Consideration
19In this prosecution the defendant pleaded not guilty on 24 November 2010. The trial is fixed for hearing in November and December 2011.
20In 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 (" John Holland "), Spigelman CJ observed that a defective charge, providing it was brought within jurisdiction, was capable of rectification by the provision of further particulars. His Honour observed at [41] - [45] as follows:
[41] Where the application for order has resulted in a conviction, as was the position in Kirk , and it is ultimately found to be "grossly defective" because of a failure to plead an essential legal element of the offence charged (the measure), such defect is fatal and any conviction is required to be quashed as the defendant was never the subject of a valid charge.
[42] However, where a challenge is brought by the defendant, for example, prior to a plea, and it is determined that the application for order was defective, such deficiency may be curable by the provision of further particulars, or the prosecutor seeking leave to amend.
[43] The critical question that needs to be determined in respect of the applications for order in these matters, is whether any alleged defect is capable of being remedied. In other words, if the particulars failed to identify a specific measure, can one be implied from the particulars?
[44] The Court of Appeal in Knaggs makes clear that an absence of particulars or inadequate particulars in a Court Attendance Notice, does not in itself, lead to the proceedings being invalid or a nullity. There is nothing in Kirk which is inconsistent with the principle in Knaggs . The decision in Kirk did not hold that the applications in that case were nullities or invalid: see Kirk at [30]. Rather, the decision in Kirk , at [35] and [74], is authority for the proposition that the measures to be taken by the defendant were not properly identified at any stage during the course of the trial and therefore the defendant was unable to consider a defence.
[45] An inadequacy of particularity in an application for order is capable of being remedied pursuant to s 16(2) of the CP Act and s 170 of the IR Act , where the statement of offence clearly identifies the nature of the offence charged, provided that there is no uncertainty or ambiguity, and any such inadequacy is to be treated as an irregularity that does not nullify the proceedings: John Holland (Industrial Court) at [38] - [39], [57], [79], [101] and Rockdale Beef at [121] - [123], [130] - [133].
21Absent any further particularisation, particular (a) does not state how the scaffolding was erected unsafely. Stephen King was the sole director of Blue Water Scaffolding Pty Ltd, a scaffolding company involved in the erection and installation of the scaffolding. The additional particularisation discloses the omission and identifies the measure that should have been taken in respect of particular (a).
22As I have earlier indicated, Mr Nagle in support of his contention that particular (a) should be struck out, sought to rely upon Backman J's judgment in Pybar Mining Services Pty Ltd. At [44] her Honour found that particular 1 which alleged that the defendant " Failed to ensure a safe system of work was in place in relation to the task of removing/undoing an overcentre valve" did not identify how the deficiency in the system was alleged to be unsafe.
23Her Honour stated that the deficiency needed to be identified and at [49] observed that " Particular 7 suffers from the same deficiencies as Particulars 1 and 6. ... It requires further particularisation so that the defendant may be properly apprised of these matters."
24Her Honour's conclusions with regard to the sufficiency of particulars was stated as follows:
[50] In summary, the charge is a valid charge. The legal elements are present in the charge. It contains sufficient particularisation of the measures which should have been taken in Particulars 2, 3, 4 and 5. The remaining particulars fail to properly identify the alleged measure: see Kirk at [22] and [25]. At this stage of the proceedings these defects may be curable: John Holland (Court of Appeal) at [41] to [45]. With regard to Particulars 4, 5, 6 and 7 further particularisation should be provided nominating those workers and employees alleged to have been placed at risk and specifying what is alleged to be "adequate" information, training and instruction (which the defendant failed to ensure its employees received).
25Although Mr Nagle submitted it was not entirely clear what her Honour determined in respect of particular 1, Mr O'Neil advised that her Honour, at a subsequent directions hearing, made clear that particular 1 remained with the deficiency highlighted in that particular needing to be identified through further particularisation. To my mind, her Honour's conclusion was unsurprising in light of Kirk and John Holland. I propose to adopt a similar approach in determining this motion.
26In my view and I find, the deficiency in particular (a) has been cured by the further particularisation provided to the defendant. This approach is consistent with Kirk at [30] and [74]; John Holland at [41] - [45], [78] - [79], [141].
27Particular (a) now indicates the particular measure which the defendant should have taken in respect of employees and contractors whilst working at the site. The failure to ensure that the scaffolding was erected safely exposed workers to a risk to their health and safety. Particulars (b) to (f) identify the defendant's additional failures and deficiencies in respect of the erection of the scaffolding. The further particularisation enables the defendant to consider whether reliance may be placed upon the defences found in s 28 of the OHS Act . In addition, further particularisation may be sought.