Plaintiff v First Defendant Second Defendant

Plaintiff v First Defendant Second Defendant - [2014] VSC 265 - VSC 2014 case summary — Zoe

[112]

The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. Likewise the first particular relating to the s 16(1) offence repeated the words of that sub-section and merely connected them to the operation of the ATV. Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity.

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: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J. In John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 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: John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519. 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: John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 519. 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': John L Pty Ltd [1987] HCA 42; (1987) 163 CLR 508 at 520. ...[8]

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: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 483-484.

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.[9]

[225]

The defendant company did have premises at Laverton North which were a workplace under s.5 in my view. The defendant company did have control over the workplace to some extent. In any event this is sufficiently alleged. ...

The substance of the particulars, namely Particular (A), to ensure that there was an adequate system in place to ensure the line was not operating while people were cleaning it, and (B) to ensure there was an adequate system in place to prevent people from coming in contact with the line when it was being cleaned. Substantially repeat the particulars for Charge 1.

I note the term 'system' is used as I have already stressed in reading the charge is used again as it is in Charge 1. Other than the assertion that the system was inadequate in either case the particulars do not specify, again, what an adequate system would have been in either case. This again unfortunately in my view falls foul of the principles enunciated in Kirk.

Given that the matters over which control should have been exercised have not been clearly identified it is speculative whether Baiada had management or control over them. This provides another reason, in my opinion, to conclude that charge 4 has not specified an essential factual ingredient in that particular charge.

Particular (A) alleges that Baiada should have ensured that there was a system to ensure cleaning did not take place while the line was operating. Should Baiada have instituted a tag and lockout system for example? There is no allegation or specificity about that. If it was necessary to move the chain line at points during the cleaning operation there is no allegation that Baiada was in control of that particular process either, nor is it said that Baiada should have at law required Ecowize to provide its own safe work method statement on these issues.

On the authority of the recent case of Baiada in the High Court, there is no actual particular which identifies why Baiada did not fully discharge its duty to do what was reasonably practicable by engaging Ecowize to carry out the work. Even accepting that Baiada and Ecowize both owe a duty to Mr Singh, what the charge in my opinion fails to do is to identify the content of that duty. Once again the 'control issue' and the failure to identify the 'reasonable practical' measures which Baiada failed to take remain unspecified. These are in my view essential elements of a s.26 offence and their absence means that the nature of the offence has not been sufficiently disclosed.[47]

[227]

The amendments now appear to address the error that was contained in the original filed charge sheets, and now deletes references to entering and leaving the workplace. The charges now, as per the proposed amendment, simply reassert the workplace was needed to be safe. Particular (3) asserts the accused had, 'To an extent', management or control of the workplace with respect to the processing chain line while cleaning was being undertaken by Ecowize. The words, 'To an extent' in my view, without more in regard to the management and control of a particular matter, in a workplace criminal prosecution, do not lead to the particularity that is required in my view, and are insufficient to identify the actual responsibility required for proving such an offence.

Further the duties of the person under s.26 of the OH&S Act only apply to matters over which the person has, 'Management or control'. (See s. 26 subs(2)). Under s. 4 sub-s(2) of OHSA this imposes, 'Duties' on persons who are in control or manage, 'Matters' that may give rise to risks to health and safety. The charge in my view still fails to identify the content of the duty in respect of the actual matter or actual risk. Why is it claimed that Baiada did not discharge its duty to do what was reasonably practicable by the engaging of a specified specialist cleaning contractor (Ecowize) to carry out the work? Even if one accepts that they both shared a duty to Mr Singh, the charge in my view still fails to identify the extent of that duty. It may have been possible that either of the two entities controlled the line and its stopping and or its starting, however in a criminal charge for an OHSA prosecution, it is my view necessary to allege why Baiada, rather than Ecowize, must perform that function. ...

Further the failure to identify the reasonable practical measures which Baiada allegedly failed to do, still remains unspecified in the charge. Counsel for VWA accepted that Charge 4 and its particulars did not assert the reasonable practical measures required and did not in that respect intend to conform to my earlier ruling.[48]

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