled in the course of a trade, business or other undertaking". The charge presently under consideration alleges that the premises were, "used by people as a place of work". The charge also refers to the construction of a masonry block wall at the premises. These particulars, consistent with the reasons and findings of Basten JA in Rockdale Beef and Spigelman CJ in Doja , facilitate the conclusion that the failure in the charge to allege the conduct the subject of s 10(3)(d) amounts to a failure at the level of technical validity which is amenable to the application of s 16(1)(b) of the CPA. Accordingly, the charge brought under s 10(1) by virtue of s 26(1) is also a valid charge and the Court has jurisdiction to hear and determine it. 26According to the majority judgment in Kirk , a charge under a predecessor provision to s 8(2) of the OHS Act 2000 must plead the acts or omissions of a defendant that created the risk to safety. Kirk did not determine, however, that the acts or omissions of a defendant alleged to cause the risk to safety were legal elements of the offence: John Holland (Full Court) at [67]; Morrison v Chevalley at [55(f)]. It was emphasised in John Holland (Full Court) at [38] that a charge that meets the requirements of s 11 of the CPA does not dispense with the common law rule requiring identification in the charge of the essential factual ingredients of time, place and the manner of the defendant's acts or omissions. 27The failure to plead, or to plead adequately, in a charge the defendant's acts or omissions does not necessitate the conclusion that the charge is invalid. Rather, the defect is curable if a statutory provision exists to cure it: see, for example, John L Pty Ltd v Attorney-General (NSW) (1987)163 CLR 508 at 521-522; Stanton v Abernathy (1990) 19 NSWLR 656 at 667; John Holland (Full Court) at [72] to [74]; Morrison v Chevalley at [55(i)] [56(b) to (d)] [133]. 28There are strong suggestions in the majority judgment in Kirk to similar effect. At [30], for example, the majority said: ..., 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 [38] where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. 29Again, at [74], the majority found that the Court at first instance had no power to convict and sentence Mr Kirk and his company because, "no particular act or omission ... was identified at any point in the proceedings, up to and including the passing of sentence". 30Spigelman CJ in John Holland (Court of Appeal) also recognised that a defective charge, under consideration by a court acting within jurisdiction and prior to the determination of proceedings, was curable by the provision of further particulars. His Honour distinguished the joint judgment in Kirk on the basis that the proceedings had been determined and convictions entered without any further particularisation of the defective charges. As with the proceedings in the Court of Appeal in John Holland , here the challenge to the charges is made at the time of the charge, and therefore, as Spigelman CJ found (at [45]), "the matters left open at [30] of the joint judgment in Kirk ... may arise". 31The question which now arises for consideration is whether the alleged acts or omissions of the defendant in these proceedings have been identified, or adequately identified in the charges. In addressing this question, I propose to consider first the s 10(1)/s 26(1) charge. Before embarking on this exercise it is pertinent to bear in mind two important propositions formulated by the majority in Kirk . These propositions were extracted by Spigelman CJ in John Holland (Court of Appeal) at [32]. They are: "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]. 32I also rely on my observations in Inspector Colin Fraser v Rocco Natoli [2010] NSWIRComm 180 at [12] where I said: The majority in Kirk held (at [15]) that the necessity for a charge to identify the act or omission said to constitute a contravention of s 15 or s 16, "is even more apparent when regard is had to the defences which were available to employers in proceedings for offences against the provisions ...". The majority in Kirk referred, at various parts of the judgment, to the requirement to identify or specify in the charge, the "measure(s) which ... should have been or should be taken" to prevent the risk occurring. The term "measure" (which should have been taken) is used interchangeably in the judgment with the term "relevant act or omission" which gives rise to the risk (see Kirk at [14] and [17], for example). Both concepts are directed towards the same goal, namely, identifying the manner in which, or how, the defendant is said to have failed to ensure the safety of persons, and as a result, exposed them to risks to their safety. By way of a simple illustration, an alleged failure in a charge to guard a machine identifies the alleged omission to guard the machine (which exposes persons using the machine to risk of injury) and equally identifies the measure which should have been taken (to obviate the risk), namely, to guard the machine. Adequate identification in the charge of the relevant act or omission or the measure, according to the majority in Kirk (at [15] to [19]) is necessary so that a defendant charged under either s 8(1) or s 8(2), for example, can raise a defence under s 28 of the 2000 Act.

The charge under s 10(1) by virtue of s 26(1) 33Particular (b) alleges in the preamble that the corporation failed to ensure the systems of work and the working environment (the masonry block wall under construction) at its premises were safe. The preamble identifies the general act or omission of which further sub-particulars are given. These sub-particulars purport to give greater particularity to the general act or omission contained in the preamble. For the purposes of the present exercise, it is convenient to separately examine each of the sub-particulars.

(i) (The corporation) failed to ensure that adequate measures were put in place to prevent the structural collapse of the re-enforced hollow core masonry block wall that was under construction on Level 1 and in a temporary state of weakness 34Sub-particular (b)(i) alleges that what was not done to ensure safety (the omission), and, by implication, what should have been done (the measure not taken) was to put in place "adequate measures" to prevent the structural collapse of the re-enforced hollow core masonry block wall under construction, "and in a temporary state of weakness". What constitutes "adequate measures" has not been further specified. This falls short, in my view, of the requirements set out in Kirk for the necessary degree of specificity and precision of an alleged omission or measure not taken in order that it may be properly identified. Some further particulars should be provided to the defendant to clarify what "adequate measures" it is alleged the corporate defendant did not take.

(ii) (The corporation) failed to ensure that scaffolding was installed along the full length of the southern side of the wall to prevent items being ejected from the site 35The following sub-particular alleges that what was not done, and, by implication, what should have been, was to put in place or "ensure" that scaffolding was installed along the southern side of the wall to prevent items being ejected from the site. This particular clearly identifies the omission and the measure not taken, namely, the installation of scaffolding (to prevent items being ejected from the site).

(iii) (The corporation) failed to ensure that overhead protection was installed on the southern side of the wall to prevent objects being ejected from the premises 36The third sub-particular also identifies the alleged omission, and conversely, the measure not taken, namely, the non-installation of "overhead protection" on the southern side of the wall, although perhaps some further particularisation of what is said to constitute "overhead protection" could be provided.

(iv) (The corporation) failed to ensure that temporary bracing was provided for the re-enforced hollow core masonry block wall that was under construction on Level 1 as required by Australian Standard 3700-Masonry Structures 37The fourth sub-particular also identifies the alleged omission or measure not taken, namely, the non-provision of temporary bracing for the masonry block.

(v) (The corporation) failed to ensure that the re-enforced hollow core masonry block wall that was under construction on Level 1 was core filled at an appropriate height and was not constructed to full height without adequate returns, cross walls or core filling 38The fifth sub-particular also identifies the alleged omission or measure not taken, namely, the omission to ensure that the masonry block wall was core-filled and had adequate returns, cross walls or core filling before being constructed to full height.

The risk 39The charge also alleges that as a result of the corporation's failures, non-employees, "in particular, Warren Craig Bowden, were placed at risk of serious injury". This risk is not the subject of further clarification in the charge. However, the measures which are specified (except for sub-particular (i)) in the charge identify the relevant risk. According to Kirk , specification of the measure will serve, in many instances, to identify the risk: at [14]. The present charge illustrates this. 40Sub-particular (i) falls into a different category because it specifies the measure only in general terms ("adequate measures"). Nevertheless, it makes explicit reference to the risk, namely the structural collapse of the wall which was in a temporary state of weakness. Sub-particulars (iv) and (v) comprehend in terms a collapse of the wall if certain measures, namely, temporary bracing, no adequate returns, cross walls or core filling (to an appropriate height) are not taken. An obvious risk arises to any person within proximity of the wall by reason of the failure to implement the measures specified. Sub-particulars (ii) and (iii) comprehend that the non-installation of scaffolding or overhead protection on the southern side of the wall rendered the wall unsafe (and a risk to persons within its proximity) because of the risk of the ejection of items or objects from the wall.

The allegation of control of the premises 41The defendant contended in oral submissions that the charge fails to particularise how the corporation is alleged to have had and maintained control of the premises. I agree. Further particulars need to be provided to the defendant informing him of how the corporation is alleged to have had control of the proceedings.

The charge under s 8(2) by virtue of s 26(1) 42Sub-particular (b) of the s 8(2)/s 26(1) charge alleges in the preamble that the corporation failed to provide and maintain a safe system of work for the construction of the re-enforced hollow core masonry block walls. The preamble identifies the alleged act or omission in general terms. Sub-particulars then follow which purport to provide greater clarification or specification of the general act or omission.

(i) (The corporation failed to) have an adequate occupational health and safety management plan in relation to construction working being performed on site 43Sub-particular (i) alleges that what was not done (the omission) and what should have been done (the measure not taken) was to have in place an adequate occupational health and safety management plan for the construction work being performed on site. What is an "adequate" plan is not specified in the charge. Some further particulars specifying what is an "adequate" plan should remedy this deficiency.

(ii) (The corporation failed to) require sub-contractors to provide Safe Work Method Statements in relation to the task of constructing re-enforced hollow core masonry block walls being performed on site 44The measure not taken set out in the next sub-particular is that the corporation did not require sub-contractors to provide safe work method statements dealing with the task of construction of the walls at the site.

(iii) (The corporation failed to) require sub-contractors to construct re-enforced hollow core masonry block walls in accordance with engineering plans 45Sub-particular (iii) alleges that the measure not taken (to ensure the safe construction of the wall) is that the corporation did not require sub-contractors to construct the walls in accordance with engineering plans.

(iv) (The corporation failed to) ensure that the re-enforced hollow core masonry block wall was core filled with concrete when the wall was partially completed 46Sub-particular (iv) alleges that the measure not taken (to ensure the safe construction of the wall) was that the corporation did not ensure that the wall was core-filled with concrete when partially completed.

(v) (The corporation failed to) prevent the wall being constructed to maximum built height prior to core filling with concrete to reinforce the walls 47Sub-particular (v) alleges that the measure not taken, referable to the general omission alleged in the preamble, was that the corporation did not prevent the wall being constructed to its maximum height prior to core-filling it with concrete to re-enforce the walls. This sub-particular is a variation of the same allegation the subject of sub-particular (iv).

Particular (c) of the s 8(2) by virtue of s 26(1) charge 48Particular (c) alleges that the corporation failed to ensure that the construction of the wall under its control was safe and without risk to the health of non-employees working in the vicinity. This general omission to ensure the safe construction of the wall in an area proximate to where non-employees work is the subject of further sub-particulars which seek to provide further clarification. They are identical to the sub-particulars of particular (b) in the s 10(1)/s 26(1) charge. Accordingly, the findings I have made in relation to the sub-particulars of that charge I adopt in my consideration of the s 8(2)/s 26(1) charge. Moreover, both preambles allege a general failure on the part of the corporation to ensure that the premises were safe and without risk to health. The premises are expressly referred to in the s 8(2)/s 26(1) charge as the masonry block wall, and by necessary implication in the s 10(1)/s 26(1) charge (see, for example, sub-particular (b)(i) of the latter charge).

The risk 49Particular (c), for the same reasons expressed with regard to particular (b) of the s 10(1)/s 26(1) charge, identifies the risk by reference to the measures specified in sub-particulars (c)(ii) to (v) and expressly identifies the risk in sub-particular (c)(i), namely, the risk of structural collapse of the wall, which in turn allegedly gave rise to a risk of injury to non-employees working in the vicinity of the wall. Both charges allege, generally, that the corporation's failures gave rise to a risk of serious injury to "persons other than employees" of the corporation, "in particular, Warren Craig Bowden". Apart from nominating Mr Bowden as a person alleged to be at risk neither charge nominates any other non-employees who were exposed to the risk. If, therefore, the prosecutor intends to rely on other named non-employees who were at risk then particulars of those persons should be supplied to the defendant. 50Particular (b) of the s 8(2)/s 26(1) does not expressly refer to the risk, although, in combination with particular (c), it is implicit that the risk of injury arose from the risk of the structural collapse of the wall.

Allegation of control 51The charge does not particularise how it is said that the corporation had control of the construction of the wall. The defendant is entitled to further particulars of this allegation.

Conclusions with regard to sufficiency of particulars in the charges 52Both charges are valid charges. The legal elements are present in both charges. They allege with sufficient particularity the measures relied upon, with the exceptions of particular (b)(i) of the s 10(1)/s 26(1) charge and particular (c)(i) of the s 8(2)/s 26(1) charge. At this stage of the proceedings, the defects are curable: John Holland (Court of Appeal) at [41] to [45]. With regard to particular (b) of the s 8(2)/s 26(1) charge some further particularisation of the risk to safety should perhaps be provided. Further information should be supplied to the defendant with regard to those non-employees alleged to be placed at risk, if any, in addition to Mr Bowden. What constitutes an "adequate" plan alleged in sub-particular (b)(i) of the s 8(2)/s 26(1) charge should also be the subject of further particulars. Further particularisation of the allegation of the corporation's control in both charges should also be provided.

The role of the supporting affidavit 53The prosecutor in written submissions sought to rely on the affidavits in support of the charges as supplementing the particulars with regard to the identification of the measures and of the risk. In my view, however, the affidavit in support does not fulfil this role. Kirk did not deal with the role of the supporting affidavit and the majority judgment contains clear statements that the act or omission relied upon must be pleaded in the charge (referred to as the "statement of offence" or "statement of the offence") either expressly or by necessary implication. If a legal element is expressly absent from the charge and cannot be implied, then, if filed outside the limitations period, it cannot be saved by any material in the supporting affidavit. Moreover, proceedings for offences under the OHS Act 2000 are validly commenced in accordance with the relevant rules (formerly rule 217B of the 1996 Rules now rule 16.1 of the Industrial Relations Commission (the 2009 Rules)). Under rule 217B(3)(a), the rule in force at the time the charges were filed, it was not mandatory for the prosecutor to file with the charge an affidavit in support. The successor provision, rule 16.1(2)(a), is in identical terms. In Rockdale Beef , Basten JA made a number of observations about using the affidavit in support of a charge as a permissible source of further particulars. Those observations, however, must be seen in the context of findings by his Honour that the charge which failed to refer expressly to a legal element could nevertheless be implied by reference to other particulars contained in the charge: see Rockdale Beef at [13]; see also Doja at [27] and [28] per Spigelman CJ. 54It is not necessary to explore this matter further. I have found, for the reasons expressed, that the charges are valid and accordingly, the Court has jurisdiction to hear and determine the proceedings.

Whether the defendant gave instructions to enter pleas of guilty 55The remaining ground relied upon by the defendant in support of his application to withdraw the pleas of guilty is whether the defendant instructed his legal representative to enter the pleas of guilty on his behalf. This ground was absent from the Notice of Motion and made its first appearance in the defendant's affidavit, filed on 15 April 2010 in support of the Motion. 56The defendant asserted, in essence, that he gave instructions to his solicitor, John Patrick Gould, to enter pleas of guilty to charges brought against Domain Group Services Pty Ltd and Sydney Metro Projects Pty Ltd. At the time of the offences the defendant was a director of Domain Group Services and a person concerned in the management of Sydney Metro Projects. The defendant maintains that at no time did he instruct Mr Gould to enter pleas of guilty to the charges brought against him. 57Pleas of guilty to both charges were formally entered by Mr Gould at Court on 28 April 2009. In his affidavit the defendant referred to events which he said took place on that day, and following: 34. I only recall attending the IRC on two occasions and that Mr Gould represented me on the other occasion. Prior to that appearance I believe must be the 28 April 2009, I had a conference with Mr Gould and he said words to the effect of, "Alex I understand your pleading guilty on behalf of the companies?" I said words to the effect of, "Yeh that's right, they are insolvent and in administration, anyway I don't have any control over them". Mr Gould said, "Ok, and the personal matter will be dealt with later on down the track." I said, "Ok, but I am not guilty they are charging the wrong person it should be Tony." 35. That was the last thing I remember about the matter and I believed that Workcover had decided to not proceed against me until late February 2010 when I received documentation from Workcover titled Sentencing Material and reference was made that I had pleaded guilty to the personal charges. 36. I immediately contacted solicitor Alex Tees and Paralegal Dean King whom attended the IRC on 4 March 2010. 37. I also contacted Mr Gould and said, "I didnt plead guilty what happened?" Mr Gould said words to the effect of, "Sorry Alex, I really dont recall what happened, it occurred so long ago. I will have a look at my files and get back to you." I have not heard from Mr Gould since that time. 38. At no time did I intend to plead guilty and I did not instruct Mr Gould to plead guilty on my behalf. My only explanation is that there was a misunderstanding in the Court as I was not present when the purported guilty pleas were entered. At all times I believed I was innocent and that Workcover had not properly investigated the matter as they never interviewed the Q/S, and they also never included the contract between Domain Apartments and Sydney Metro. 58The defendant also gave evidence in the witness box and was cross-examined during the hearing of the application. His account in oral evidence conformed largely with the account in his affidavit. 59Mr Gould also gave evidence on the application. His version of events contrasted sharply with the defendant's version. The defendant's version is also in conflict with contemporaneous documents produced from Mr Gould's file. 60According to the documentary evidence, on 26 March 2009, Mr Gould forwarded a letter to WorkCover outlining representations for the withdrawal of proceedings against the defendant. On 16 April 2009, WorkCover wrote to Mr Gould rejecting the representations. On the same day, Mr Gould sought advice from WorkCover as to "the range of penalty which would be sought by the prosecution in the event of pleas being entered to matters and (in) light of the submissions ... already made". WorkCover responded by providing details of the penalty regime under the OHS Act 2000. On 24 April 2009, Mr Gould, on behalf of the defendant, wrote to a barrister, seeking advice as to the likely range of penalties for the offences against the defendant and the corporate defendant, Domain Group Services. These matters clearly suggest that the defendant, through his solicitor, was exploring at that stage the option of entering pleas of guilty to the charges. 61On 28 April 2009, in relation to Mr Gould's court appearance on behalf of the defendant, Mr Gould made the following file note: 9am - Conference with client IRC 1845 - Domain Group Services P/L IRC 1847 - Alex Avi Lankry IRC 1848 - Alex Avi Lankry Defendant in court Instructed Pleas of guilty Each matter 62In evidence, Mr Gould said that on 27 February 2009 he discussed with the defendant sending a submission to WorkCover. On 3 March 2009, he discussed with the defendant the formulation of those submissions. He said he advised the defendant that the prosecution's brief of evidence contained sufficient material upon which it would succeed and obtain convictions against both the defendant and the corporate defendant. After receiving the response from WorkCover on 16 April 2009, Mr Gould said he discussed with the defendant whether he wished to enter pleas to the charges. At that time, according to Mr Gould, the defendant indicated to him that he wanted to plead guilty, although Mr Gould also said he "vaguely recalled" the defendant telling him that he first wanted to make other enquiries as to what course he should take. The letter of 16 April 2009 to WorkCover, Mr Gould said, was sent on the instruction of the defendant. He said that he and the defendant attended the chambers of the barrister to whom he had written on 24 April 2009 and that after the conference he advised the defendant that his prospects of defending the charges were "not good". 63On 28 April 2009, Mr Gould said that he attended a conference with the defendant prior to the directions hearing and that the defendant gave him "firm instructions to go ahead and enter pleas of guilty to each of the matters". Mr Gould said he had a "clear recollection" of receiving those instructions, although he could not recall whether the defendant was in court at the time he entered the pleas of guilty on the defendant's behalf. Mr Gould was shown his file note of 28 April 2009 and he confirmed that the three matter numbers nominated by him in the file note, represented the three matters in relation to which the defendant instructed him to enter pleas of guilty. Mr Gould was also shown paragraph [34] of the defendant's affidavit and he denied having a conversation with the defendant in the terms deposed. He had no recollection of the defendant's account of the conversation deposed to at paragraph [37] of the affidavit. 64On 8 May 2009, Mr Gould wrote to the defendant in the following terms: We refer to our letter of 17 April 2009 and to your attendance at the Industrial Commission on 28 April 2009. In accordance with your instructions on that day, pleas of guilty were entered to each of the prosecutions under s 8(1) and s 10(1) of the Occupational Health and Safety Act 2000 against you and s 10(1) of the Act against Domain Group Services Pty Limited. The matters were then referred back to the President of the Court for allocation to another judge for hearing of the pleas. ... We confirm your instructions to brief Counsel for the final hearing of the pleas only. 65The letter was also sent by way of facsimile the same day to the defendant at the offices of Domain Group Services. 66The defendant was shown the copy of the facsimile letter during cross-examination. He agreed that the facsimile number was the correct number, but denied ever having seen the letter. 67In WorkCover Authority of New South Wales (Inspector Page) v RGM Building Services Pty Limited [2000] NSWIRComm 27; (2000) 97 IR 51, Wright J, President (at [6]), quoted with approval, a passage from Regina v Marchando [2000] NSWCCA 8; (2000) 110 A Crim R 337 in which Simpson J discussed the principles relevant to the Court's discretion in deciding whether to grant leave to a defendant to withdraw a plea of guilty: The relevant legal principles are neither complicated nor controversial. The court has a discretion to permit a change of plea at any time prior to sentence: R v Griffiths (1977) l37 CLR 293 at 335; Chow v DPP (1992) 28 NSWLR 593 at 599. Leave, while a discretionary matter, should readily be granted where the plea has been entered pursuant to some material mistake, or in circumstances where its integrity is otherwise questionable; R v Sagiv (1986) 22 A Crim R 73. Circumstances that warrant the exercise of discretion in favour of permitting the change of plea include lack of appreciation on the part of the defendant of the nature of the charge; absence of evidence sufficient to convict the defendant; fraud or threats or other impropriety inducing the plea: R v Boag (1994) 73 A Crim R 35; or, more generally, a miscarriage of justice for other reasons: R v Chiron [1980] 1 NSWLR 218 at 235. The last mentioned case establishes that a miscarriage of justice justifying the grant of leave to withdraw a plea of guilty may be established, inter alia, where the decision to enter the plea resulted from an erroneous ruling on the admissibility of evidence. The central question in all cases is whether it has been shown - the onus lying on the applicant - that the plea was not really attributable to a consciousness of guilt: R v Davies (1993) 19 MVR 481. 68In Woods v R (2008) 184 A Crim R 108, the Court of Criminal Appeal emphasised that the fundamental principle behind allowing the withdrawal of a plea is ensuring that there is no miscarriage of justice. No miscarriage of justice will occur if the plea of guilty was entered in the exercise of a free choice: Woods at [36]. 69In my view, Mr Gould gave his evidence in a straightforward, open and honest manner. His oral account was confirmed by the contemporaneous documentation, including letters sent on the defendant's behalf in which options were explored as to the likely range of penalties. The contents of those letters clearly suggest that what was being considered by the defendant at those times was the possibility of him entering pleas of guilty to the charges. The file note of 28 April 2009 indicates in clear terms that Mr Gould entered pleas of guilty on the instructions of the defendant to both charges against him and to the charge against the corporate defendant. There can be no doubt that the defendant accompanied Mr Gould on that day to court, although it is not clear that the was present in the courtroom at the time the pleas of guilty were entered. 70The defendant's version of events, on the other hand, is seriously undermined by the contemporaneous documents, in particular, the file note of 28 April 2009 and the letter of 8 May 2009, which were also sent by facsimile to the defendant at the offices of Domain Group Services the same day. 71The documentation, together with the oral evidence of Mr Gould, leaves the Court in no doubt that the pleas of guilty were entered on the defendant's behalf following his clear instructions to his legal advisor. Accordingly, no proper basis has been made out by the defendant which would justify the grant of leave to withdraw the pleas of guilty. On balance the contemporaneous material, and Mr Gould's account, support the finding that the defendant's instructions to enter the pleas of guilty on his behalf were delivered in the exercise of a free choice following negotiations with his solicitor and with other persons on his behalf, and with the benefit of legal advice. 72The Court makes the following orders: (1) the defendant's Notice of Motion in Matter Numbers IRC 1848 and 1849 of 2008 is dismissed; (2) the application made to withdraw the plea of guilty in Matter Number IRC 1847 of 2008 is dismissed; (3) costs are reserved; (4) matter Numbers IRC 1847 and 1848 of 2008 are set down for a directions hearing at 9.30am on Thursday, 7 April 2011.

Amendments 04 April 2011 - Typographical error. Amended paragraphs: Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 04 April 2011

Justices Act 1902(NSW)

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