Judgment
1The defendant, Pybar Mining Services Pty Limited, has applied to the Court by way of Notice of Motion for the following orders:
(a) That the defendant be granted leave to withdraw its plea of guilty;
(b) Pursuant to s 154 of the Industrial Relations Act 1996:
(i) A declaration that the Court is without jurisdiction to hear or determine the prosecution of the Defendant for the alleged offence or offences charged in the Order made on 9 October 2008;
(ii) A declaration that the Order made on 9 October 2008 is null, void and without effect;
(c) An order that the Application for Order made filed on 8 October 2008 and the Order made on 9 October 2008 be dismissed or struck out, vacated or alternatively is permanently stayed.
2The grounds and reasons in support of the Motion are as follows:
(a) the Application for Order seeks orders in relation to matters which are not within the jurisdiction of the Court, accorded by the Occupational Health and Safety Act 2000 (the Act), to hear and determine;
(b) the purported charges in the Application for Order and the Order do not identify the acts or omissions said to constitute the respective alleged contraventions by the defendant of s 8(1) of the Act;
(c) the purported charges do not identify the measures alleged the applicant could have taken but did not take, to avoid the alleged risk to its employees or employee, by reason of which the Application for Orders and the Order fail to satisfy either the common law obligation, the requirements of or (sic) rule 217B(2) of the Industrial Relations Commission Rules, 1996 (then applying), or s 246(1) of the Criminal Procedure Act , 1986 as it applies in this honourable Court;
(d) as a consequence of 3 hereof the defendant cannot avail itself of defences under s 28 of the Act, as it is not able to identify those measures which were not reasonably practicable for it to avoid the alleged risk;
(e) further or in the alternative, the Application for Order and Order are duplicitous.
3The first Order sought in the Motion refers to a plea of guilty entered by the defendant to an Amended Application for Order filed on 3 November 2009. Sentence proceedings have been commenced before Staff J in relation to the amended charge and are currently part-heard.
4The remaining Orders sought in the Motion relate to the original Application for Order filed on 8 October 2008. The grounds and reasons in support of those remaining Orders rely essentially on the High Court judgment 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] HCA 1; (2010) 239 CLR 531.
5The original Application for Order alleges, contrary to s 8(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000) that the defendant, "being an employer on 1 November 2006 at CSA Mine at Cobar in the State of New South Wales ... failed to ensure the health, safety and welfare at work of all its employees, and in particular Gary Hammond ...". Particulars follow from this central allegation which are set out below:
Particulars of risk:
A. Employees were exposed to a risk of being struck by the feed rail assembly of a Tamrock Axera 7 S 260 Jumbo machine.
B. Employees were exposed to a risk of being crushed by the feed rail assembly of a Tamrock Axera 7 S 260 Jumbo machine.
Particulars of the failure:
It is alleged that the following failings occurred in relation to work on the Tamrock Axera 7 S 260 Jumbo:
- Failed to ensure a safe system of work was in place in relation to the task of removing/undoing an overcentre valve.
- Failed to ensure the boom arm was lowered so that the feed beam and rollover assembly was supported and/or rested on the ground when removing/undoing an overcentre valve.
- Failed to ensure the feed rail assembly was supported and/or rested on the ground whilst removing/undoing an overcentre valve.
- Failed to ensure workers were kept clear of the boom arm whilst a fellow worker was working on the overcentre valve.
- Failed to ensure workers were kept clear of the feed rail assembly whilst a fellow worker was working on the overcentre valve.
- Failed to ensure employees received adequate information, instruction and training in relation to hydraulic components and gravitational forces.
- Failed to ensure employees received adequate information, instruction and training in relation to the safe way to go about the task of removing/undoing an overcentre valve.
6On 1 April 2006, the defendant, a mining and civil contractor, entered into an 18-month contract with Cobar Management Pty Limited, the manager and operator of the Cobar Mine, for the provision of underground mining services at the mine. The contract included the supply of labour and equipment for decline and level development. The primary focus of the development work was to provide access to a sub-vertical ore body. The work also included development for access to a series of stopes (ore extraction areas).
7In order to facilitate the development work, the defendant hired from Sandvik Mining and Construction Australia Pty Ltd (Sandvik) a Tamrock Axera 7 S 260 drill, referred to as "the Jumbo". The Jumbo is used for drilling horizontal blast holes and vertical and horizontal ground support holes, as well as for the installation of ground support. During these operations it is stabilised by hydraulic jacks on each corner of the carrier, which rest on the mine floor.
8On 1 November 2006, Gary Hammond, employed by the defendant, was the designated operator of the Jumbo. Mark Haertsch, also employed by the defendant, arrived during the morning to inspect the Jumbo. He detected an oil leak on the right side of the machine and proceeded to fix it. During this time Mr Hammond was changing over a scaling rod, drill steel and other accessories on the right side of the feed rail assembly of the Jumbo.
9Mr Haertsch detected that the oil leak was coming from an o-ring on the forward overcentre valve on the Jumbo's right side. The overcentre valve is located on the overcentre valve manifold which is, in turn, located on the feed rail assembly. At that time the feed rail assembly was in a horizontal position. Mr Haertsch decided to remove the overcentre valve, a task he had not previously undertaken. Removal of the overcentre valve from the manifold causes the feed rail assembly to rotate in the direction it is tilted, unless it is supported. When Mr Haertsch removed the overcentre valve the right-hand feed rail assembly rotated clockwise towards the side wall due to gravity. It trapped Mr Hammond against the side wall causing him severe crushing injuries. The estimated weight of the right-hand feed rail assembly was 750 kilogrammes. It rotated about 45 degrees from the horizontal plane.
10Following the hearing of the defendant's Notice of Motion, the Court of Appeal handed down its judgment in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338. A number of issues raised by the defendant in the Court of Appeal judgment in John Holland were also raised for determination in the present proceedings. In the circumstances, it was thought appropriate to afford the parties the opportunity to make further submissions based on the matters determined by the Court of Appeal in John Holland . Further written submissions were filed by the parties which have helpfully confined the issues in the present proceedings. Accordingly, it is necessary to deal only with the remaining issues in dispute between the parties.
11The defendant's primary contention in these proceedings is that the absence from the charge of any acts or omissions or measures which should have been taken renders the charge invalid. The absence of any acts or omissions pleaded in the charge was said, in oral submissions, to be fatal because, "the act or omission of the employer is an essential legal element of the offence", and, "in the absence of an act or omission there is no offence". Consequently, this Court has nothing before it which enlivens its jurisdiction.
12In developing the contention the defendant relied in particular on passages from the Full Bench judgment in this Court in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 which set out some extracts from the joint judgment in Kirk . It is necessary, in order to understand fully the defendant's submissions on this issue to extract the relevant portion of the Full Bench judgment containing the passages relied upon by the defendant:
[16] Relevantly, it was held in Kirk that a statement of an offence must identify the act or omission said to constitute a contravention of ss 15 or 16 ( Kirk at [14] and [19]). As the prosecutor submitted: 'It is the failure on the part of an employer to take particular measures to prevent an identifiable risk eventuating that is the gravamen of an offence ( Kirk at [14])'. The joint judgment in Kirk (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) criticised the particulars that had been specified in the charges in Kirk. At [26]-[27] the joint judgment referred to the common law requirements regarding an information (references omitted):
[26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) , it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller , Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged".
[27] The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged.
[17] At [28] the joint judgment identified what was considered to be inadequate particularisation in the charges against the Kirk company:
[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.
[18] At [30] it was observed that because no application was made to quash the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged, it was neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. Nevertheless, it was said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges (references omitted):
[30] No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act. Section 4(1) of the Summary Jurisdiction Act permitted the making of an order "[u]pon an application being made ... in accordance with the rules" and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made "in accordance with the rules", or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, 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 where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences.
[19] Kirk makes clear that it is the act or omission of the employer that constitutes the offence and in the absence of that particularisation the Kirk company was denied the opportunity to properly put a defence under s 53(a) of the 1983 Act (at [34], [38]):
[34] Walton J referred to earlier case law that the duty imposed upon an employer "is to be construed as meaning to guarantee, secure or make certain" and that the duty is directed at obviating "risks" to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer's duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is - what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge.
...
[38] A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability.
[20] It was held in the joint judgment that the misconstruction of s 15 was a jurisdictional error (at [74]-[75]) (references omitted):
[74] The first of the errors in question in this case - the errors of construction of s 15 of the OH&S Act - can be identified as a jurisdictional error of the third kind identified in Craig v South Australia . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.
[75] The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make.
13In Kirk (at [26]), the joint judgment referred to the common law requirement that a defendant be informed of both the legal nature of the offence with which he or she has been charged and the particular act (or omission), matter or thing alleged as the foundation of the charge. The term "legal nature of the offence" refers to the legal elements or legal ingredients of a charge: Johnson v Miller (1937) 59 CLR 467 at 486, 489 per Dixon J; Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [130]; John Holland (Full Bench) at [37]. The particular "act, matter or thing" are commonly referred to as essential factual ingredients which, like the legal elements of a charge, must be pleaded in the body of the charge.
14There is a significant distinction long recognised in the authorities between legal elements and essential factual ingredients of an offence. The distinction becomes apparent when the Court comes to consider the consequences arising from the absence of either, or both, essential elements from a charge.
15Before further addressing this issue, it is necessary to refer to the relevant statutory provisions which confer summary jurisdiction on this Court. The relevant provisions are conveniently set out by Spigelman CJ in the Court of Appeal judgment in John Holland at [16] to [27], and by the Full Bench in John Holland at [36].
16The jurisdiction of the Industrial Court to hear and determine proceedings for offences brought 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 (Court of Appeal) at [16]. Section 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 CPA falls within Pt 5 of Ch 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.
17In this jurisdiction, proceedings for an offence are commenced with the filing of the Application for Order: Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151; (2000) 100 IR 156 at [28]. Under s 246(2) CPA the "application" (that is, the Application for Order), "must be in accordance with the rules". The relevant 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.
18The Full Bench in John Holland at [37] commented on the meaning of the words, "the nature of the offence that is alleged", in Rule 217B(2)(e):
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], ...
19Section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (Summary Jurisdiction Act) has been replaced by s 246 CPA. Under Rule 217B(2)(e) the Application for Order (the charge) must include the nature of the offence alleged, that is, the legal elements. Section 11 CPA governs the requirement with regard to identifying in a charge the legal nature of the offence. That section provides that the description of any offence in the words of an Act "is sufficient in law". The Full Bench in John Holland at [38] referred to the requirement under s 11, as well as the requirement to separately identify the essential factual ingredients in the context of an offence brought under s 8(1) OHS Act 2000:
Section 11 of the Criminal Procedure Act allows for the description of any offence to be made in the words of an Act creating the offence. Section 12 provides that a summary offence is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. However, as we have noted, this does not dispense with the common law rule requiring the essential factual ingredients to be identified in the Application for Order: see for example, Stanton v Abernathy at 666. Thus, if an Application describes an offence under s 8(1) of the OHS Act 2000 in the words of that provision, it would seem to us that the Application has met the requirement of identifying the legal nature of the offence, that is the essential legal elements, subject to the proviso that, in adopting the words of the statute, it admits of no uncertainty or ambiguity: Rockdale Beef at [131]. What must also be identified in the Application are the essential factual ingredients that shall include the time, place and manner of the defendant's acts or omissions.
20The consequence of failing to specify the legal elements in a charge brought under s 8(1) (where the statutory limitations period has expired) is that the charge fails to disclose an offence known to law and may not be saved by a Lord Jervis provision such as s 16 CPA: Full Bench in John Holland at [39]. The failure to plead an essential factual ingredient in a charge falls into a different category. Consistent with a long line of authority, if the essential factual ingredients (time, place and manner of defendant's acts or omissions) are not pleaded in a charge this will not amount to a fundamental defect rendering the charge invalid. John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 ( John L) and Stanton v Abernathy (1990) 19 NSWLR 656 are authorities for the proposition that equivalent provisions to s 16(2) CPA will apply where essential factual ingredients are absent from a charge: John L at 521-522; Stanton v Abernathy at 667; see also Full Bench in John Holland at [72] to [74] and Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 at [55(i)], [56(b) to (d)] [133] (deficiency due to failure to identify in some way the acts or omissions is unobjectionable (s 16(2) CPA) or would be regarded as an irregularity (s 170 IRA)).
21Kirk did not consider whether the failure of the charge to identify the acts or omissions was curable by amendment under s 170 IRA or by utilising s 16 CPA (the successor provision to s 6 Summary Jurisdiction Act : see Kirk at [30]). The majority found it neither necessary nor appropriate to consider whether the orders made under s 4 of the Summary Jurisdiction Act (now s 246 CPA) were made upon an application made, "in accordance with the rules". Nor did the majority consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. This was because no application had been made to quash those orders. Of some significance is the comment by the majority in Kirk which appears at the end of [30]:
However, 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.
22This passage suggests that the defects in the charge would have been curable had an application been made to the Court at some stage during the course of proceedings but before those proceedings were finally determined.
23In the Court of Appeal judgment in John Holland Spigelman CJ recognised that a defective charge under consideration by a court acting within jurisdiction was capable of rectification by the provision of further particulars (at [41] to [45]):
Kirk was a case in which the proceedings in the Industrial Court had gone through to the stage of conviction. In the present case the applicants challenge the jurisdiction of the Court to hear the proceedings. However, jurisdiction has already been exercised, as noted above, by the making of orders under s 246(1)(a) of the Criminal Procedure Act, requiring each applicant to appear before the Court to answer the charges.
Reliance in this appeal was placed on the following passage in the joint judgment in Kirk :
"[30] No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act . Section 4(1) of the Summary Jurisdiction Act permitted the making of an order '[u]pon an application being made ... in accordance with the rules' and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, 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 (1937) 59 CLR 467 at 495 where it would act as 'an administrative commission of inquiry' rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences."
One aspect of the context of the offence creating provisions under consideration in Kirk was of particular significance. This was the provision of a defence for the employer, now found in s 28 of the OH&S Act, as set out at [14] above. As with the provision considered in Kirk, that section creates a defence in the terms that "it was not reasonably practicable for the person to comply with", relevantly, s 8. The joint judgment in Kirk stated that, unless particular measures were identified in the charge, an employer would be "denied the opportunity to properly put a defence". ( Kirk at [38], see also at [16], [27] and the last sentence of [28].)
The significance of this defence to the statement of the charge - particularly the requirement of precision in the statement of the contravention alleged - is manifest in the observations at [19] of the joint judgment:
"[19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risk and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable or the employer to have undertaken, is directed to the measures so alleged. It is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16."
The reasoning in Kirk was to the effect that, as a matter of interpretation of the offence creating provisions, a charge had to identify the nature of the offence. In the present case the challenge has been made at the time of the charge. Accordingly, the matters left open at [30] of the joint judgment in Kirk, set out at [42] above, may arise.
24What the majority in Kirk concluded was that the Court at first instance had fallen into error by misconstruing s 15 of the Occupational Health and Safety Act 1983 (OHS Act 1983) and the error had not been corrected by the Full Bench: Kirk at [74]. This had led the Court into convicting and sentencing Mr Kirk and the Kirk Company, "where it had no power to do so". The majority further explained (at [74]):
It had no power to do that because no particular act or omission ... was identified at any point in the proceedings, up to and including the passing of sentence.
25These remarks, together with the observations made by the majority in Kirk at the end of [30], serve to reinforce the conclusion that what the majority in Kirk recognised was that if at some stage during the proceedings, prior to their determination, appropriate particulars had been provided then the defective charges were capable of rectification.
26The question which now arises is whether this Court has jurisdiction to hear the charge. This depends upon whether the application (that is, the charge) was made "in accordance with the rules", as required under s 246(2)CPA. The relevant Rules in force at the time these proceedings were commenced (the 1996 Rules) have been earlier set out in this judgment.
27Spigelman CJ, in John Holland (Court of Appeal), made the following observations with regard to the operation of and interconnection between s 246 CPA and Rule 217B of the 1996 Rules (at [46] [47]):
Section 246(2) of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules, set out at [22] and [26] above, are both expressed in mandatory terms:
An application under s 246 of the Criminal Procedure Act " must " be in accordance with the Rules.
Rule 217B(1) of the Rules requires that an application " must " be made under s 4(1) of the Supreme Court Summary Jurisdiction Act.
Rule 217B(2) provides that an application " must " state, relevantly, the nature of the offence alleged.
Rule 217C(3) requires that service " must " be effected in the manner specified in the Rules there identified.
These provisions constitute a direct route to the proposition that a failure to identify the nature of the offence constitutes jurisdictional error. An Application under s 246(1)(a) of the Criminal Procedure Act requires an accused to answer "to the offence charged in the order". Section 246(2) and r 217B, as noted, both use the word "must". The reasoning in Kirk gives these mandatory requirements specific content.
28A perusal of the charge indicates that sub-rules 217B(1) and (2)(a)(b)(c) and (d) have been complied with. The Court does not understand there to be any issue in any event with regard to compliance with those sub-rules.
29The "nature of the offence" referred to in sub-rule 217B(2)(e), to which I have earlier adverted, refers in turn to the legal elements of an offence: see John Holland (Full Bench) at [37]. It is sufficient to describe the nature of an offence by use of the statutory language (that is, the particular provision under which the offence has been charged): Rockdale Beef at [130].
30Section 8(1) of the OHS Act 2000, under which the present offence is brought, provides that "An employer must ensure the health, safety and welfare at work of all the employees of the employer". The charge alleges the defendant, a corporation, being an employer, failed to ensure the health, safety and welfare at work of all its employees in particular, Gary Hammond. The charge clearly follows the words of the statutory language used in s 8(1). According to the defendant, the charge must also specify or nominate the acts or omissions relied upon as required under s 12 OHS Act 2000. The recitation of the duty set out in s 8(1) is not enough. The failure to include the words "by act or omission" is not, according to the defendant, simply a legalism or a mantra, it is a failure to include an "absolutely" essential element in the charge. According to the defendant, sections 12, 107 and 113 of the OHS Act 2000 all require the identification in the charge of a specific act or omission in respect of the specific measures identified to overcome the risk.
31The three statutory provisions, set out below, provide, relevantly:
12 A person who contravenes, whether by act or omission, a provision of this Division is guilty of an offence against that provision and is liable to the following maximum penalty:
...
107 (1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section or section 107A.
...
113 (1) The court may order the offender to take such steps as are specified in the order, within the period so specified, to remedy any matter caused by the commission of the offence that appears to the court to be within the offender's power to remedy.
(2) The period in which an order under this section must be complied with may be extended, or further extended, by order of the court but only if application for such an extension is made before the end of that period.
32Sections 12 and 107 refer, respectively, to a contravention of an "act or omission" (s 12) and the "act or omission alleged to constitute the offence" (s 107). These words are absent from s 113 and it is not clear to the Court what relevance the provision has to the particular issue presently under consideration.
33As a preliminary observation, it may be said that there is no proposition in Kirk to the effect that the alleged acts or omissions of a defendant are to be regarded as legal elements: John Holland (Full Bench) at [59]. The defendant in these proceedings contends that they are "required elements" necessary for the validity of the charge because while the act or omission is "factual" it nevertheless constitutes a contravention and the contravention is a legal concept under s 12.
34Section 12 provides that a contravention of s 8(1) constitutes an offence: John Holland (Court of Appeal) at [13]. It does not follow from this, however, that the words of s 12 must be imported into a charge brought under s 8(1) for the purposes of ascertaining whether the charge has set out the "nature of the offence" (that is, the legal elements) as required by the Rules. A defendant does not contravene s 12. Rather, he, she or it, being an employer, contravenes s 8(1) by committing an offence and becomes liable to a penalty imposed under s 12.
35Section 107 limits the time in which proceedings may be instituted for an offence against the OHS Act 2000 or the regulations. The commencement of a prosecution within the prescribed time limit is not an element of the offence and there is no requirement that the charge allege compliance with such a requirement: R v Cooling [1990] 1 Qd R 376 at 378; (1989) 44 A Crim R 171 at 173 per Thomas J, approved in WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68; (2002) 112 IR 332 at [91].
36Section 113 empowers a sentencing court in the exercise of discretion to make an order in the terms set out in that section. It has no application at any stage prior to making a finding that an offence has been proven. It applies when the Court is considering imposing a penalty upon a defendant. Under s 112 any order made under s 113 may be made in addition to any penalty that may be imposed in relation to the offence. Section 113 has no apparent relevance to the issue of what is required to be pleaded in a charge.
37Given these matters, I conclude that the charge describes the offence in the words of s 8(1). The requirements of Rule 217B have been satisfied. The Court therefore has jurisdiction to hear the proceedings.
38The next question which arises is whether the time place and manner of the defendant's acts or omissions have been identified in the charge; John Holland (Full Bench) at [38]. The time and place of the defendant's alleged acts or omissions are clearly set out in the charge. It was not in contest by the defendant that these matters are not pleaded in the charge.
39According to the defendant, the charge does not sufficiently identify the risk. The particulars of the risk alleged in the charge have been earlier set out. The detail provided in the charge is similar to the detail provided in the John Holland charges, which were considered by Spigelman CJ in the Court of Appeal judgment (at [48] to [52]) where his Honour said:
Each of the four Applications identifies in the first particular, a specific risk in the following terms:
"(a) There was a risk of being struck by falling rock and/or Tunnel Collapse."
Each of the two applications under s 8(2) of the OH&S Act identify a further risk in the following terms:
"(b) There was a risk of subsidence and damage of the ground surface resulting in the undermining of the unit block."
This is the only difference between the two applications in each case. Otherwise the applications under, respectively, s 8(1) and s 8(2) of the OH&S Act are identical, save for the necessary adjustments to reflect the section under which the charge was laid. I will hereafter refer only to the s 8(1) Application in each case, but the analysis is equally applicable to the s 8(2) Application.
Mr J Agius SC, who appeared for the second respondent, explained to the Court, without contradiction, that there were two separate categories of non-employees: those who worked in the tunnel and those who were in an apartment block above the tunnel, which was affected by the subsidence. Accordingly, the two statements of risk, identified as (a) and (b) in the s 8(2) applications, apply to different groups of persons. There was no issue in this Court as to whether the persons who were above ground were at a "place of work", within s 8(2) of the OH&S Act.
Particular (a) of each Application, clearly identifies a relevant risk for employees working in the tunnel. Particular (b) clearly identifies a relevant risk for persons in or near the unit block affected by subsidence.
40Similarly, the charge in these proceedings clearly identifies the risk to employees, expressed in the alternative, of being struck or crushed by the Jumbo's feed rail assembly (particulars A and B).
41With regard to the particulars of the alleged failure to ensure safety, of which there are seven, the defendant submitted that the particular measures it was to take as an employer in respect of an identified and identifiable risk are not set out in the charge. A necessary consequence of this is that no defence to the allegation of the particular measure is possible as there is no particularity.
42In the Court of Appeal judgment in John Holland Spigelman CJ extracted two propositions (at [32]) from Kirk . These are, that in order to establish a contravention under s 15 and s 16 of the OHS Act 1983:
"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].
43With these matters in mind, I propose to examine each particular of the alleged failure to ensure safety in order to determine whether the measures not taken have not been sufficiently identified.