SafeWork NSW v AKA Civil Australia Pty Ltd

The relevant law

1. Section 15 of the Criminal Procedure Act 1986 (NSW) provides that the term "indictment" includes any other process by which criminal proceedings are commenced.

Application to quash the Summons

1. An accused may seek to quash an indictment if it has on its face a serious defect: R v Rushton [1967] VR 842.
2. The functions of an indictment include: 1. Informing the court of the precise identity of the offence it is required to deal with: John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519; 2. Providing the accused with the substance of the charge which he or she is required to meet, including identifying the essential factual ingredients: John L at 519; 3. Enabling the court to ensure that only relevant factual evidence is admitted and to identify the appropriate legal instructions: S v The Queen [1989] HCA 66; (1989) 168 CLR 266 at 284-285; 4. Determining the availability of a plea of autrefois acquit or autrefois convict: S v The Queen at 284 and Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77 at 90, 110-111; 5. To invest the court with jurisdiction to hear and determine the prosecution: John L at 519;
3. The functions of an indictment described above have critical significance to the accused receiving a fair trial and, subject to ss 16 and 17 of the Criminal Procedure Act 1986 (NSW), the failure to fulfil such functions is likely to lead to invalidity of the indictment: R v Janceski [2005] NSWCCA 288; (2005) 64 NSWLR 10 at 22 per Spigelman CJ.
4. In a prosecution of an offence under the Act, the prosecution must identify the measures that should have been taken and prove them beyond reasonable doubt: Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [37].

Application for a permanent stay of the prosecution

1. The court has inherent jurisdiction to stay proceedings that constitute an abuse of process: Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392-3; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75.
2. The power is discretionary and will only be used to stay criminal proceedings in the most exceptional circumstances: Barton at 116; Jago at 31 per Mason CJ, at 75 per Gaudron J.
3. The phrase "abuse of process" encapsulates all cases in which the processes and procedures of the court may be used as instruments of injustice or unfairness: Walton at 393. The question the court must answer is whether, in all the circumstances, the continuation of proceedings would involve unacceptable injustice or unfairness: Walton at 392.
4. Fairness or unfairness defies analytical judgment and involves a large content of intuitive judgment: Jago at 57. The onus is on the applicant to show that the disadvantage or prejudice that they will suffer is unacceptable to the extent that a trial would be unfair: Barron v Attorney-General (1987) 10 NSWLR 215.
5. The categories of factual situations in criminal proceedings which may warrant a consideration of the possibility of abuse of process are not closed: Walton at 393.
6. A permanent stay in criminal proceedings will only be justifiable where there is a fundamental defect going to the root of the trial of such a nature that there are no measures that a trial judge can take in the conduct of the trial to relieve against its unfair consequences: Barton at 111; Jago at 34 per Mason CJ, 49 per Brennan J, and 77-78 per Gaudron J.
7. The power to grant a stay must be exercised in accordance with two fundamental policy considerations: 1. the public administration of justice requires the court to protect its functions by preventing abuse of process; and 2. unless the court does so there will be an erosion of public confidence in the court: Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 520.
8. In determining the question of whether to grant a permanent stay the Court must balance the interests of the accused, the public interest of the community that those charged with serious criminal offences are brought to trial and those guilty are convicted, and the need to maintain public confidence in the administration of justice: Walton at 395-6; Jago at 33 per Mason CJ, and at 49-50 per Brennan J.

First Ground: The standard required

1. The complaint of the defendant is that paragraphs 13(a) to 13(f) of annexure "A" in the Summons begin with the word "ensure", without limiting the duty by reference to the phrase "so far as is reasonably practicable". This phrase appears in s 19(2) of the Act.
2. In SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290, Judge Kearns said at [126], of a Summons which contained one particular which was similar in form to the present Summons: "The prosecutor must fail in respect of particular 6b. This is for two reasons. The first is that the particular requires a standard of Freyssinet that the Act does not. The Act requires ensuring health and safety so far as is reasonably practicable. The particular would impose an obligation of ensuring not so limited."
3. The prosecutor applied for leave to amend paragraph 13. The final version of the proposed amendment is set out in MFI 5.
4. Section 21 of the Criminal Procedure Act 1986 gives the court power to amend an indictment if, having regard to the merits of the case, the amendment can be made without injustice. By force of s 15 of the Criminal Procedure Act 1986, this power applies to the Summons in the present case.
5. The Court of Criminal Appeal considered the operation of s 21 in Borodin v R [2006] NSWCCA 83. The appeal involved an application to amend an indictment during the Crown case. The application, which was made on day 13 of a jury trial, was opposed by counsel for the defendants on the basis that it would result in an injustice in the light of the manner in which the witnesses had been cross-examined. The trial judge permitted the amendment.
6. The Court of Criminal Appeal approved the following statement of principle, which came from an earlier decision in R v Stuart (NSWCCA, unreported, 8 March 1996): "An indictment may be amended in order to cure a defect contained in it even at a late stage of the trial. Permissible amendments are not limited to formal matters, but may deal with substantial matters. A count may be substituted where the facts proved justify conviction under the amended count. The question which the trial judge must answer in exercising discretion whether to allow the required amendment is whether it can be made without injustice."
7. The Court of Criminal Appeal also approved statements in an earlier case of R v Cook (NSWCCA, unreported, 9 May 1990) that the power to amend an indictment was limited to technicalities. In that case, it was held that no injustice arose because the factual basis for the charge did not change, and the wording of the charge more appropriately reflected the evidence in the Crown case.
8. The conclusion of the Court of Criminal Appeal, expressed in paragraph [25] was: "Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions would be rendered fruitless. It would only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused."

Submissions on the First Ground

1. Counsel for the prosecutor submitted that the charge itself had not changed. He submitted that the chapeau to paragraph 13 of annexure "A" to the Summons was supposed to apply distributively, so that the requirement of reasonable practicality was to be understood as applying to each of the nominated sub-paragraphs of paragraph 13. Thus it was submitted that the standard expected was the standard in the Act, and not a higher standard than the Act. Whether that construction of the existing paragraph 13 is correct is an academic point, given that the prosecution did seek to amend paragraph 13 of annexure "A" to the Summons.
2. Counsel for the prosecutor submitted that there was no injustice and no evidence of prejudice. He pointed out that there had been no plea entered by the defendant and that the matter was not at the trial stage. He submitted that the effect of the amendment was not to commence a fresh proceeding against the defendant, and thus the two year limitation period for commencing proceedings was irrelevant.
3. Finally, counsel for the prosecutor pointed out that even the defendant had understood all along that the prosecution was alleging that there was a failure to take reasonably practicable steps. He cited question 2(d) in a letter seeking particulars (PX1, p 36), which asked the prosecutor to confirm matters concerning reasonable practicability.
4. Counsel for the defendant submitted that the two year limitation period for commencing proceedings had expired on 7 January 2018. There was no submission made as to the significance of the expiry of that time.
5. Counsel for the defendant submitted that there was prejudice to his client. The defendant had revealed its argument concerning the wording of the Summons, at this early stage, but could have left its powder dry and raised it at the end of the case, thus taking the prosecution by surprise.

Conclusion on the First Ground

1. Given that no plea has yet been entered, and no evidence has been called, I find that there would be no injustice or prejudice to the defendant if the amendment was granted now. I also find that the proposed amendment is one to make plain what is arguably already in the Summons. The prosecutor does not propose any amendment to the section under which the charge is brought, nor does it propose any amendment to the Statement of Facts which accompanied the Summons.
2. The proposed amendment to the opening words of paragraph 13 of annexure "A" to the Summons brings the chapeau into line with the words used in s 19(2) of the Act. It has always been plain, because the Summons only ever alleged a breach of s 19(2), that this is the charge faced by the defendant. The proposed amendment to the chapeau of paragraph 13 makes this clear beyond doubt.
3. The proposed amendments to sub-paragraphs (a) to (f) inclusive in paragraph 13 remove any confusion caused by use of the word "ensure" in the original form of paragraph 13. The new amendments now make it plain that the standard required of the defendant is that imposed by the Act, and not some higher and non-existent standard.
4. The defendant could not point to any different steps it would have taken to date, nor did it point to any actual prejudice which has arisen. I find that it is appropriate to allow the amendment in the form set out in the document MFI 5.
5. There have been costs thrown away by reason of the amendment. The application to amend was not made by a formal Motion, but rather was made responsively after receipt of the defendant's submissions on its Motion. The prosecution is seeking an indulgence from the court and prima facie it should bear the costs of the defendant, of obtaining that indulgence. Further, at least some of the particulars sought by the defendant have been requested because of the way in which paragraph 13 was originally worded. The costs of seeking those particulars have been thrown away.
6. I propose in final orders to grant leave to the prosecutor to amend the Summons. The prosecutor wishes to address further on costs.

Factual Background

1. Counsel for the defendant set out the factual background in written submissions as follows. The defendant was engaged in performing demolition work at 300-398 Pacific Highway at Lane Cove in Sydney. On 7 January 2016 the front façade of one of the buildings on the premises collapsed onto the Pacific Highway while the defendant was performing demolition work. Overhead power cables were also brought down in the collapse. No-one was injured in the incident. No vehicles were immediately in front of the premises, nor were any pedestrians. The demolition of the façade had commenced at about 10.00am using a 50 tonne excavator. The collapse occurred between 11.00am and 11.15am. No person was injured in the building collapse.

The risk

1. Section 19(1) of the Act is concerned with the health and safety of "workers". Section 19(2) of the Act is concerned with the health and safety of "other persons". Paragraph 12 of the annexure to the Summons pleads the risk as follows: "The risk was the risk of death or serious injury to other persons including members of the public in the vicinity of the demolition site from being struck, crushed or otherwise contacted by falling building material debris and/or scaffold components and/or from being struck or coming into contact with falling electrical wires as a result of the demolition work ('the risk')."

Second Ground: Identification of "other persons"

1. Paragraph 13 of annexure "A" to the Summons, as amended, pleads that the defendant failed to ensure, so far as is reasonably practicable, that the health and safety of other persons was not put at risk, in that it failed to take one or more of six pleaded "reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risk to health and safety in relation to the demolition site".
2. The measures now to be pleaded in an amended Summons can be summarised as follows: 1. Undertaking a risk assessment prior to commencement of the demolition and implementing the most effective risk control measures to address the risk; 2. Developing implementing and enforcing a safe system of work for the demolition of the front façade prior to the commencement of demolition, including consideration of alternative methods such as hand demolition, or consideration of removing the inner and outer brick layers of the front façade simultaneously in small sections; 3. Creating a detailed demolition work plan in accordance with Clause 2.3 of Australian Standard 2601-2001 Demolition of Structures; 4. Developing implementing and enforcing a demolition checklist or similar document; 5. Having a qualified and experienced nominated demolition supervisor, named on the restricted demolition licence, present at the site during the demolition work; 6. Giving adequate verbal instruction to the workers carrying out the demolition work, including site specific guidance.
3. Paragraph 14 of annexure "A" to the Summons pleads that "as a result of the defendant's failures, other persons, in particular members of the public, were exposed to a risk of death or serious injury".
4. The solicitors for the defendant requested particulars from the prosecutor. One of the requests was for the prosecutor to identify the "other persons" referred to in the charge. It is not in dispute that no persons were injured and no motor vehicles were travelling along the road at the moment of the collapse. The prosecutor has not identified any individual by name.

Submissions on the Second Ground

1. Counsel for the defendant submitted that it was an element of the charge under s 19(2) of the Act that the failure had to expose an individual to a risk of death or serious injury. The defendant submitted that it was incumbent upon the prosecutor to particularise and prove the identity of individuals who had been exposed to risk. Further, it was submitted that because no person was injured or struck in the collapse of the wall, the charge could not be made out.
2. Counsel for the defendant submitted that the charge as properly understood was limited to a risk which existed at the moment when the wall collapsed. If the charge was so limited, then no person was put at risk. A limited amount of evidence was received on the Motion. This enabled counsel for the defendant to point out that the risk, if there was one, of anyone being injured by the collapse of the wall was managed by the defendant, by having spotters. Those spotters were in contact by radio with the excavator operator, and stopped him from operating the excavator if there were any cars or pedestrians passing the work site.
3. Further, counsel for the defendant submitted that the case must be limited to the time when the excavator operator was actually working the machine, and he was not working when spotters were telling him that people or cars were around.
4. Counsel for the prosecutor submitted that there was no temporal limitation on the risk being in existence only at the moment when the wall fell.
5. Counsel for the prosecutor submitted that the defendant was referring to its interpretation of the evidence, but that the facts could not be established until all evidence was called and tested. He submitted that on an application such as the present, the prosecution case had to be taken at its highest, which was the case pleaded in the Summons and the Statement of Facts. Counsel submitted that the risk was not just a risk at the time when the wall collapsed, but that the risk was one which existed from about 10.00am on 7 January 2016 until about 11.15am when the wall collapsed i.e. the entire time when the process of demolishing the wall was taking place.

Conclusion on the Second Ground

1. A reading of annexure "A" to the Summons shows that there was no specific pleading of the time at which the risk was in existence, or the time at which the health and safety of other persons was put at risk from work carried out as part of the conduct of the business or undertaking, as required under s 19(2) of the Act.
2. In paragraph 9 of annexure "A", the prosecutor pleaded: "On 7 January 2016, Mr Neale was at work at the demolition site undertaking duties as site supervisor and the operation of a CAT 349EL 50 tonne excavator (the 'excavator') to perform demolition of the Building including the front façade masonry wall."
3. There was no specification in paragraph 9 of a time, and paragraph 9 is broad enough to encompass the entire period for which Mr Neale was operating the excavator to demolish the front façade masonry wall. On the limited evidence on the motion, this was between about 10.00am and about 11.15am. The defendant has never requested particulars of the time at which the prosecutor alleges the risk existed, and thus the prosecutor has never confined its case by particulars to the moment when the wall collapsed.
4. Paragraph 11 of annexure "A" to the Summons supplies particulars of the "other persons" referred to in the charge under s 19(2) of the Act. Paragraph 11 reads: "The other persons included members of the public who were in the vicinity of the demolition site including pedestrians and/or persons operating vehicles on the Pacific Highway, Lane Cove in front of the demolition site and/or persons who were otherwise located on or in the vicinity of the Pacific Highway, Lane Cove near the demolition site."
5. While no such person has or can be identified by name by the prosecutor, paragraph 11 of annexure "A" is wide enough to encompass not only persons (if any) immediately adjacent to the wall when it collapsed, but also pedestrians and persons in cars passing the demolition site during the course of the demolition, and prior to the collapse. There is no temporal limitation in paragraph 11.
6. On the limited evidence presented on the Motion, Mr Neale, the excavator operator, said that he did not knock the wall with the excavator or its bucket. He suggested that the wind blew the wall over. If Mr Neale played no part in directly knocking the wall and pushing it over, then the evidence may establish that the wall could have collapsed at any time between starting the excavation work at 10.00am and the collapse at about 11.15am.
7. The defendant did seek particulars of paragraph 11 of annexure "A" to the Summons. It specifically sought particulars of any pedestrians or persons in vehicles in the vicinity of the demolition site. Part of the answer provided by the prosecutor (PX 1, p 41) was to refer to still photographs taken from CCTV footage which covered the period from 10.00am onwards. In each of those photographs, taken at 15 minute intervals, cars can be seen driving along the Pacific Highway adjacent to the demolition site. The defendant could only have understood from that answer that the prosecution case was that the risk existed during the entire course of the demolition and not just at the moment when the façade collapsed.
8. In Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94, the Court of Appeal dealt with a prosecution under the Occupational Health and Safety Act 2000 (NSW). A worker had been found dead in a sediment pond. A post-mortem examination indicated that he had died of a heart attack. The pond was not guarded or fenced. There was no evidence as to how the deceased's body had got into the pond.
9. The charge was under s 8(2) of the Occupational Health and Safety Act 2000. It was held that the word "risks" in the Act referred to the possibility of danger and the word "exposed" in the provision referred to a person who was sufficiently proximate to the source of the risk at the relevant time for that risk to possibly impinge upon his or her health or safety. The Court of Appeal followed the English decision of R v Board of Trustees of the Science Museum [1993] 1 WLR 117; [1993] 3 All ER 853. The Court of Appeal found that a person could be "exposed to risks" within the meaning of s 8(2) of the Act by reason of sufficient proximity to the source of a risk for the risk to come home, irrespective of a finding of any mechanism by which this could happen. Again, the Science Museum case was followed and applied.
10. That case concerned a museum where bacteria existed in the water in the air cooling system, which could cause Legionnaires Disease. The museum was charged with failing to discharge a duty to conduct their undertaking in such a way as to ensure as far as reasonably practicable that members of the general public were not exposed to risks to their health and safety.
11. The English Court of Appeal held that the term "risk" was to be given its ordinary meeting of denoting the possibility of danger rather than actual danger. It was enough for the prosecution to prove that there was a risk that the Legionnaires Disease bacteria might escape and the prosecution did not have to go further and show that the bacteria had in fact emerged into the atmosphere where they could be inhaled. Thus the prosecution did not have to prove injury to a specific person, since exposure to risk was the gravamen of the offence.
12. To similar effect was the decision of the South Australian Industrial Relations Court in Boland v Safe is Safe Pty Limited [2017] SAIRC 17. A young person was killed when ejected from an amusement ride on 12 September 2014 at the Adelaide Showgrounds. The ride had been certified safe on 1 September 2014 by the defendant. The prosecution alleged that the defendant had engaged in conduct that exposed a class of individuals to whom a health and safety duty was owed, namely patrons occupying seat 5 of the amusement ride, to a risk of death or serious injury.
13. In para [34] of the judgment, the court said that the breach occurred on 1 September 2014 at the workplace. The gist of an offence under the Act was exposure to risk. The consequence of a breach of the duty was not an element of the offence. The court said: "If the informant's case is made out, the defendants put the nominated class of persons to a risk to their health and safety when the device was inspected and the certificate was issued. Section 19(2) speaks of 'the health and safety of other persons is not put at risk from work carried out'. It is the creation of the risk that constitutes the offence. In this context 'risk' simply means the possibility of the health and safety of the nominated class of persons being compromised."
14. In the present case the nominated class of persons was, I find, the members of the public who had been adjacent to the demolition site between the time demolition started at approximately 10.00am and the time the façade collapsed at approximately 11.15am. I find that it is not necessary for the prosecution to particularise the identity of any of those individuals.
15. I find that the prosecution case as disclosed in the Summons, annexure "A" to the Summons (as amended) and the Statement of Facts is one which alleges that a risk existed during the course of the demolition operation on the morning of 6 January 2016. On the limited evidence on this Motion, that operation occurred between about 10.00am and about 11.15am, when the front façade of the building collapsed onto the Pacific Highway at Lane Cove.
16. While admissions made by the prosecutor indicate that no person and no vehicle was under the façade when it collapsed, and thus no person was injured, the prosecution case is that the risk of a collapse existed during the entire demolition operation between about 10.00am and 11.15am.
17. I do remark that this could have been made a lot clearer if those times had been specified in the Summons. It is instructive to note that the indictment in the Science Museum case specified a beginning and an end date for the risk. In future, Summonses might be drafted with that in mind.
18. I find that the prosecution has not confined itself to a risk which occurred at one instant, when the wall collapsed, either by the terms of its Summons or by any particulars supplied after the Summons was served. I find that the defendant knows the case it has to meet, and that that is a case which, depending on the facts proved, constitutes an arguable breach of s 19(2) of the Act.
19. For those reasons I decline to make the orders sought in the Motion, being orders to quash the proceedings, or stay or dismiss them. I will hear the parties further on costs.

Conclusion and Orders

1. My orders are: 1. Grant leave to the prosecutor to amend the Summons in accordance with MFI 5. 2. Dismiss the defendant's Motion filed on 11 March 2019. 3. I will hear the parties further on costs.

Amendments 14 June 2019 - Typographical error DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 June 2019