Orr v Moolarben Coal Operations Pty Ltd; Orr v Chaplin

Does the Court have jurisdiction?

Senior Counsel for Moolarben submitted that the court has no jurisdiction to order a joint trial when the charges are not included in the same summons and the defendant does not consent to the joinder of the proceedings. It was submitted that it is a fundamental principle of criminal law that criminal proceedings may only be governed by a single indictment or charge. Senior Counsel submitted that s 29 of the CPA does not displace this principle.
The starting point for consideration of Moolarben's submission is the decision of the High Court in Munday v Gill [1930] HCA 20; (1930) 44 CLR 38. Several defendants were charged upon different informations with summary offences arising out of a disturbance at a colliery. Justice Dixon said (at pp 89-90): "It may be conceded that defendants charged upon different informations for summary offences are entitled to separate hearings, but these cases show that in England, Victoria and New Zealand it has long been considered that failure to give effect to this right does not go to the jurisdiction of the Justices, nor to the validity of the conviction, but is an irregularity only which the defendants may waive."
Justice Dixon said (at p 86) that there was a great distinction in substance and in practice between summary proceedings and trial upon indictment. Proceedings upon indictment were pleas of the Crown. A prosecution for an offence punishable summarily is a proceeding between subject and subject. His Honour said (at p 87) that where a person is charged on indictment, "there is no way allowed by law of putting in charge of one jury at one time two or more prisoners arraigned upon separate indictments".
In 1940 the Justices (Amendment) Act 1940 (NSW) was passed. This inserted a new s 78A(2) into the Justices Act 1902 (NSW). This provided that where two or more defendants are separately charged with offences, whether of a like or different nature, alleged to have been committed at the same time and place, the Justice shall have jurisdiction to hear and determine such charges together "if the complainants and the defendants consent thereto".
Thus the new s 78A(2) formalised the position reached by the High Court in Munday which was that, while persons charged with summary offences were entitled to separate hearings, those persons could consent to a joint hearing.
From 1967 onwards the Supreme Court hearing criminal charges in its summary jurisdiction had a discretion pursuant to the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) to order that cases could be heard together. Section 13 of that Act provided: "(1) Where a defendant is charged with two or more offences punishable in the summary jurisdiction of the Court, whether or a like or different nature, the Judge shall have jurisdiction to hear and determine the charges together. (2) Where two or more defendants are separately charged with any such offences, whether or a like or different nature, alleged to have been committed at the same time and place, the judge shall have jurisdiction to hear and determine the charges together."
Section 171D was inserted into the District Court Act 1973 (NSW) by Schedule 4(6) of the District Court (Procedure) Amendment Act 1984 (NSW). Section 171D provides: "Subject to this Act and the rules, the procedure and practice of the District Court when exercising its criminal jurisdiction shall, so far as practicable, be the same as the procedure and practice of the Supreme Court when exercising similar jurisdiction."
In 1986 the Criminal Procedure Act 1986 (NSW) was passed. In its original form, it had 18 sections and said nothing about the power of a court to hear charges together. The provisions for hearing charges together were still to be found in s 78A of the Justices Act 1902 (NSW) and s 13 of the Supreme Court (Summary Jurisdiction) Act 1967.
In 1987 s 78A of the Justices Act 1902 (NSW) was repealed and amended by the Justices (Amendment) Act 1987 (NSW) which inserted a new s 78A providing for hearing cases together. Section 78A(2) then gave a Justice jurisdiction to hear and determine charges together if: "(a) the defendants and the informants or complainants consent; (b) the offences arise out of the same set of circumstances; or (c) the offences form or are part of a series of offences of the same or of similar character."
Section 78A(3) provided: "Any such charges shall not be heard and determined together if the Justice or Justices are of the opinion that the charges ought to be heard and determined separately in the interests of justice."
In 2001 Parliament passed three pieces of legislation which worked together with the aim of standardising and reforming criminal procedure. Those Acts were the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW), the Crimes (Local Courts Appeal and Review) Act 2001 (NSW), and the Justices Legislation Repeal and Amendment Act 2001 (NSW). In the Second Reading Speech dated 4 December 2001, in relation to all three Bills, Mr B Debus, Attorney-General said: "The Criminal Procedure Amendment (Justices and Local Courts) Bill sets out the procedure for dealing with criminal matters in the Local Court. The Bill amends the Criminal Procedure Act 1986. This means that all the provisions for dealing with criminal cases across New South Wales jurisdictions will be found in the one piece of legislation. … The Criminal Procedure Amendment (Justices and Local Courts) Bill includes the provisions that are currently in the Supreme Court (Summary Jurisdiction) Act 1967 to ensure that all summary offences are dealt with in the same way, creating greater certainty and consistency for court users."
The Supreme Court (Summary Jurisdiction) Act 1967 (NSW) was repealed by Schedule 1 of the Justices Legislation Repeal and Amendment Act 2001 (NSW), which was one of the three Acts in the "package" of legislation, as described by the Attorney General.
The Criminal Procedure Amendment (Justices and Local Courts) Act 2001 (NSW) greatly expanded the number of sections in the CPA. It inserted a new Chapter 2 Part 3 headed "Criminal proceedings generally".
Section 28(1) provided as follows: "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."
The 2001 amendments also inserted a new s 29 in the CPA. It is this section upon which the prosecutor relies in the applications presently before the court. Section 29 is as follows: "29 WHEN MORE THAN ONE OFFENCE MAY BE HEARD AT THE SAME TIME (1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances-- (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances-- (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."
The learned authors of Criminal Practice and Procedure NSW, LexisNexis looseleaf, say in a note to s 29: "The origin, construction and application of s 29 were considered in Decision Restricted [2020] NSWCCA 189 at [164]-[176] and [192]-[206] where it was held that two accused persons had consented to a joint trial for the purpose of s 29(2)(a) but that, in any event, it would have been open to the trial judge to conclude that the requirements of s 29(2)(c) had been satisfied and that, for the purpose of s 29(3), the interests of justice did not require that the trials of the accused persons should proceed separately."
Considering s 29, the Court of Criminal Appeal said in Decision Restricted [2020] NSWCA: "[166] Section 29 Criminal Procedure Act 1986 is the successor to s 78A Justices Act 1902. Section 78A was repealed in 2001 and re-enacted (in an amended form) as s 29 Criminal Procedure Act 1986. Whereas s 78A Justices Act 1902 applied to summary hearings only in the Local Court, s 29 deals with Part 3 of Chapter 2 of the Criminal Procedure Act 1986 which is entitled 'Criminal Proceedings Generally' and which Part applies, to the extent it is capable of being applied, to all offences, however arising (whether by statute or at common law), whenever committed an in whatever court dealt with: s 28(1) Criminal Procedure Act 1986. [167] Accordingly, since 2001, ss 21 and 29 Criminal Procedure Act 1986 have been applied when issues of joinder of counts against one accused person and joinder of counts against two or more accused persons arise for consideration in trials on indictment."
In par [174] the Court of Criminal Appeal referred to its earlier decision in Roach v R [2019] NSWCCA 160. In Roach the court said: "80 Section 29(1) is an important provision designed to promote and facilitate the fair and efficient disposition of criminal justice. It affords the court a broad power to hear and determine related offences. In this regard, as Mr Glissan QC accepted, the expression 'arise out of' in subsection (b) is of particularly broad ambit. It is an expression which is used in other contexts to promote the efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165. 81 Section 29(3) Criminal Procedure Act is also important: 'Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.' 82 In the context of s 29(3), this Court has observed that the interests of justice extend beyond the interests of an accused person, with the interests of the Crown, witnesses and the public to be considered as well: Osman v R [2006] NSWCCA 196 at [22]. In a different context, the High Court of Australia has observed that the interests of justice will often pull in different directions, involving consideration of the interests of an appellant (an accused person) as well as the interests of the Crown and the community: Kentwell v The Queen (2014) 252 CLR 601 at 614; [2014] HCA 37 at [32]."
The District Court has the criminal jurisdiction conferred or imposed upon it by or under the District Court Act 1973 (NSW), the CPA, or any other Act - s 166 District Court Act 1973 (NSW). Proceedings in this court under the WHS Act are heard by the District Court in its summary jurisdiction - s 229B WHS Act.
Senior Counsel for the prosecutor drew attention to two decisions of the Land and Environment Court in which orders had been made under s 29 of the CPA for multiple charges against different defendants to be heard together. The Land and Environment Court was exercising its summary criminal jurisdiction.
In Director General, NSW Department of Industry and Investment v Marto Investments Pty Ltd & Ors [2010] NSWLEC 56 Preston CJ made an order for joint trials under s 29 of the CPA where there were 16 prosecutions consisting of four charges against four defendants. The offences were against the Fisheries Management Act 1994 (NSW) and the Environmental Planning and Assessment Act 1979 (NSW).
In Secretary, Department of Planning, Industry and Environment v Auen Grain Pty Ltd [2019] NSWLEC 187 Justice Pain dealt with a large number of matters related to land clearing where charges were based upon the Native Vegetation Act 2003 (NSW) and the Local Land Services Act 2013 (NSW). Orders were made under s 29 of the CPA for charges to be heard together.
To the two cases cited by Senior Counsel for the prosecutor can be added the decision of Justice Duggan in Natural Resources Access Regulator v Budvalt Pty Ltd [2019] NSWLEC 169. There were 10 summonses issued against four defendants. Her Honour grouped the matters into two categories and made orders under s 29 of the CPA for certain of the proceedings to be heard and determined together, relying on s 29(2)(c) of the CPA.
It is noted that in all three of those cases there was no challenge to jurisdiction, and the matter for determination by the Land and Environment Court was whether the discretion should be exercised to order proceedings to be heard together.
Senior Counsel for Moolarben relied on the decision of the Court of Criminal Appeal in R v Swansson [2007] NSWCCA 67; (2007) 69 NSWLR 406. Two appellants were convicted after a trial in the District Court of offences arising from a drug importation into Australia. Each appellant was arraigned upon a separate indictment. Both appealed on the basis that the trial and convictions were nullities as the trial proceeded on more than one indictment.
A Bench of five in the Court of Criminal Appeal held that the convictions were nullities on the basis that there is a long established common law rule of criminal procedure to the effect "one indictment, one jury". Chief Justice Spigelman said that while legislation had abolished many of the technicalities associated with indictments, the CPA "clearly proceeds on the assumption that the rule exists as a rule of the common law of criminal procedure"- at par [27]. At par [28] the Chief Justice said: "There is, for example, no provision in the Criminal Procedure Act for the joint trial of separate indictments".
Justice Sully said at [105] that one rationale for the rule was that if two or more accused are to be tried jointly, then a single indictment will make that fact completely clear to the jury.
If the "one indictment, one jury" rule applies to summary criminal matters, then there is no jurisdiction to make the orders sought by the prosecutor.
The case of Swansson can be distinguished from the charge brought against Moolarben. Swansson was a case concerning indictments and hearings before juries. The present proceedings involve charges brought by Summons to be dealt with in the summary jurisdiction of the District Court. To repeat the words of Justice Dixon in Munday, proceedings upon indictment are pleas of the Crown whereas a prosecution for an offence punishable summarily is a proceeding between subject and subject. That this is so is demonstrated in the present case by the charges being brought by an authorised public servant in his own name.
I conclude the "one indictment, one jury" rule has no application to cases such as the present which are dealt with summarily by a judge alone. Based upon the history and analysis above, this court has jurisdiction under s 29(2) of the CPA to make an order that summary proceedings for offences alleged to have been committed by two defendants may be heard and determined together, even though two separate charges have been brought.
I add that if my conclusion that I have jurisdiction to make an order under s 29 of the CPA were to be found on appeal to be incorrect, then the motions brought by the prosecutor would necessarily fail and these proceedings would have to be heard separately.
I turn to consider the discretionary matters arising under s 29 of the CPA.

Should the Court order that the proceedings be heard together?

Senior Counsel for the prosecutor relied upon s 29(2)(b) of the CPA and submitted that the offences arise out of the same set of circumstances. That is correct in the limited sense that the risk to which the workers were exposed was the risk of flyrock and fumes ejected by the blast.
However, the particulars of the acts or omissions of each defendant were quite different. In par 34 of the Third Amended Summons involving Mr Chaplin, there were only two particulars. They are that Mr Chaplin: 1. Failed to provide a warning to other members of the blast crew about the proximity of the Secondary Firing Location to the Blast and, in particular, that the Secondary Firing Location: 1. was within the Personnel Exclusion Zone and/or 2. was in the direction of the path of travel for fumes as estimated by Mr Chaplin on the Blast Plan Map. 1. Failed to recommend to the Blast Crew that they move to a location outside the Personnel Exclusion Zone.
By contrast, the particulars of acts or omissions of Moolarben Coal in the Second Amended Summons focus upon: 1. Failing to provide and maintain a safe system of work by directions to the workers, adequate monitoring of compliance, provision of equipment to the workers and provision of clear maps. 2. Failing to provide adequate training and instruction. 3. Failing to adequately supervise by failing to appoint a Drill and Blast Superintendent with suitable qualifications and experience, and failing to monitor its own employee Mr Fisher in the role of Drill and Blast Superintendent.
Thus while the event which exposed the workers to risk is the same in both cases, the allegations of breach of duty are very different.
In a simplistic way, it can be said that the offences arise out of the same set of circumstances, being the ejection of flyrock and fumes from the blast. However, the offences are not based just on the event or the risk, but also upon the acts or omissions of each defendant. While the alleged failure of Mr Chaplin arises out of his own actions on the day of the blast, the acts or omissions pleaded against Moolarben presumably involve evidence covering quite a period of time up to the day of the blast. Allegations concerning failure to have appropriate directions in place, to appropriately monitor compliance, to provide equipment and maps, to train and instruct workers, and to supervise workers would involve evidence covering a long period of time and not just the day of the incident.
To that consideration can be added the fact that the duty of each defendant is differently cast under different sections of the WHS Act.
Senior Counsel for the prosecutor frankly indicated that in the event that the court ordered that the matters be heard together, the prosecutor would not call Mr Chaplin in its case against Moolarben. Senior Counsel for Moolarben submitted that if Mr Chaplin was not called, then critical evidence from Mr Chaplin in relation to the charge against Moolarben would not be before the court. It was submitted that the prejudice may result in an unfair trial if Mr Chaplin is not called. Moolarben knows to some extent what Mr Chaplin might say, as in the original prosecution brief was a statement taken under compulsion from Mr Chaplin. In oral submissions, Senior Counsel for the prosecutor conceded that if Moolarben was on trial alone, and it required Mr Chaplin to be called, the prosecutor would be bound to call him.
The desire of Moolarben to have Mr Chaplin give evidence, and be available for cross-examination, is a powerful factor against the exercise of the discretion to order that the two matters be heard together.
Counsel for Mr Chaplin pointed to the limited allegations of breach of duty alleged against him in the pleadings, compared to the much broader allegations made against Moolarben. Counsel submitted, and I accept, that the charge against Moolarben involves consideration of a much wider set of circumstances and issues to that contained in the charge against Mr Chaplin. Some of the issues to be ventilated in the Moolarben prosecution would only have peripheral relevance to the charge against Mr Chaplin, if at all. For example, it is difficult to imagine why, if Mr Chaplin alone were on trial, evidence would be called about the training and supervision of Moolarben's employees.
As counsel for Mr Chaplin put it, if there was a joint trial a considerable amount of time would be taken up with evidence relevant to the charge against Moolarben, but such evidence would be of no relevance to the charge against Mr Chaplin. Mr Chaplin would thus be facing a much longer hearing than if he were on trial alone.
All parties accepted that there was a degree of overlap between witnesses and that inconvenience will arise if witnesses have to be called twice to give evidence. Some of that inconvenience may be ameliorated by holding the trial or trials in a location closer to where the witnesses live. No such application has been made at present, as the parties need to know the outcome of the present motions before that can be considered.
I find that the matters ought to be heard and determined separately in the interests of justice. Firstly, Moolarben cannot have a fair trial if Mr Chaplin is not called and is not made available for cross-examination. Secondly, because of the different cases to be made against each defendant, Mr Chaplin would be put to considerable expense in sitting through evidence which has no relevance to the prosecution against him. In my view, these two factors far outweigh any advantage gained by a joint trial, including avoiding inconvenience to the witnesses, cost and use of court time. It is in the interests of justice that the two proceedings be heard separately.
I will therefore make orders in each matter dismissing the prosecutor's motion with an order for costs. I will give the parties time to consider this judgment and bring the matter back for directions.
While four weeks have been set aside for the hearing in May next year, the parties will need to consider which of the two matters proceeds first. My instinctive view is that the proceedings against Mr Chaplin must proceed first so that he can then be called as a witness in the proceedings against Moolarben. However, the parties will have the opportunity to fully argue that matter.

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