Inspector Yeung v Hill

Criminal Procedure Act 1986 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 2000

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Inspector Hamilton v John Holland Pty Ltd (2010) 194 IR 189 James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508 CASES CITED: Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 Mark Anthony Clarke (1993) 71 A Crim R 58 Raymond Edward Aldridge (1993) 67 A Crim R 371 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 Stanton v Abernathy (No 2) (1990) 19 NSWLR 656

Mr C Magee of counsel (Prosecutor) WorkCover Authority of New South Wales

LEGAL REPRESENTATIVES: Mr M Roset (Defendant in IRC2009/1772) Willis & Bowring Mr G Walkom (Defendant in IRC2009/1773) Walkom Lawyers

Prosecution under s 26(1) and s 10(1) of the Occupational Health and Safety Act 2000

INSPECTOR THOMAS YEUNG v NEATRULE CEMENT RENDERING PTY LTD AS TRUSTEE OF THE NEATRULE TRADING TRUST

Prosecution under s 8(2) and in the alternative s 10(1) of the Occupational Health and Safety Act 2000

1 Inspector Thomas Yeung ("the prosecutor") has filed notices of motion in the above matters seeking orders that leave be granted to amend the particulars of the applications for order. The grounds and reasons relied upon in each motion were:

Following the recent decision of Kirk v Industrial Relations Commission of New South Wales, Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (" Kirk" ) the Applicant seeks to add greater particularity in referring to the alleged acts or omissions which constitute the offence as set out in the Amended Application for Order. 2 Ms Brooke Aimee Benson, a solicitor employed by the WorkCover Authority of New South Wales, in affidavits relied upon in support of the notices of motion, referred to in the judgment of the High Court of Australia in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 ("Kirk"). Ms Benson annexed amended applications for order to her affidavits. 3 Mr C Magee of counsel appeared for the prosecutor. Mr G Walkom, solicitor, appeared for Neatrule Cement Rendering Pty Ltd as Trustee of the Neatrule Trading Trust ("the corporate defendant"), and opposed leave being granted to amend the application for order. 4 Mr M Roset, solicitor, appeared for the defendant Stuart John Hill ("the personal defendant"). Mr Roset, in opposing that leave be granted to amend the application for order, adopted the submissions of Mr Walkom. Background 5 On 11 November 2009, pursuant to s 246(1) of the Criminal Procedure Act 1986 (the "CP Act"), as applied by s 168 of the Industrial Relations Act 1996 (the "IR Act"), the defendants were ordered to appear before this Court to answer the offences charged in the applications for order. 6 The applications have been the subject of a number of directions hearings before this Court. Both the prosecutor and the defendants sought indulgences from this Court to consider the decision in Kirk and subsequently the decision of the Full Bench in Inspector Hamilton v John Holland Pty Ltd (2010) 194 IR 189. 7 Counsel for the prosecutor submitted that the purpose of the amendments were, firstly, to provide the defendants with further articulation of what the prosecutor alleges are the particulars of the risk to which the defendants' employees were exposed during the relevant period of the alleged breach of the Occupational Health and Safety Act 2000 (the "OHS Act"). Secondly, to ensure that there was no deficiency at all in the particular acts and omissions alleged against the defendants. Thirdly, to ensure that there was no objection to the charges on procedural fairness grounds. 8 The defendants' position was that the applications for order, as presently pleaded, were so "gross" that they contained nothing which could identify the charge with any offence known to law. It followed, so it was submitted, that the applications were accordingly not able to be saved by the power of amendment. In the alternative, the defendants contended that the amendments sought by the prosecutor in the notices of motion would greatly broaden the allegations against the defendants and, given the applications were filed so close to the limitation period referred to in s 107 of the OHS Act, it would not now be in the interests of justice for the motions to be granted. 9 Section 107 of the OHS Act provides that proceedings for an offence under the OHS Act may be instituted within a period of two years after the act or omission alleged to constitute the offence. 10 Accordingly, the defendants submitted that the applications should be dismissed. The amended applications for order 11 In order to understand the issues in these proceedings, it is necessary to relevantly compare the original applications for order charged against the amended applications for order now sought by the prosecutor. This can be best illustrated as follows:

Matter No 1772 of 2009 Original Application for Order Amended Application for Order I, Inspector Thomas Yeung of the Workcover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety 2000 ("the Act") and empowered under section 106(1)(c) of the said Act to institute proceedings in this matter allege that STUART JOHN HILL of 28 Forest Road Yowie Bay ("the defendant") being a director of a corporation JACARANDA PROPERTY DEVELOPMENTS PTY LTD [ACN 091 272 132] ( a corporation under external administration) a corporation whose registered office is situated at C/- Paul G Barry 35 Lindesay Street Campbelltown in the State of New South Wales ("the corporation"), by virtue of Section 26(1) of the Act is taken to have contravened Section 10(1) of the Act in that the corporation, who, on 12 November, 2007, had control in the course of its trade, business or other undertaking of premises, namely a construction site located at, 9 Fenton Avenue Caringbah in the State of New South Wales, ("the premises") used by people not in the defendant's employment as a place of work, and not occupied as a private dwelling, being a controller of premises FAILED TO By its acts or omissions particularised below, ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. The particulars of the charge are: (a) The corporation at all material times had control or alternatively limited control over the premises; (b) At all material times persons not employed by the corporation, in particular Darren Bunney, Hussein Al-Jaboore, Gary Cook and Said Al-Khaled performed work at the premises; I, Inspector Thomas Yeung of the Workcover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety 2000 ("the Act") and empowered under section 106(1)(c) of the said Act to institute proceedings in this matter allege that STUART JOHN HILL of 28 Forest Road Yowie Bay ("the defendant") being a director of a corporation JACARANDA PROPERTY DEVELOPMENTS PTY LTD [ACN 091 272 132] ( a corporation under external administration) a corporation whose registered office is situated at C/- Paul G Barry 35 Lindesay Street Campbelltown in the State of New South Wales ("the corporation"), by virtue of Section 26(1) of the Act is taken to have contravened Section 10(1) of the Act in that the corporation, who, on 12 November, 2007, had control in the course of its trade, business or other undertaking of premises, namely a construction site located at, 9 Fenton Avenue Caringbah in the State of New South Wales, ("the premises") used by people not in the defendant's employment as a place of work, and not occupied as a private dwelling, being a controller of premises (c) At all material times the corporation had control by virtue that it was the owner of the premises and principal contractor for the construction of thirteen townhouses and units at the premises. FAILED TO (d) At all material times the defendant was a director of the corporation. ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. The particulars of the risk are: The particulars of the charge are: (e) There was a risk of injury to non-employees working on scaffolding at the premises of suffering electric shock and/or electrocution from accidental contact by plant or equipment utilised by non-employees, with live overhead powerlines running across the premises. (a) The defendant at all material times had control or alternatively limited control over the premises; The particulars of the acts or omissions in failing to eliminate the risk are that: (b) At all material times person not employed by the defendant, in particular Darren Bunney, Hussein Al-Jaboore, Gary Cook and Said Al-Khaled performed work at the premises; (f) The corporation failed to ensure that the premises were safe and without risks to health in that it failed to ensure that people working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for working near live overhead powerlines in that it failed to undertake measures as follows: (c) At all material times the Jacaranda Property Developments Pty Ltd had control by virtue that it was the owner of the premises and principal contractor for the construction of thirteen townhouses and units at the premises. (i) ensuring that the live overhead powerlines running across the premises were de-energised or re-directed away from the work area, in particular from areas where scaffolding was erected for the construction of blocks; (d) At all material times the defendant was a director of Jacaranda Property Developments Pty Ltd. (ii) ensuring that scaffold was not erected within four vertical metres from live overhead powerlines as required by Australian Standard 4576; (e) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to ensure that people working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for working near live overhead powerlines in that it failed to; (iii) isolating the powerlines through the erection of physical control barriers around or on top of the scaffold panels; (f) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to undertake a risk assessment which considered and identified the hazards associated with working near live overhead powerlines; (iv) place warning signs on the scaffold to alert persons to the presence and proximity of live overhead powerlines; (g) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to ensure that some or all of the non employees working at the premises were provided with any or any adequate information, instruction and/or training in relation to working near live overhead powerlines. (g) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to undertake a risk assessment which: (h) The defendant failed to ensure that the premises were safe and without risks to health in that it failed to ensure that an adequate safe work method statement was in place for working near live overhead powerlines. i. considered and identified the hazards associated with working near live overhead powerlines; and (i) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to provide adequate supervision to persons undertaking work at the premsies in relation to working near live overhead powerlines. ii. considered and identified the risk of equipment coming into contact with live overhead power lines. (j) As a result of the defendants failures there was a risk of injury to non-employees present at the premises of electric shock and or electrocution. (h) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to ensure that some or all of the non employees working at the premises were provided with information, instruction and/or training in relation to working near live overhead powerlines in that it failed to undertake measures as follows: (k) The severe injuries sustained by Said Al-Khaled were a manifestation of that risk. i. conduct site specific inductions to inform persons of the presence and proximity of live overhead powerlines; ii. conduct tool box talks to inform persons of the presence and proximity of live overhead powerlines; iii. inform person that live overhead powerlines were approximately 2.9 metres from the highest point on the scaffold. (h) The corporation failed to ensure that the premises were safe and without risks to health in that it failed to ensure that a safe work method statement was in place for working near live overhead powerlines as required by clause of the 227 Occupational Health and Safety Regulation 2001; (ii) The corporation failed to ensure that the premises was safe and without risks to health in that it failed to supervise to persons undertaking work at the premsies in relation to working near live overhead powerlines in that it failed to undertake measures as follows: i. ensuring that non employees did not work from the top level of the scaffold that was in excess of 2 metres high with equipment that was capable of coming into contact with overhead power lines. (k) As a result of the corporations failures non-employees present at the premises, and in particular, Said Al-Khaled, sustained severe injuries from electric shock which was a manifestation of that risk.

Matter No 1773 of 2009 Original Application for Order Amended Application for Order I, Inspector Thomas Yeung of the Workcover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in this matter allege that NEATRULE CEMENT RENDERING PTY LTD AS TRUSTEE OF THE NEATRULE TRADING TRUST [ACN 125 742 761]("the defendant") a corporation whose registered office is situated a corporation whose registered office is situated at KPR Partners Pty Ltd, Suite 10, 2/4 Northumberland Drive Caringbah in the State of New South Wales, being an employer, on 12 November 2007 at approximately 4.15pm at 9 Fenton Avenue Caringbah in the State of New South Wales ("the premises"), FAILED TO By its acts or omissions particularised below, ensure that people (other than the defendant's employees), and in particular Said Al-Khaled, were not exposed to risks to their health and 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 2000. The particulars of the risk are that: (a) There was a risk of injury to non-employees working on scaffolding at the premises of suffering electric shock and/or electrocution from accidental contact by plant or equipment utilised by non-employees, with live overhead powerlines running across the premises. The particulars of the acts or omissions in failing to eliminate that risk are: (b) The defendant failed to ensure that Said Al Khaled was provided with a site specific induction which informed him of the presence and proximity of live overhead powerlines at the premises prior to work commencing; (c) The defendant failed to provide non employees with a safe system of work with respect to undertaking cement rendering work at the premises in relation to the working near live overhead powerlines in that it failed to undertake measures as follows: (i) ensuring that work was not permitted on scaffolding constructed under live overhead powerlines running across the premises, until the lines were de-energised or re-directed away from the work area; (ii) ensuring that work involving the use of equipment such as aluminum straight edge was not permitted on scaffold that was erected within four vertical metres from live overhead powerlines; (iii) ensuring that work was not permitted on scaffolding at the premises until the erection of physical control barriers around or on top of the scaffold panels which ensured the isolation of the powerlines; (iv) ensuring that work was not permitted on scaffolding at the premises until warning signs were erected on the scaffold to alert persons to the presence and proximity of live overhead powerlines. I, Inspector Thomas Yeung of the Workcover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety 2000 and empowered under section 106(1)(c) of the said Act to institute proceedings in this matter allege that NEATRULE CEMENT RENDERING PTY LTD AS TRUSTEE OF THE NEATRULE TRADING TRUST [ACN 125 742 761]("the defendant") a corporation whose registered office is situated a corporation whose registered office is situated at KPR Partners Pty Ltd, Suite 10, 2/4 Northumberland Drive Caringbah in the State of New South Wales, being an employer, on 12 November 2007 at approximately 4.15pm at 9 Fenton Avenue Caringbah in the State of New South Wales ("the premises"), (d) The defendant failed to undertake a risk assessment which: FAILED TO (i) considered and identified the hazards associated with working near live overhead powerlines; and Ensure that people (other than the defendant's employees), and in particular Said Al-Khaled, were not exposed to risks to their health and 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 2000. (ii) considered and identified the risk of equipment coming into contact with live overhead power lines. The particulars of the charge are: (e) The defendant failed to provide information and instruction to non employees undertaking cement rendering work at the premises in that it failed to undertake measures as follows: (a) The defendant failed to ensure Said Al Khaled was inducted at the premises prior to work commencing; (i) conduct site specific inductions to inform non employees of the presence and proximity of live overhead powerlines; (b) The defendant failed to provide non employees with a safe system of work with respect to undertaking cement rendering work at the premises in relation to the working near live overhead powerlines; (ii) conduct tool box talks to inform non employees of the presence and proximity of live overhead powerlines; and (c) The defendant failed to undertake an adequate risk assessment as to the hazards associated with undertaking cement rendering work near live overhead powerlines; (iii) inform non employees that live overhead powerlines were approximately 2.9 metres from the highest point on the scaffold. (d) The defendant failed to provide adequate information and instruction to non employees undertaking cement rendering work at the premises in relation to the working near live overhead powerlines; (f) The defendant failed to provide supervision to non employees undertaking work at the premises in relation to the performance of cement rendering work near live overhead powerlines in that it failed to undertake measures as follows: (e) The defendant failed to provide adequate supervision to non employees undertaking work at the premises in relation to the performance of cement rendering work near live overhead powerlines; (i) ensuring that non employees did not work from the top level of the scaffold that was in excess of 2 metres high with equipment that was capable of coming into contact with overhead power lines. (f) As a result of the defendants failures there was a risk of injury to employees present at the premises of electric shock and or electrocution. (g) As a result of the defendants failures non-employees present at the premises, and in particular, Said Al-Khaled, sustained severe injuries from electric shock which was a manifestation of that risk. (g) The injuries sustained by Said Al- Khaled were a manifestation of that risk. IN THE ALTERNATIVE to the charge pursuant to section 8(2) of the Occupational Health and Safety Act 2000 IN THE ALTERNATIVE to the charge pursuant to section 8(2) of the Occupational Health and Safety Act 2000 The defendant, being a person, who had control of the premises is taken to have contravened Section 10(1) of the Act in that the corporation, who, on 12 November, 2007, had control in the course of its trade, business or other undertaking of premises, namely a construction site located at, 9 Fenton Avenue, Caringbah in the State of New South Wales, ("the premises") used by people not in the defendant's employment as a place of work, and not occupied as a private dwelling, being a controller of premises The defendant, being a person, who had control of the premises is taken to have contravened Section 10(1) of the Act in that the corporation, who, on 12 November, 2007, had control in the course of its trade, business or other undertaking of premises, namely a construction site located at, 9 Fenton Avenue, Caringbah in the State of New South Wales, ("the premises") used by people not in the defendant's employment as a place of work, and not occupied as a private dwelling, being a controller of premises FAILED TO FAILED TO ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. By its acts or omissions particularised below, ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. (a) The defendant at all material times had control or alternatively limited control over the premises; The particulars of the charge are: (b) At all material times person not employed by the defendant, in particular Darren Bunney, Hussein Al-Jaboorre, Gary Cook and Said Al-Khaled performed work at the premises. (a) The defendant at all material times had control or alternatively limited control over the premises. (c) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to ensure that people working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for undertaking cement rendering work near live overhead powerlines lines; (b) At all material times person not employed by the defendant, in particular Darren Bunney, Hussein Al-Jaboorre, Gary Cook and Said Al-Khaled performed work at the premises. (d) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to undertake an adequate risk assessment as to the hazards associated with undertaking cement rendering work near live overhead powerlines; The particulars of the risk are that: (e) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to ensure that some or all of the persons working at the premises were provided with any or any adequate information and instruction in relation to undertaking cement rendering work near live overhead powerlines. (a) There was a risk of injury to non-employees working on scaffolding at the premises of suffering electric shock and/or electrocution from accidental contact by plant or equipment utilised by non-employees, with live overhead powerlines running across the premises. (f) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to provide adequate supervision to persons undertaking cement rendering work near live overhead powerlines; The particulars of the acts or omissions in failing to eliminate that risk are: (g) As a result of the defendants failures there was a risk of injury to non-employees present at the premises of electric shock and or electrocution. (d) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to ensure that people working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for undertaking cement rendering work near live overhead powerlines lines in that it failed to undertake measures as follows: (h) The severe injuries sustained by Said Al-Khaled were a manifestation of that risk. (i) ensuring that the live overhead powerlines running across the premises were de-energised or re-directed away from the work area, in particular from areas where scaffolding was erected for the construction of blocks; (ii) ensuring that scaffold was not erected within four vertical metres from live overhead powerlines as required by Australian Standard 4576; (iii) isolating the powerlines through the erection of physical control barriers around or on top of the scaffold panels; (iv) placing warning signs on the scaffold to alert persons to the presence and proximity of live overhead powerlines. (e) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to undertake a risk assessment which: (i) considered and identified the hazards associated with working near live overhead powerlines; and (ii) considered and identified the risk of equipment coming into contact with live overhead power lines. (f) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to ensure that some or all of the persons working at the premises were provided with any or any adequate information and instruction in relation to undertaking cement rendering work near live overhead powerlines in that it failed to undertake measures as follows: (i) conduct site specific inductions to inform persons of the presence and proximity of live overhead powerlines; (ii) conduct tool box talks to inform persons of the presence and proximity of live overhead powerlines; (iii) inform person that live overhead powerlines were approximately 2.9 metres from the highest point on the scaffold. (g) The defendant failed to ensure that the premises was safe and without risks to health in that it failed to supervise persons undertaking cement rendering work near live overhead powerlines in that it failed to undertake measures as follows: (i) ensuring that non employees did not work from the top level of the scaffold that was in excess of 2 metres high with equipment that was capable of coming into contact with overhead power lines. (h) As a result of the defendants' failures non-employees present at the premises, and in particular, Said Al-Khaled, sustained severe injuries from electric shock which was a manifestation of that risk.

Statutory Framework 12 The relevant statutory provisions which deal with amendments to applications for order are to be found in s 15, s 16, s 17, s 18, s 19, s 20 and s 21 of the CP Act and Ch 5 Pt 5 of the IR Act which deals with the procedures and powers of the Court. 13 The relevant provisions of the CP Act which are taken to apply pursuant to s 168(2) of the IR Act are as follows: 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. 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:

(a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously", (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, (c) for want of a proper or perfect venue or a proper or formal conclusion, (d) for want of any additional accused person or for any imperfection relating to any additional accused person, (e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence, (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name, (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, (h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened, (i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions - for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect. 18 Judgment on demurrer to indictment The judgment against the accused person on demurrer is to be that the person "answer over" to the charge. 19 Traversing indictment (1) No traverse is to be allowed, or trial postponed, or time to plead to the indictment given, unless the court so orders. (2) However, if the court is of the opinion that the accused person ought to be allowed time, either to prepare for his or her defence or for any other reason, the court is to postpone the trial on such terms as it considers fit. 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor:

(a) with the leave of the court, or (b) with the consent of the accused.

(2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion:

(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment.

(3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial:

(a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict:

(i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment,

as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 1973, the court may commit the accused person to a correctional centre.

(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. 14 Relevantly, s 168 and s 170 of the IR Act provide as follows: 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session. (3) Nothing in subsection (2) affects the operation of section 170. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 15 Section 170 deals with amendments and irregularities and provides: 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. Principles 16 The Full Bench in Inspector Hamilton v John Holland set out the principles applicable to the pleading of criminal charges in the Court's occupational health and safety jurisdiction at [36]. The Full Bench proceeded to review various authorities which considered whether a defect in a charge brought under the OHS Act was capable of being remedied or not and stated at [79]: It is not easy to reconcile the various authorities, but it is reasonable to suggest that s 16(2) of the Criminal Procedure Act (and/or s 170 of the Industrial Relations Act ) may apply to save a charge even if there was a failure to state all the essential ingredients of the offence, provided that there is no uncertainty or ambiguity in the charge, or where certain ingredients can be implied from what is stated in the charge. However, there may be situations where the charge is 'so gross', for example where it is not apparent what offence is being alleged, where s 16(2) cannot be relied upon. As earlier observed, arguably s 170 goes further than s 16 but it is not necessary for the purposes of these proceedings to explore the full extent of the reach of that provision. 17 The High Court in Kirk stated at [26]: Section 11 of the Criminal Procedure Act 1986 (NSW) provided that the description of any offence in the words of an Act creating the offence "is sufficient in law". In Smith v Moody , it was held that such a provision did not dispense with the common law rule. In Ex parte Lovell; Re Buckley , Jordan CJ doubted that earlier authorities such as Smith v Moody should be regarded as binding and that the object of the rule could be secured only by the requirement of particulars on the face of the information. Nevertheless, in Johnson v Miller , Dixon J appears to have applied the common law rule and to have held that a statutory provision like that made by s 11 of the Criminal Procedure Act 1986 "relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions". (Reference to authorities omitted). Consideration 18 It is convenient to firstly deal with the defendants' objections to the amendments to the applications for order. Mr Walkom contended that it was not possible from the applications for order to identify the charges relied upon by the prosecutor as: (a) all the essential ingredients of the offence have not been stated;

(b) there is uncertainty and ambiguity in the charge; and

(c) the "missing ingredients" or the "uncertainty and ambiguity" cannot be implied from the charge or the supporting affidavit of the prosecutor. 19 Mr Walkom relied upon Inspector Hamilton v John Holland (at [79]) and the High Court's judgment in Kirk (at [17], [26]). 20 Mr Walkom submitted that the motions needed to be considered in light of the incident that gave rise to the proceedings. This was a matter, so it was submitted, where a subcontractor of the corporate defendant suffered injury when, whilst on a scaffold, he is alleged to have lifted a length of metal that came into contact with overhead power lines. The prosecutor's affidavit indicated that the scaffold had been certified as being erected in accordance with safety standards, although subsequent to the injury, the scaffold was found to be closer to the overhead lines than the regulated distance. It was contended by Mr Walkom that there was no evidence before the Court that the corporate defendant, a contractor at the site, played any role in arranging the erection of the scaffold. 21 The defendants submitted that in these circumstances there was no identification in the particulars of any such acts or omissions that created the risk to health and safety. It was the failure to identify the causal nexus between the breach and the risk to the safety of the contractor by reference to the acts or omissions relied upon by the prosecutor, which leads to the applications for order being defective at law. This not only prevented the defendant from knowing the nature of the offence, but also deprived it of the ability to determine if those steps were reasonably practicable. 22 To make good these contentions, Mr Walkom, in his written submissions, submitted that an examination of the particulars of the charge in the present application under s 8(2) of the OHS Act demonstrates this inadequacy (each particular is set out in italics with the defect alleged by Mr Walkom thereunder): (a) The Defendant failed to ensure Said Al-Khaled was inducted at the premises prior to work commencing. This particular fails to identify what information or instruction should have been given at the induction that would have alleviated the risk to the safety of Mr Al Khaled. (b) The Defendant failed to provide non-employees with a safe system of work with respect to undertaking cement rendering work at the premises in relation to working near live overhead power lines. This particular does not identify the deficiency in the system or the measures that should have been taken to address it. (c) The Defendant failed to undertake an adequate risk assessment as to the hazards associated with undertaking cement rendering work near live overhead power lines. This particular does not identify the manner in which the risk assessment was inadequate and how such inadequacy was related to the risk of injury. (d) The Defendant failed to provide adequate information and instruction for non-employees undertaking cement rendering work at the premises in relation to working near overhead power lines. This particular fails to identify the information, instruction or training necessary to be given to Mr Al-Khaled. (e) The Defendant failed to provide adequate supervision to non-employees undertaking work at the premises in relation to the performance of cement rendering work near live overhead power lines. This does not identify the deficiency in the supervision. 23 In relation to the particulars to the alternate charge brought pursuant to s 10(1) of the OHS Act, similar submissions were made as follows: (c) The Defendant failed to ensure that the premises was safe and without risk to health in that it failed to ensure that people working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for undertaking cement rendering work near live overhead power lines. This particular does not identify the deficiency in the system or the measures which should have been taken to address it. (d) The Defendant failed to ensure that the premises was safe and without risk to health in that it failed to undertake an adequate risk assessment. to health in that it failed to undertake an adequate risk assessment as to the hazards associated with undertaking cement rendering work near live overhead power lines. This particular fails to identify the manner in which the premises were unsafe or the deficiency in the risk assessment. (e) The Defendant failed to ensure that the premises was safe and without risk to health in that it failed to ensure that some or all of the persons working at the premises were provided with any or any adequate information and instruction in relation to undertaking cement rendering work near live overhead power lines. This particular does not identify what information or instruction was necessary to be given to Mr Al-Khaled. (f) The Defendant failed to ensure that the premises was safe and without risk to health in that it failed to provide adequate supervision of persons undertaking cement rendering work near live overhead power lines. This particular fails to identify the manner in which the supervision was deficient. 24 The essential question, to my mind, is whether the proposed amendments give rise to separate, distinct and new charges. I have come to the view that what is sought in the amended applications for order does not permit a conclusion that the amended applications for order disclose any difference to the respective substantive offences. 25 The proposed amended applications for order plead the same offence, s 8(2) and in the alternative s 10(1) of the OHS Act. The failures alleged occasioning the contravention are pleaded in the same manner as is the occasion upon which it is said that the conduct in breach of the OHS Act has occurred. 26 The consequence of the proposed amendments are merely to effect a change concerning the particulars of the acts or omissions and to provide greater detail to some aspects of the factual substratum upon which the prosecution will seek to establish its case. 27 The particulars of the acts or omissions sought to be inserted in the amendment still relate to the general acts or omissions contained in the particulars of the original applications for order, including particulars relating to: (i) a failure to induct persons working at the premises;

(ii) a failure to provide a safe system of work when working near overhead power lines;

(iii) a failure to undertake an adequate risk assessment;

(iv) a failure to provide instruction and training;

(v) a failure to provide supervision. 28 The majority, if not all, of the matters pleaded in the amended particulars are matters which were expressly dealt with in the affidavit in support of the applications for order sworn by Inspector Yeung on 10 November 2009. 29 In my view, the elements of the offences remain the same and the amendments merely particularise with greater detail the elements of manner and circumstances of the charge and give rise to no injustice. 30 The failures pleaded in the original applications for order related to an unsafe system of work and a failure to instruct, train and supervise persons other than the defendants' employees. These are common failings on the part of employers. 31 In Inspector Hamilton v John Holland, the Full Bench (at [50]) observed that Basten JA in the Supreme Court of New South Wales, Court of Appeal, stated in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 that what is required to be included in an application for order are the essential factual ingredients of time, place and manner of offence: see Rockdale Beef at [109] - [110] and the references therein to John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508. 32 In these matters, the time is identified as at approximately 4.15 pm on 12 November 2007. The place is identified as 9 Fenton Avenue, Caringbah in the State of New South Wales. The manner in which the offence was alleged to have occurred is addressed in each of the applications in the part described as "particulars". The risk was identified as the risk to health, safety and welfare of employees in respect of the hazards associated with undertaking cement rendering work near live overhead power lines and the failure to provide a safe system of work in respect of undertaking that work. 33 The applications proceed to describe how the defendants failed to ensure the health, safety and welfare of persons other than the defendants' employees. It is alleged that the defendants failed to ensure a non-employee was inducted at the premises prior to work commencing; failed to provide non-employees with a safe system of work with respect to undertaking cement rendering work at the premises in relation to the work near live overhead power lines; failed to undertake an adequate risk assessment; failed to provide adequate information and instruction to non-employees undertaking the work near live overhead power lines; and failed to provide adequate supervision to non-employees. 34 The alternate charge brought pursuant to s 10(1) of the OHS Act alleged that the personal defendant, by virtue of s 26(1) of the OHS Act, failed to ensure the premises were safe and without risk to health in that he failed to ensure that persons working on or otherwise accessing the scaffold at the premises were provided with a safe system of work for undertaking cement rendering work near overhead power lines; failed to provide such persons with any adequate information and instruction in relation to undertaking the work and failed to provide adequate supervision. 35 In my view, the applications identify the risk. The affidavits accompanying the applications have no doubt also assisted the defendants in understanding the risk. It is also apparent what failures are alleged and the measures that should have been taken to avoid the risk to safety: that being to ensure a safe system of work with respect to undertaking cement rendering work near live overhead power lines. As the Full Bench observed in Inspector Hamilton v John Holland (at [57]), if there were any deficiencies in the manner in which the particulars were expressed, it would not render the charges invalid. Rather, it would be open to the trial judge to order an amendment or for further particulars to be provided, or for the defendants to seek further and better particulars: see Rockdale Beef (at [126]) per Basten JA and Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 (at 667, 671, 672). 36 Furthermore, it is clear that s 16(2) of the CP Act gives the Court power to permit an amendment of the application for order where a variation is sought to the essential factual particulars of the offences charged. While s 21(1) of the CP Act refers to amendments being permitted where the "indictment is defective", it is clear, in my view, that the phrase "indictment is defective" as it appears in s 21(1) of the CP Act, would extend to the circumstances in which the applications for order in these matters are sought to be amended. 37 The Supreme Court of New South Wales, Court of Criminal Appeal, observed in Raymond Edward Aldridge (1993) 67 A Crim R 371 at 378 (per Sheller JA, Gleeson CJ and Campell J agreeing) that the term "defective" as it was used in relation to an amendment of an indictment had been given a liberal interpretation. 38 The breadth of the meaning of the term "defective" as it applies to criminal pleadings and the breadth of the power to amend was also discussed in Mark Anthony Clarke (1993) 71 A Crim R 58 where Badgery-Parker J said at 63: There is ample authority now for the proposition that an indictment may be regarded as defective in the relevant sense if the allegations which it makes do not correspond with the evidence that has been given in the depositions from the committal proceeding and/or at the trial. 39 The Court of Appeal decision in Rockdale Beef demonstrates that the power to amend is wide although subject to ensuring that irremediable unfairness would not result from a particular defect: see Basten JA at [36]; Inspector Hamilton v John Holland at [216] - [217]. 40 In my view, these are prosecutions where an amendment is appropriate if justice is not to be defeated. Alternative submissions - unjust to amend - time limitation 41 Mr Walkom submitted that if I found that the applications did allege an offence, nevertheless, it would be unjust to allow an amendment to the applications for order. It was submitted on behalf of the corporate defendant that it was well recognised that limitation periods, particularly in criminal matters, were a reflection of community expectations that such matters would be prosecuted in a timely fashion. Mr Walkom pointed to the policy behind this and noted considerations such as those referred to by McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 as including as time goes by relevant evidence may be lost; it is oppressive to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed; limitation periods give certainty to people, especially businesses and insurers in arranging their affairs and provisioning for their liabilities within a definite period; and the public interest requires that disputes be settled as quickly as possible. 42 Mr Walkom submitted that these proceedings were commenced the day prior to the expiry of the relevant limitation period and contended it would not be in the interests of justice to allow an application to be brought at such a late point in time. 43 I am not persuaded that in accordance with s 170 of the IR Act, in the exercise of my discretion, it is in the interests of justice to refuse leave to amend the respective applications for order in the terms proposed. The defendants did not direct my attention to any actual prejudice that they have or are likely to suffer by the amendment. The fact that the amendments are sought to be made after the expiration of the time for commencing proceedings is clearly no bar to granting the amendments. The time at which an amendment is to be permitted is broad: see for example the judgment of the New South Wales Court of Criminal Appeal in James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 where the Court dismissed an appeal from a decision of the trial judge permitting an amendment to an indictment on the 13th day of the trial and after the Crown's principal witness had given evidence. 44 The overriding principle is that the granting of leave to amend an application for order does not result in an injustice or in the defendant being irreparably prejudiced in meeting the charge as amended. I have already rejected the defendants' contention that the amendments "greatly broaden the scope of the offences alleged." 45 The offences charged remain the same. To my mind, the amendments merely seek to refine the particulars provided, therefore ensuring fairness to the defendants and providing them with adequate particulars that may enable them to rely upon any statutory defences that may be available to the defendants under the OHS Act. 46 In light of the foregoing matters, and taking into account the overall interests of justice between the parties, including public interest considerations that prosecutions brought pursuant to the OHS Act are criminal in nature, I conclude that pursuant to s 170 of the IR Act, leave to amend the applications for order sought by the prosecutor should be granted. Costs 47 Mr Walkom submitted that if the motions were granted, the prosecutor should be ordered to pay the defendants' costs. It was contended that the defendants had not acted unreasonably in opposing leave being granted, particularly in light of the substantial amendments sought to be made to the applications for order. Mr Roset supported this submission, observing that this was not a civil matter and that a different onus fell upon the prosecutor. 48 Mr Magee submitted that the costs of the motions would have been saved if the defendants had consented to what counsel contended were reasonable amendments to the applications for order. 49 In addition, Mr Magee submitted that the defendants had been given an opportunity to consent to the amendments, but had declined to do so. It was therefore appropriate that the defendants pay the prosecutor's costs on this basis alone. 50 In my view, the prosecutor should pay the defendants' costs of the motions. There is no basis to find that the defendants have acted unreasonably in not consenting to the proposed amendments. ORDERS

1. Leave is granted to the prosecutor to amend the application for order in accordance with the amended application for order annexed to the notice of motion filed 21 April 2010.

2. Leave is granted to the prosecutor to amend the application for order in accordance with the amended application for order annexed to the notice of motion filed 21 April 2010.

3. The prosecutor is to pay the defendants' costs of the notice of motion as agreed, or as assessed. 51 These matters are listed for directions at 9.30 am on 13 December 2010.

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