SafeWork NSW v Buddco Pty Ltd

THE POWER TO AMEND

1. It is common ground that the District Court of NSW has the power to amend pleadings in matters related to work and safety prosecutions pursuant to ss 20 and 21 of the Criminal Procedure Act 1986 (NSW) ('CP Act').
2. Section 20 of the CP Act reads as follows: '20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor - (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.'
3. Whilst section 21 of the CP Act is as follows: '21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion - (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial - (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict - (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 2013, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.'
4. Section 15(2) of the CP Act defines 'indictment' as 'any other process or document by which criminal proceedings are commenced', which includes the Summons in this matter.
5. Sections 20 and 21 of the CP Act provide the Court with two differently based discretions, though both sections result in a similar outcome. In Rajendran v R [2010] NSWCCA 322; (2010) 206 A Crim R 806, Justice Simpson at paragraphs 36 to 44 details the different purposes of the sections: 36 'Section 20 and s 21 have different purposes. Although s 20 is framed in the negative, it nevertheless confers power upon a court to permit amendment to an indictment. The circumstances in which the leave may be granted are not confined by the section, although, obviously, the discretion must be exercised appropriately. It is worth noting here that s 20(2) expressly states that s 20 does not affect the powers of the court under s 21. One common circumstance in which amendment is allowed is where the evidence, as it emerges, is not entirely consistent with what is alleged in the indictment, for example, as to the date of an offence. 37 Section 21 is more complex. Its underpinning is an opinion held by the court that an indictment is defective. Where that opinion is held, and where the court holds the further opinion that the indictment can be amended without injustice, the court is empowered to take that course (sub-s (1)). The ensuing sub-sections contain consequential provisions. 38 Not surprisingly, the Criminal Procedure Act contains no definition of what constitutes a defective indictment. Section 16 lists matters (called in the heading "defects") that do not invalidate an indictment, and therefore give some guidance as to the kind of matters that might constitute defects. I have been unable to find in the authorities any attempt at judicial definition. There, are however, a number of cases in which indictments have been alleged, or found, to be defective. 39 In Mackay v The Queen [1977] HCA 22; 136 CLR 465 an indictment was held to be defective (although in a technical sense only) where two individuals were charged together on an indictment in circumstances where the Crown did not contend that a joint offence had been committed. Notwithstanding the technical defect, the Court upheld the conviction which followed. 40 In Doga v R [2009] NSWCCA 303; 198 A Crim R 349, McClellan CJ at CL (with the concurrence of Spigelman CJ and Grove J) said: "105 An indictment is defective at common law and liable to be quashed if objection is taken before trial, if it fails to identify an essential factual ingredient of an offence." 41 In Park v R [2010] NSWCCA 151, McClellan CJ at CL said; "39 The obligation of the Crown when pleading an indictment is to identify the essential factual ingredients of the offence ..." There the complaint was not that essential facts had not been pleaded, but that an "essential legal ingredient" had not been pleaded. The Court rejected that contention. The indictment there in question was therefore not defective.'
6. The application of statutory provisions that would permit an amendment to proceedings under the WHS Act were considered in the context of similar offence provisions under the repealed Occupational Health and Safety Act 2000 (NSW) ('OHSA') by the Court of Appeal in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7. This decision demonstrates that the power to amend is a wide one, subject to ensuring that 'irremediable unfairness' would not result from a particular defect: per Basten JA at [133].
7. Section 20 of the CP Act does not limit the discretion of the court to grant leave to the prosecutor to amend an indictment. As stated by Simpson J, 'the circumstances in which the leave may be granted are not confined by the section, although, obviously, the discretion must be exercised appropriately': Rajendran v R (supra).
8. Conversely, section 21(1) does limit the circumstances in which the court may grant leave to amend the indictment and in doing so, contains a clause enlivening the discretion. The operative clause that enlivens the Court's discretion under section 21(1) is 'if of the opinion that an indictment is defective'. The limiting nature of that clause dictates that my discretion under section 21(1) is only enlivened once I have satisfied myself that, the indictment is defective. It follows that I am only required to have regard to the further requirements of section 21(1), namely, my regard for the merits of the case and any consequential injustice that may flow from an amendment, once I have determined whether or not the indictment is defective.
9. Consequently, if I am not of the opinion that the indictment is defective or if I am of any other opinion, I may exercise the discretion under section 20 of the CP Act, which contains no such further requirements.

WHERE AN INDICTMENT IS DEFECTIVE

1. Section 21(1) of the CP Act refers to amendment being permitted where the indictment is 'defective'. In this regard, I note the authorities outlined by Simpson J in Rajendran v R (supra) at [38] to [40] that seek to clarify the meaning of 'defective' in section 21(1) of the CP Act.
2. Additionally, the Industrial Court of NSW considered the issue of proposed amendments to the particulars of a Summons in a health and safety prosecutions under the OHSA in WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited [2006] NSWIRComm 242 in which Stanton J permitted the amendment of a Summons that her Honour considered defective as there was a 'failure to specify essential factual particulars - such as the Summons time, place or the manner of the offence' at [20]. In that matter the prosecutor was granted leave to make changes to the particulars of the Summons that which were distinguished from 'the essential legal elements of the offence' [20]; see also Inspector Nikolovski v Peter Bakhos and City Civil Pty Ltd [2011] NSWIRComm 20.
3. In Clarke v R (1993) 71 A Crim R 58, Badgery-Parker J said in dicta at 63: 'There is ample authority now for the proposition that an indictment may be regarded as defective in the relevant sense if the allegations which it makes do not correspond with the evidence that has been given in the depositions from the committal proceeding and/or at the trial.'
4. The Prosecutor contends that the original Summons was 'defective' in that there is a variance between the evidence that the Prosecutor intends to call at the hearing as to the reasonably practicable measures that were available to the defendant to eliminate or otherwise minimise the pleaded risk. The Prosecutor proposes to call two witnesses and has indicated that the evidence will come from: 1. Mr Joseph Simurina in his supplementary Expert Report dated 29 April 2019; and 2. Detective Senior Constable Timothy Marshall in his statement dated 7 January 2019 and attached report.
5. The Prosecutor submits that the Summons is defective in that the allegations it makes to address the pleaded risk do not correspond with the evidence that is contained in the above material. The proposed amendments are only amendments to the particulars of the charge, and do not introduce new contraventions or expand the respective charge.
6. The Prosecutor further submits that the amendments do not change the 'essential ingredients' of the offence, nor do they plead any additional essential factual ingredients of the offences. On that basis there is no difference to the substantive offence pleaded in the Summons.
7. The Prosecutor further contends that the Summons contains extensive particulars of the acts and omissions said to found the charges. The amendments sought to be made in the Amended Summons seeks to particularise additional measures that the Defendant failed to take, and to ensure fairness to the Defendant by ensuring that it has sufficient particulars to enable it to know the case alleged against it.
8. They submit that they amendments sought to be made clearly fall within the ambit of those permissible in accordance with the reasoning of the Court of Appeal in the matter of Rockdale Beef (supra).
9. The defendant submits that before the discretion is enlivened in the Court pursuant to section 21 of the CP Act there must be a finding by the Court that the indictment, or in this case the Summons, is defective. They note that the CP Act contains no definition of what constitutes a defective indictment. In this matter, it has not been suggested by the Prosecutor that the Summons in its original form was not capable of basing a successful prosecution. In other words it is not suggested that the current Summons was missing any essential legal elements, nor did it fail to particularise what is said to be the breach committed by the defendant.
10. The defendant also highlights that a further difficulty arises for the Prosecution in that its application is unlike other more traditional criminal indictments, as the Summons in this matter has a selection of particulars which the Prosecutor may or may not be able to prove to the requisite standard.
11. They submit that this form of pleading weighs against a finding that the Summons is defective in its original form.
12. However, with respect, the defendant's submissions in this regard are moot. If I am wrong in finding that the indictment is defective in its current form, I maintain a discretion under section 20 of the CP Act to grant leave to the prosecutor to amend an indictment regardless of whether the indictment is defective or not. Noting that the effect of section 21(1) of the CP Act is to cure or rectify a defective indictment, section 20 of the CP Act does not seek to limit the circumstances in which I may allow amendment to the indictment, and I am not bound by a finding that the indictment is or is not defective.
13. In the present case, the amendments are only to the particulars of the charge, not to the charge itself. They do not introduce new contraventions or expand the ambit of the charge, nor do they change the essential ingredients of the charge.
14. Whilst I agree with the defendant's submissions that the Summons in its current form is capable supporting a successful prosecution, I consider that the Summons should properly and accurately particularise the alleged failures of the defendant. This is primarily for the benefit of the defendant so that it may know the exact nature of the offence alleged against it and thus the case it must answer, but also so all alleged failures are properly put before the Court.
15. The 'defects' in the Summons do not affect the nature of the charge nor the essential factual ingredients, though the effect of the amendments would further particularise the allegations of failure on behalf of the defendant and allow for the evidence proposed to be led by the prosecution to go to those allegations.
16. The parties are in agreement that I do not have to be satisfied that the new evidence sought to be led by the prosecution as a result of the amendments would in fact support the amendment, nor whether or not the evidence itself is admissible.
17. The new evidence that the Prosecution has received and upon which the amendments will be based, may be admissible documents, and may support the supplementary particulars, but I need not decide those two questions. It is sufficient if I think that it is necessary to meet the circumstances of the case.

PREJUDICE, DELAY AND THE INTERESTS OF JUSTICE

1. In exercising my discretion under section 21, there are various matters that I must consider, including delay, prejudice to the defendant and the interests of justice. Whilst section 20 of the CP Act does not require me to consider any factors in coming to my decision about whether or not to grant leave to amend the indictment, I consider prejudice, delay and the interests of justice as relevant considerations in most, if not all, interlocutory determinations.
2. In Borodin v R; Borodin v R; ED v R; Bogomiagkov v R [2006] NSWCCA 83 the court considered whether there had been a miscarriage of justice as a result of an amendment to the indictment, as the defendants claimed that the late amendment, during the course of the trial, deprived them of some tactical decisions they may have made. Howie JA, with whom Sully and Simpson JJA agreed, stated as follows: '25. 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 will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused.'
3. There is nothing put before me to suggest that there has been any delay by the Prosecution in making the application for amendment. The matter does not yet have a hearing date, and in those circumstances I am satisfied that the defendant will have sufficient time to consider the additional particulars that are the subject of the amendment. I accept that the Prosecutor did not act with any delay after receiving the two additional reports upon which the amendments are based, and as such delay is not a factor weighing against allowing the amendment.
4. Similarly, the defendant has not put before me any evidence that would point to any great prejudice to them if the amendment was allowed. As previously stated, the defendant has entered a not guilty plea and the matter has not been set down for trial. The charge in the summons is not being varied, there is simply an addition to the particulars. The submission that the defendant makes with regard to the Prosecution only having to prove one element of the charge to successfully prosecute the defendant, does not to my mind constitute 'irremediable prejudice'.
5. The Court of Appeal in Rockdale Beef (supra) stated that in order for an amendment to be prejudicial, it must amount to 'irremediable unfairness' (per Basten JA) at [133]. The Court of Appeal in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 also described prejudice as 'irreparable procedural unfairness'. That concept was discussed by Basten JA in rejecting the contention that the pleadings could not be cured by an amendment under the CP Act, where his Honour stated at [80]: 'In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they have not faced trial yet or pleaded to the charges)…the contention should be rejected.'
6. I am satisfied that no irremediable prejudice will flow to the defendant if I allow the amendment, particularly in circumstances where the amendment sought is merely an amendment to the particulars of the offence.
7. Another factor that I may have regard to in exercising my discretion is the interests of justice. There are public interest considerations underpinning the WHS Act, particularly in ensuring that offences alleged under the WHS Act are properly heard and determined, including that all measures contended by the Prosecutor reflecting the failures on the part of the Defendant to comply with its duty under the WHS Act are properly put before the court.
8. This was regarded as a significant factor by Staunton J in WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited [2006] (supra). In that matter her Honour concluded at [74], having regard to the interests of justice, that the exercise of discretion to take into account public policy together with public interest considerations underpinning the legislation in ensuring offences alleged under the OHSA were heard and determined, weighed in favour of allowing the amendments to the Summons in that matter. Her Honour ultimately concluded that the amendments were permissible within the proper application of section 16(2) of the CP Act (at [61]).

CONCLUSION

1. In all the circumstances I consider that the Summons can be amended without any irremedial unfairness to the defendant in the form of the terms of the proposed Amended Summons.

ORDERS

1. I make the following orders: 1. I grant leave to the Prosecutor to amend the Summons issued on 5 July 2019 in accordance with the terms of the proposed Amended Summons which is the annexure marked "B" to the affidavit of Rhys Wilkins affirmed on 16 March 2020 and marked as Exhibit A on this application. 2. Costs of the motion be costs in the cause.

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: 19 June 2020