Lyco Industries Pty Limited v Inspector Ruth Buggy

Lyco Industries Pty Limited v Inspector Ruth Buggy - [2006] NSWIRComm 396 - NSWIRComm 2006 case summary — Zoe

[44]

12 The first group raises the issue of the meaning of "supplies" as used in s18(1) of the 1983 Act. The appellant contends that Schmidt J was in error in finding that the supply of the machine took place in New South Wales. The submissions were advanced on the basis that the machine was supplied to Kentan in Victoria at the point when delivery was effected to the carriers, the first of which was the freight company P.M.T. According to the appellant, no supply took place in New South Wales and therefore, the requisite "territorial nexus" could not be established. This latter proposition purports to be based on the High Court authority of Johnson v Miller (1937) 59 CLR 467 at 486. In that judgment the High Court observed that a charge should plead, in addition to disclosing the elements of an offence, three essential factual ingredients of time, place and manner. The failure to state in the body of a charge any one of the essential factual ingredients constituted a defect which nevertheless was capable of rectification. The charge, when applied to the facts, was found to contain a latent ambiguity, namely a failure to specify with sufficient precision either the time at which it was alleged certain unnamed persons said to be patrons of a hotel had emerged from the hotel, or in what order those persons were said to have emerged. The latent ambiguity, or defect, was nevertheless curable by resort to amendment of the charge. The complainant, however, did not seek to avail himself of this option and instead elected to proceed upon the complaint as originally particularised. 13 In relation to the present charges it would be readily observed that both identify the time, place and manner of the alleged acts or omissions of the appellant. Nor does it appear that the evidence led before the trial judge disclosed a latent ambiguity in relation to either charge. The reliance placed upon Johnson v Miller by the appellant appears therefore to be misplaced. The real issue which the appellant raised before the Full Bench is where the supply of the machine to Kentan took place. The appellant's position, in that regard, is not that the charges fail to identify the place where the offences were said to have occurred but that they incorrectly identify the place of supply as New South Wales. 14 The appellant sought support for its proposition that the supply of the machine to Kentan was effected in Victoria from s 39(1) of the Goods Act 1958 (Vic), a similar provision to s 35 of the Sales of Goods Act 1923 (NSW). Section 39(1) of the Victorian Act provides:

[50]

[In] the present case, where the circumstances involve the outright sale of the loader (the relevant piece of plant) the "supply" would appear to be concluded, or completed at the time the particular designer, manufacturer or supplier actually supplied the relevant plant. This would usually be at the time of the actual, in the sense of the physical, delivery of the plant but could conceivably occur when the title passed, if that occurred subsequent to physical delivery. As was conceded by the prosecutor, it is unnecessary to determine exactly at what point the title in the loader passed to Namoi Cotton as, on any view, were the prosecutor to fail on his construction argument, and leaving aside at this point the warranty issue, the proceedings would be out of time. 17 In the present circumstances, the intended recipient of the machine was Kentan. An invoice from the appellant made out to Kentan, which appears in the Appeal Book, discloses that the machine was despatched to Kentan on 25 February 1999 and that Kentan purchased the machine from the appellant in an amount of $9,513.00 which included the costs of the freight. Other evidence discloses that the machine was physically delivered to Kentan at its Hexham premises. The appellant's contention that the supply of the machine to Kentan was effected in Victoria when the carrier took delivery must be rejected. On the definition of "supply" adopted by us, the supply must have occurred in New South Wales. Kentan was the intended recipient, the purchaser of the machine and took physical delivery. If the appellant's contention were accepted, all interstate suppliers of plant could evade their statutory obligations under the section to ensure the plant was safe when supplied, by simply engaging an intermediary freight carrier outside New South Wales to deliver the plant. Moreover, the construction of "supplies" which we have endorsed finds support in the extended definition of "supply" in ss 18(2)(d) and 18(2)(e). Those provisions extend the supplier's statutory obligations under the section, to the supply of plant by way of sale, transfer lease or hire, and to supply for the purpose of supply to others. This statutory context takes the definition outside of the more narrow context of physical delivery. The present facts reveal that this is precisely what occurred. The appellant sold the machine to Kentan. After taking physical delivery of the machine, Kentan sold it to the intended user, Mr Munton. 18 These grounds of appeal therefore fail. Grounds 3, 5, 6, 8 and 9. 19 Schmidt J also considered in the alternative, the application of s 3A of the Crimes Act 1900 and concluded that it must be given effect. This finding was obiter given her Honour's earlier findings in relation to the meaning of "supplies" as it appears in s 18(1) of the 1983 Act. 20 The appellant contends that her Honour was in error in finding that the section must be given effect. Her Honour found that even if the machine had been supplied to Kentan in Victoria, it was nevertheless supplied for use by persons at work in New South Wales. The expression, "for use by persons at work", her Honour found, constituted an element of the offence and was therefore sufficient to attract the application of the section. The basis of the appellant's contention is that the expression, "for use by persons at work", appearing in s 18(1) is not an element of the offence but merely a descriptive phrase qualifying the machine which has been supplied. 21 It becomes necessary to set out in full s 3A of the Crimes Act as it applied at the time of the alleged offences:

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3A Territorial application of the criminal law of the State (1) An offence against the law of the State is committed if: (a) all elements necessary to constitute the offence (disregarding territorial considerations) exist, and (b) a territorial nexus exists between the State and at least one element of the offence. (2) A territorial nexus exists between the State and an element of an offence if: (a) the element is or includes an event occurring in the State, or (b) the element is or includes an event that occurs outside the State but while the person alleged to have committed the offence is in the State. (3) The existence of the territorial nexus required by subsection (1) (b) ( the necessary territorial nexus ) is to be presumed and the presumption is conclusive unless rebutted under subsection (4). (4) If a person charged with an offence disputes the existence of the necessary territorial nexus, the court is to proceed with the trial of the offence in the usual way and if at the conclusion of the trial the court, or, in the case of a jury trial, the jury, is satisfied on the balance of probabilities that the necessary territorial nexus does not exist, it must, subject to subsection (5), make or return a finding to that effect and the charge is to be dismissed. (5) If the court, or, in the case of a jury trial, the jury, would, disregarding territorial considerations, find the person not guilty of the offence (but not on the ground of mental illness) the court or jury must make or return a finding of not guilty. (6) The issue of whether the necessary territorial nexus exists must, if raised before the trial, be reserved for consideration at the trial. (7) A power or authority exercisable on reasonable suspicion that an offence has been committed may be exercised in the State if the person in whom the power or authority is vested suspects on reasonable grounds that the elements necessary to constitute the offence exist (whether or not that person suspects or has any ground to suspect that the necessary territorial nexus with the State exists). (8) This section applies to offences committed before or after the commencement of this section but does not apply to an offence if: (a) the law under which the offence is created makes the place of commission (explicitly or by necessary implication) an element of the offence, or (b) the law under which the offence is created is a law of extraterritorial operation and explicitly or by necessary implication excludes the requirement for a territorial nexus between the State and an element of the offence, or (c) proceedings are pending at the commencement of this section in relation to the offence. (9) This section is in addition to and does not derogate from any other basis on which the courts of the State may exercise criminal jurisdiction. (10) In this section: event means any act, omission, occurrence, circumstance or state of affairs (not including intention, knowledge or any other state of mind). the State includes: (a) the territorial sea adjacent to the State, and (b) the sea on the landward side of the territorial sea that is not within the limits of the State. (11) If a person charged with a particular offence could be found guilty on that charge of some other offence or offences, that person is, for the purposes of this section, taken to be charged with each offence. (12) To avoid doubt, a reference in this section to a trial (whether or not a jury trial) includes a reference to a special hearing within the meaning of the Mental Health (Criminal Procedure) Act 1990 .

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Section 3A resolves the problem where not all of the elements of a crime took place within this State by making the offence constituted by all the elements an offence against the law of this State provided that all those elements existed and that there is a territorial nexus (as defined) with this State. The section does not create an offence if none previously existed." 23 Adopting his Honour's analysis of the section set out above, and proceeding upon the assumption that the machine was supplied in Victoria, it must then follow, for the sake of argument, that the supply of the machine constitutes one element of an offence under s 18(1) which occurred outside the State of New South Wales. The other two elements of the offence are that the machine was supplied for use by persons at work, and that the supplier failed to ensure that the machine was safe and without risks to health when properly used. These second and third elements of an offence under s 18(1) also constitute "events" (being either acts or omissions) under s 3A which occurred in New South Wales. We do not agree that the expression, "for use by persons at work" is merely descriptive and not an element of the offence. If this were so, all plant supplied for any purpose would be caught by the section. The existence of two elements or "events" found to have occurred within New South Wales provides the requisite territorial nexus under s 3A which facilitates the finding that an offence was committed against the law of New South Wales. We should add that in our opinion, s 3A(8)(a), contrary to the appellant's contention, has no application to an offence under s 18(1) of the 1983 Act since the place in which the offence was said to have been committed is not an element of the offence, but is an essential factual ingredient which must be pleaded in a charge. 24 These grounds of appeal also fail. Grounds 12, 13, 16 and 17. 25 The appellant also contends that the penalty imposed on it was excessive when compared to the penalty imposed on Kentan. According to the appellant, her Honour erred in applying the principle of parity to the sentences of the appellant and Kentan, on the basis that, "... there should be equal justice for equal crimes". 26 We should observe at the outset that strictly speaking the principle of parity does not apply to the present circumstances since the appellant and Kentan are not co-offenders although both were charged under the same section. Different considerations, however, apply to both offenders. The appellant was the manufacturer of the machine found by her Honour to be inherently unsafe. Kentan sold the machine to Mr Munton. Nevertheless, because both have been prosecuted in relation to circumstances arising out of the same incident, the respective culpabilities of both offenders may be compared: see WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited & Anor (2000) 95 IR 383 at [103]. 27 Schmidt J accepted, on the applications of both parties in both matters, that the principle of parity fell to be applied. The sentence hearing in relation to Kentan proceeded ex parte. Any factors personal to Kentan therefore could not be taken into account in mitigation. Her Honour compared the respective culpabilities of Kentan, the appellant and Mr Munton. Mr Munton appeared on sentence and entered a plea of guilty. He was apparently convicted and fined $10,000. The sentences of the appellant and Kentan were heard on the same day. In relation to the application of parity, her Honour acknowledged the differences in the circumstances pertaining to each offender. A penalty of $100,000 was imposed on Kentan, and, a penalty of $130,000 was imposed on the appellant: Inspector Ruth Buggy v Kentan Pty Limited [2005] NSWIRComm 422 at [18]; Inspector Ruth Buggy v Lyco Industries Pty Limited at [39]. 28 Her Honour's sentencing remarks in relation to the appellant record (at [34], [35]):

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Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 40 The factual situation is within a short compass. The appellant Lyco Industries Pty Ltd ("Lyco") manufactured a hydraulically powered post-driving machine. Kentan Pty Ltd ("Kentan") of Hexham, in New South Wales, placed an order from Lyco for one of those machines on 16 February 1997. Delivery of the machine was to be made by Lyco to Kentan. Lyco invoiced Kentan for the machine. The invoice included "carrier details" which named various carriers who would transport the machine from its place of manufacture in the State of Victoria ultimately to Kentan at Hexham. 41 The appellant argued that the supply of the machinery did not take place in New South Wales but in Victoria, when it caused the machinery in question to be delivered to the carrier, also in Victoria, for ultimate transportation by that carrier and other carriers to Hexham in New South Wales. 42 The question is whether or not the equipment was supplied by the appellant in New South Wales for use by persons at work in New South Wales. 43 Without traversing in detail the authorities referred to in the judgment of Walton J, Vice President and Backman J, I observe that, in a general sense, to "supply" something is to make it available to someone else. It is quite clear, in my opinion, that the appellant made the equipment available to Kentan in Hexham, New South Wales by arranging for its delivery in New South Wales. That s 18 of the Act is intended to apply this way is, in my opinion, abundantly clear when one has regard to the provisions of ss (2)(d) and (e). Subsection (2)(e) in particular contemplates that there will be a supply chain through others. 44 Accordingly, it is unarguable that the appellant supplied the equipment in New South Wales when it arranged for it to be delivered to Kentan in New South Wales. 45 In my respectful opinion, questions of the application of Sale of Goods legislation and when title passes and who assumes the risk of delivery are all irrelevant to the question as to whether or not, as a matter of fact, a defendant has made plant available in New South Wales for use by persons at work. 46 Having regard to these matters and having regard to the remainder of the matters set out in their Honours' judgment, I agree that the appeal must be dismissed. I would join in the orders proposed by their Honours. _____________________

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