SafeWork NSW v Saunders Civilbuild Pty Ltd

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) 177 CLR 378, 392-3; Jago v District Court (NSW) (1989) 168 CLR 23; Barton v The Queen (1980) 147 CLR 75.
2. This power is a discretionary one and will only be exercised to stay criminal proceedings in the most exceptional circumstances: Barton at 116; Jago at 31 (Mason CJ), at 75 (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 the trial would be unfair: Barron v Attorney-General (1987) 10 NSWLR 215.
5. The categories of factual situations in criminal proceedings that 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 to relieve against its unfair consequences: Barton at 111; Jago at 34 (Mason CJ), at 49 (Brennan J), and at 77-78 (Gaudron J).
7. The power to grant a stay must be exercised in accordance with two fundamental policy considerations, being: 1. that the public administration of justice requires the court to protect its functions by preventing abuse of process; and 2. that unless the court does so, there will be an erosion of public confidence in the court: Williams v Spautz (1992) 174 CLR 509, 520.
8. In determining the question of whether to grant a permanent stay, the court must balance three distinct and potentially competing considerations: 1. the interests of the accused; 2. the public interest of the community that those charged with serious criminal offences are bought to trial and those guilty are convicted; and 3. the need to maintain public confidence in the administration of justice: Walton at 395-6; Jago at 33 (Mason CJ), and at 49-50 (Brennan J).

The use of the "and/or" conjunction

1. Use of the "and/or" conjunction in a pleading is capable of giving rise to a series of additional or alternative allegations and can thereby affect the substance of the allegations: In the matter of Moage Ltd (in liquidation); Moage Ltd (in liquidation) v Joseph Grant Jagelman and Others [1998] FCA 296 (Burchett J). In Moage, the pleading related to the knowledge of a large firm of solicitors. His Honour described the offending paragraphs using the conjunction in the following terms: The possible permutations and combinations of what would be involved in a full statement of how the knowledge in question is alleged by this pleading to have been held by partners of Mallesons would require many pages to state. No respondent should be left to compute his alleged liability from such a complex of possibilities. In my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of the proceeding. In the present case, as has been explained, an almost endless series of additional and alternative allegations would be conveyed by an analysis of the claim made in this way.
2. The use of the conjunction has been described as "inviting trouble": Millen v Grove [1945] VLR 259 at 260 (Gavan Duffy J), and as an "elliptical and embarrassing expression which endangers accuracy for the sake of brevity": Fadden v Federal Commissioner of Taxation (1943) 68 CLR 76 (Williams J).
3. In St Clair v Timtalla Pty Ltd and another (No 2) [2010] QSC 480 at [14], Martin J stated: While the conjunction "and/or" is now almost a commonplace in commercial documents and some other forms of legal drafting, it should not be used in a pleading. Pleadings are intended to clarify and concentrate the issues in an action. They will not do that if the language used leaves open to reasonable construction a large number of permutations and combinations as occurs in this case.

Particulars

1. Section 233 of the Act provides: 233 MULTIPLE CONTRAVENTIONS OF HEALTH AND SAFETY DUTY PROVISION (1) 2 or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more health and safety duty provisions to be charged as a single offence. (3) A single penalty only may be imposed in relation to 2 or more contraventions of a health and safety duty provision that are charged as a single offence. (4) In this section "health and safety duty provision" means a provision of Division 2, 3 or 4 of Part 2.
2. An accepted purpose of particulars is to inform the defendant of the case that it will face and allow the court to link the evidence that is given to the allegations in the originating process: Johnson v Miller (1937) 59 CLR 467.
3. An accused must be informed of how the prosecution will prove that they committed the offence. This may include requiring the prosecutor to specify acts that will be relied upon to establish a charge. This involves an election by the prosecutor which will be binding on the determination of the case and will inform the admissibility of evidence sought to be led: S v The Queen (1989) 168 CLR 266 and Veysey v R (2011) 33 VR 277.
4. The rule against duplicitous counts rests on basic considerations of fairness, namely that an accused should know the case they have to meet: S v The Queen at 335 (Gaudron and McHugh JJ).
5. Adequate particulars are essential to an accused receiving a fair trial. The degree of particularisation required depends on the nature and circumstances of the offence and no single approach can be applied to every case: Veysey v R.
6. In relation to WHS prosecutions the appellate courts have identified a number of relevant matters. The starting point stated in Kirk is that the prosecutor must identify the measures that the defendant was required to take.
7. In Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344, the Court of Appeal stated at [50]: Equally, to characterise the act or omission constituting the offence as a 'measure' does not deny the possibility, in an appropriate case, of specifying the act or omission by reference to a standard described as 'adequate'. A failure to ensure an adequate system or step to achieve a particular outcome can also be described as a failure to have in place measures sufficient to achieve that outcome. If the outcome is sufficiently particularised, then it will be clear what was the act or omission alleged to constitute the offence.
8. Where the prosecution fails to particularise its case, there is a risk that the judge may provide an underlying narrative or structure to the evidence which was not in fact part of the prosecutor's case, thereby causing the judge to become an advocate for a party: Veysey v R.
9. The court has a common law power to order that the prosecutor provide any particulars that are necessary in the interests of justice: Johnson and Marchesi v Barnes [1970] VR 434. A failure to provide particulars can lead to the dismissal of the charge.

The Court's power to amend the Summons

1. Section 229B(1) of the Act provides that proceedings for offences are to be dealt with summarily before the Local Court or in the summary jurisdiction of the District Court.
2. Section 246 Criminal Procedure Act 1986 provides that a prosecutor may commence summary criminal proceedings in the District Court in accordance with the District Court Rules 1973 (the Rules). Rule 53.26 of the Rules provides that proceedings under section 246 Criminal Procedure Act 1986 must be commenced by the issue of a summons or a warrant for apprehension.
3. Section 15 Criminal Procedure Act 1986 provides that the term "indictment" includes any other processes by which criminal proceedings are commenced.
4. Section 20 Criminal Procedure Act 1986 provides: 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. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
5. Section 21(1) Criminal Procedure Act 1986 provides: 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.
6. Sections 20 and 21 of the Criminal Procedure Act 1986 have different purposes. Section 20 confers a discretionary power to permit an amendment and that power must be exercised appropriately. Section 21 is more complex. It requires the court to hold the opinion that the indictment is defective but that amendment can be made without injustice. That opinion is the basis on which the court's power to make an order for amendment is enlivened. The statute does not define what constitutes a defective indictment: Rajendran v R [2010] NSWCCA 322 at [36]-[38].
7. Leave should be granted to amend an indictment unless the accused would be irreparably prejudiced in meeting the amended charge and the loss of a tactical advantage is not sufficient to refuse a grant of leave: Borodin v R [2006] NSWCCA 83.
8. It is permissible to allow amendments of formal matters and substantive matters. A count may be substituted where the facts proved justify conviction under the amended count. The question that the court must answer in exercising the discretion is whether the amendment can be made without injustice: R v Stuart NSWCCA unreported 8 March 1996.

The relevant part of the pleading

1. Paragraphs [15]-[17] of the Summons provide as follows: [1] [15] The risk was the risk to workers, in particular Mr Williams and/or1 Mr Edwards, suffering serious injury or death as a result of falling from height whilst loading and/or2 unloading materials from the back of a truck and/or3 trailer of a heavy combination vehicle. [16] The defendant permitted Mr Williams and/or1 Mr Edwards to access the trailer of the heavy combination vehicle and/or4 the frames on the trailer and/or5 the load on the frames during preparation for and/or6 during the unloading of the packs of piles from the heavy combination vehicle. [17] The defendant failed to ensure so far as is reasonably practicable, the health and safety of workers in particular Mr Williams and/or1 Mr Edwards, in that it failed to take one or more of the following reasonably practicable measures to eliminate the risk to the health and safety of the workers or, alternatively, if it was not reasonably practicable to eliminate the risk, to minimise the risk to the health and safety of the workers: (a) Providing and implementing a safe work method or safe work procedure for the loading and/or2 unloading of materials, such as packs of piles, from heavy combination vehicles, such as Mr Edwards' heavy combination vehicle, including the following steps and/or7 requirements: (i) access to loads on the back of trucks and/or3 trailers must be obtained from the ground; and/or8 (ii) preparation of materials for the loading and/or2 unloading of materials including the rigging of loads, must be performed from the ground; and/or8 (iii) where access to the backs of trucks and/or3 trailers and/or5 onto loads, including the rigging of loads, is required in preparing for and/or6 during the loading and/or2 unloading of materials, appropriate fall prevention must be in place before access is obtained; and/or8 (iv) where work in preparation for and/or6 in the course of loading and/or2 unloading must be performed at height, appropriate fall prevention must be in place to address the risk of a fall. For the purposes of fall prevention, appropriate fall protection may include a purpose built, solid construction or work platform, appropriate forms of temporary work platforms, handrails, retractable handrails, fall-arrest system and/or9 scaffolding. (b) Ensuring, as far as is reasonably practicable, that where its workers are engaged in the loading/unloading of materials from vehicles, including the loading and/or2 unloading of materials such as packs of piles from the subject heavy combination, those workers were adequately instructed and/or10 trained in a safe work method or procedure for the unloading of such materials, which set out the step by step requirements to be followed in preparation for and during the loading and/or2 unloading of materials. (c) Providing adequate supervision for its workers engaged in the unloading of materials from heavy combination vehicles, including the loading and/or2 unloading of materials such as packs of piles from the subject heavy combination, so as to ensure as far as is reasonably practicable that its workers were not exposed to a risk of falling from height whilst engaged in loading and/or2 unloading materials from vehicles. (d) Consulting, co-operating and co-ordinating with other duty holders at the site, in particular Mr Edwards, to ensure that the above measures and processes were implemented and enforced during loading and/or2 unloading of materials from heavy combination vehicles.

The defendant's submissions

1. The defendant's primary submission was that the conjunction was used 26 times in paragraphs [16]-[17] of the Summons, giving rise to 326 (2.5 trillion) possible permutations arising from the three options of each occurrence of "and/or". The defendant's position was that the use of the conjunction within the separate measures shifted the construction of the Summons away from the five or six measures pleaded to an extreme number of alternate permutations. The defendant did not dispute that the prosecution could rely on the establishment of one particular of breach of duty to make out its case.
2. The defendant contended that the uncertainty in the pleading was so significant that this was an exceptional case in which it was appropriate to order a permanent stay of the proceedings.
3. On this argument, the defendant submitted at paragraph [57] of its written submissions: …[t]he failure of the prosecutor was the failure to identify, out of a number of possible permutations of facts, each capable of amounting to the commission of the same offence, the particular set of facts on which the charge was based (citing Hannes v DPP [2006] NSWCCA 373 at [394]). The same difficulty arises with the summons in these proceedings, given the Prosecution's repeated use of the dual conjunctive and disjunctive phrase 'and/or' throughout the summons and the trial, and the numerous different factual permutations.
4. The defendant submitted that this was not a case in which it is appropriate to grant the prosecutor leave to amend because that may affect the evidence that has already been admitted, and the defendant may have conducted cross-examination differently or made different forensic decisions. Based on its primary submission, the defendant doubted that the prosecutor could now identify a charge that was certain and not duplicitous.

The prosecutor's submissions

1. The prosecutor submitted that a reading of the particulars of the charge as a whole pleaded a specific set of facts that gave rise to the offence, and that most of those facts had not been put in dispute in the course of the trial. Further, the facts relied on by the prosecutor and how they were said to make out the charge was referred to in detail in the opening.
2. The prosecutor pointed to admissions made by the defendant as to its knowledge of the risk and that it had trained its employees by giving a verbal direction that no one was to access the back of a truck during loading or unloading (the verbal direction).
3. In the event that the Court thought that amendment of the Summons was warranted, the prosecutor proposed a form of amendment.

Consideration

1. The defendant's primary submission fails to grapple with the language of the pleading. The defendant has not identified how the use of the conjunction in the Summons results in the consideration of 2.5 trillion alternative factual scenarios, other than mathematically. In each of the authorities relied on by the defendant, the use of the conjunction in the pleading gave rise to a large number of alternative allegations. However, for the reasons that follow, that is not the case here.
2. It must be remembered that an important principle in these cases is that the risk to be addressed is the general class of risks that a PCBU must provide for, rather than the specific risk that manifested itself in the incident: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6]. It follows that reasonably practicable measures that should have been taken by a PCBU to prevent a particular incident will usually have been necessary to prevent a variety of other scenarios that may be factually irrelevant to the incident that is the subject of the charge.
3. I will now turn to the use of the conjunction in the relevant paragraphs of the pleading by reference to the numerical labels in [38] above, as follows: 1. The first use of the conjunction is a reference to the person or persons who were exposed to the risk. An element of the offence is that a person was exposed to a risk of serious injury or death, but it is not necessary that there is an incident or that a person is injured: Kirk. A person can be identified by a class of persons such as persons at a workplace. No objection was taken to the evidence led by the prosecutor that both Mr Edwards and Mr Williams accessed the trailer of the heavy combination vehicle albeit onto different parts of the trailer. Section 233(1) of the Act permits the contraventions arising from the same set of facts exposing Mr Williams or Mr Edwards, or both of them, to the requisite risk to be charged as a single offence. 2. The second use of the conjunction is the most innocuous and the most repeated. It refers to the processes of loading and unloading, which were the times when a worker might access the back of a truck and be exposed to the hazard presented by a fall from height. A safe work method that focused only on unloading because that was the activity being undertaken at the time of the incident would not have controlled the risk during loading the truck. Prospectively, the defendant had to consider how the truck would be safely loaded and unloaded by reference to the risk that was present in both activities. 3. The third use of the conjunction is also innocuous. It refers to the fall from a truck or a trailer. Whilst the incident involved a heavy vehicle combination made up of a truck (the prime mover) and a trailer, it is foreseeable that the defendant also had cause to load and unload other trucks, including for example flatbed trucks, in which the rear load carrying area is fixed to the truck and is not properly described as a trailer. The third use is intended to add a reference to an elevated level from which a worker could fall. 4. The fourth use of the conjunction is also not problematic. Like the third use, it seeks to include another elevated level from where a worker could fall, being the U frame on the trailer. 5. The fifth use of the conjunction is also not problematic. Like the third and fourth uses, it seeks to include another elevated level from where a worker could fall, being the top of the load. 6. The sixth use of the conjunction refers to the process of preparation for unloading and does not cause any uncertainty. This would include, for example, providing that a worker was not to climb onto the back of a truck to undo load restraints as part of the preparation necessary to unload the truck, which would give rise to the risk of a fall as much as if the worker climbed onto the back of a truck during the task of unloading. 7. The seventh use of the conjunction relates to whether the elements of the safe work method are steps or requirements. In my view, the matters set out paragraph [17(a)] are requirements by virtue of the use of the word "must" in each of the sub-particulars. The use of the word "steps" is superfluous and no prejudice would arise if the words "steps and/or" were deleted from the chapeau to paragraph [17(a)]. 8. The eighth use of the conjunction makes it clear that the sub-particulars of paragraph [17(a)] are pleaded in the alternative. The defendant accepted that this was appropriate and it does not matter if it is achieved by the use of the conjunction or by some other form of words. 9. The ninth use of the conjunction is a quote from the "Managing the Risk of Falls at Workplaces" Code of Practice (the Falls Code) published by SafeWork NSW, which is an approved Code of Practice under s 274 of the Act. Those words were also adopted by the defendant in the Safe Work Method Statements (SWMSs) that it adopted after the incident. The use of the conjunction in that context is a reference to the possibility that a number of control measures might need to be deployed in combination to alleviate the risk of a fall. 10. The tenth use of the conjunction refers to the need for the defendant to provide training or instruction to its workers as to the safe work method for the loading and unloading of trucks. The need to provide training or instruction is referred to in section 19(3) of the Act. The pleading is that it was reasonably practicable for the defendant to provide training or instruction to the workers as to the safe work method. In this context, training and instruction have the same meaning. The evidence is that the defendant did not provide either, and it is difficult to see how the alternatives provided for by the conjunction matter in those circumstances.
4. I am not satisfied that the use of the conjunction in the relevant parts of the pleading gives rise to any prejudice to the defendant, because it has not been demonstrated that the pleading creates uncertainty or is duplicitous.
5. I am fortified in this conclusion by reference to the evidence. This is a relatively simple case. The prosecution alleges that the defendant should have: 1. implemented the safe work method by amending its SWMSs in the way that it did after the incident; 2. trained its workers, being its employees and contract truck drivers, on that safe work method, by reference to the way that it trained all workers on 21 February 2018; 3. supervised the workers, where it was reasonably practicable to do so, to ensure that they were not exposed to a risk of a fall during the loading or unloading of trucks, such as by enforcing the verbal direction; 4. consulted with its contract drivers, such as Mr Edwards, to ensure that the safe work method was implemented and enforced.
6. If I am wrong in my conclusion at [49] above, this is an appropriate case to grant leave to amend to the prosecution.
7. For completeness, I note that the prosecutor's proposed amendment has a number of problems. However, I am of the view that each of the problems identified could be remedied without causing any prejudice to the defendant. First, the proposed amendment falls foul of the principle set out in [47] above by referring only to the unloading of materials such as the piles from heavy combination vehicles, rather than the loading or unloading of trucks or trailers. Second, the deletion of the "and/or" conjunction after each of the sub-particulars to paragraph [17(a)] may remove the ability to prove those matters as alternatives. Third, the additional reference to the standard "as far as is reasonably practicable" in paragraph [17(b)] is confusing.

Orders

1. The defendant's application for a permanent stay is refused.

Endnote

1. I have emphasised all of the uses of the conjunction in the relevant paragraphs and labelled the different uses of the conjunction by reference to its meaning in the context of the pleading. I will return to analyse those various meanings later. 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: 05 October 2021