SafeWork NSW v Solveco Pty Ltd; SafeWork NSW v Brent Martin Lawson; SafeWork NSW v Tiberiu Orden;

Application to Amend the Summonses

1. The prosecutor filed a Notice of Motion on 22 June 2021 seeking leave to amend all three Summonses in accordance with the terms of proposed amended pleadings annexed to the affidavit of Julian O'Connell sworn on 22 June 2021.
2. While the original pleadings focused only upon Mr Hender, the proposed amended pleadings focus upon Mr Hender and Mr Forsyth. The risk to workers is proposed to be pleaded as follows: "The risk was the risk of workers, in particular Mr Hender and/or Mr Forsyth, suffering serious injury or death as a result of fire and/or explosion arising from the mechanical shredding of aerosol cans."
3. Other paragraphs of the pleadings which had previously referred only to Mr Hender are proposed to be amended to refer to both Mr Hender and Mr Forsyth. Proposed par 11 reads: "As a result of the defendant's failures, workers, in particular Mr Hender and/or Mr Forsyth, were exposed to a risk of death or serious injury."
4. The affidavit of Mr O'Connell annexes a letter which he wrote on 16 June 2021 to the solicitor for the defendants. The letter said: "In our view, this amendment does not give rise to any relevant prejudice to the defendants. This is because the amendment does not involve any new evidence. Nor does it change the nature of the prosecution case. Rather, it is an amendment to bring the pleadings into line with the prosecution case and the evidence served in the Prosecution Brief and Tender Bundle. The Prosecution case is that Mr Forsyth was the operator of the shredder machine and that, but for Mr Forsyth walking away from the shredder at the time of the incident to reset the power at another section on the premises, Mr Forsyth would have been fatally or seriously injured when the explosion or fire occurred."
5. That letter asked the solicitor for the defendants to indicate whether there was any objection to the proposed amendments and to identify any prejudice said to arise.
6. The solicitor for the defendants responded by a letter dated 21 June 2021. The letter advised that the defendants objected to the amendment of each Summons as proposed. Nothing was said about prejudice.

The Scope of the Prosecution Case

1. Pursuant to s 229B(1)(b) of the WHS Act, proceedings for an offence against the WHS Act or the regulations are to be dealt with summarily before the District Court in its summary jurisdiction.
2. Pursuant to s 246(1)(a) of the Criminal Procedure Act 1986 (NSW) ("the CP Act") a prosecutor may apply for an order for the person alleged in the application to have committed an offence that may be dealt with summarily by the court to appear at a time and place specified in the order to answer to the offence charged in the order.
3. Section 246(2) of the CP Act provides that the application "must be in accordance with the rules".
4. The relevant rule is r 53.26 of the District Court Rules 1973 (NSW). This provides: "53.26 COMMENCEMENT OF PROCEEDINGS (1) Proceedings under section 246 must be commenced in the Court by an application in the approved form for the issue of a summons or for the issue of a warrant for apprehension. (2) The summons or warrant for apprehension must be in the approved form and must be lodged with the application. (3) A Statement of Facts in respect of the offence signed by the prosecutor applying for an order under s 246 is to be lodged with the application. (4) …"
5. The prescribed form is headed "Application to Commence Proceedings for a Summary Offence in the District Court of New South Wales". The form refers to s 246 of the CP Act and sets out details of the prosecutor and details of the alleged offender. The form contains the following: "Grounds for application: The person named in this application has committed the offence described in the attached summons, being an offence that can be dealt with summarily before the District Court. A statement as to the alleged facts upon which the Applicant relies is attached."
6. The three Summonses in the present case follow the layout of the prescribed form. The first part of each document sets out a time for attendance before the District Court, the details of the defendant and the details of the offence. The date of the offence is said to be 31 July 2017 and the place of the offence is the business address of Solveco at St Marys. The particulars are said to be "attached as 'Annexure A'".
7. In each Summons, Annexure A sets out particulars of the offence under the following sub-headings: 1. Particulars of each defendant's duty under the relevant section of the WHS Act. 2. Particulars of the risk to workers. 3. Particulars of each defendant's failure to comply with its or his duty under the relevant section of the WHS Act.
8. Each Summons has an attached Statement of Facts, as required by the Rules.
9. Thus a defendant is informed of the case brought by the prosecutor by reading the Summons and the attached Statement of Facts.
10. While the application made by the prosecutor, on its face, appears to be a fairly simple matter of whether leave ought to be granted to amend the three Summonses, the application throws up a much wider issue. Senior counsel for the defendants contends that the prosecutor is attempting to run a much wider case than that delineated by the pleadings and particulars. Senior counsel for the prosecutor asserts that the case upon which he has opened for two and a half days is a case within the bounds of the three Summonses and their attached Statements of Facts.
11. I must examine these competing contentions to determine the fate of the application to amend the Summonses. It is important that I determine this wider issue on this application for another reason. The parties have radically different views as to the case which has been brought against the defendants pursuant to the pleadings and the particulars. At this early stage of the trial I need to determine whether the case as opened is available to the prosecutor.

Power to Amend a Summons

1. Section 20(1) of the CP Act provides as follows: "(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. Section 15 of the CP Act provides that the word "indictment" includes "any other process or document by which criminal proceedings are commenced". Thus s 20 applies to the amendment of a summons as well as the amendment of an indictment.
3. Section 21 of the CP Act gives the power to amend an indictment if the court is of the opinion that the indictment is defective. That is not the present case, and the application has clearly been made under s 20. The power to grant leave under s 20 must be exercised "appropriately" - Rajendran v R [2010] NSWCCA 322 at [36].
4. Senior counsel for the prosecutor submitted that the discretion in s 20 involves consideration of the interests of justice (T 186/40).
5. Senior counsel for the defendants submitted that what needs to be determined is the interests of justice and the public interests underpinning the WHS Act (T 167/33). He also submitted that consideration of the exercise of the discretion to grant leave to amend must be against the background of affording procedural fairness to the accused and preserving a fair trial between the parties (T 171/32).
6. Senior counsel for the defendants also submitted that "late amendment would only be permitted in rare circumstances" (T168/20). No authority was cited for that proposition and it runs contrary to the appellate authority considered below.
7. I have obtained assistance in determining whether or not it would be "appropriate" to grant leave to amend the Summonses by examining the approach taken by the Court of Criminal Appeal in three cases. Both sides filed Written Submissions in relation to these cases.
8. In R v Sepulveda [2003] NSWCCA 131 the Court of Criminal Appeal considered the power to grant leave to amend an indictment. At the time that power was contained in s 63A of the CP Act, but the modern day equivalent is s 20 of the CP Act. The accused had been charged with nine counts of sexual offences against one victim and three counts of sexual offences against a second victim. There had been a committal hearing which resulted in the matter going to trial. An ex officio indictment was presented at trial containing 21 counts. Six were counts of sexual offences against the first victim, two were counts of sexual offences against the second victim and 13 were counts of sexual offences against a third victim. There had been no committal hearing in respect of the charges relating to the third victim.
9. The accused opposed the grant of leave to amend the indictment, submitting that he would be unfairly prejudiced because the counts concerning the third victim had not been the subject of committal hearings and he had been denied the opportunity to cross-examine the third victim.
10. The trial judge recognised that there was some prejudice to the accused in relation to the third victim, in the absence of a committal hearing. His solution was to grant leave to present the amended indictment, but to conduct a "Basha" inquiry in respect of the counts involving the third victim. Such an inquiry is a pre-trial hearing or voir dire where the accused can cross-examine any new witness produced by the prosecution after the committal, if they would otherwise be prejudiced - R v Basha (1989) 39 A Crim R 337.
11. The Court of Criminal Appeal commented that what the trial judge was really doing was not giving leave to present an amended indictment, but granting leave to amend the first indictment on the basis that s 63A applied - at [26]. Justice Giles said that the Basha inquiry proposed by the trial "would meet any injustice to the appellant from proceeding on the new counts in the indictment without committal proceedings" - at [64]. He also discussed whether the trial could be adjourned if matters came out requiring investigation, describing such a course as "available but not ideal" - at [68].
12. Justice Dunford agreed with Justice Giles and said at [77]: "I also agree that the grant of leave required the exercise of a judicial discretion, the primary issue in the exercise of such discretion being whether the accused would be unfairly prejudiced by the absence of committal proceedings in relation to the ex officio counts, and whether any such prejudice could be overcome by another procedure. His Honour concluded that any 'latent injustice' (as he described it) could be overcome by the holding of a 'Basha' type enquiry prior to the trial."
13. Justice Dunford said that holding a Basha inquiry prior to the trial allowed time for further investigations or an adjournment of the trial, if necessary - at [78].
14. In R v Lykouras [2005] NSWCCA 8 a trial judge had granted leave to amend an indictment under s 20 of the CP Act. The effect of the order was to permit the prosecutor to add a further and alternative count to the indictment. The original charge was one of driving a motor vehicle causing grievous bodily harm when at the time of the impact the driver was under the influence of a drug.
15. When the accused came to trial the Crown made an application to amend the indictment to add a further count in the alternative being driving a motor vehicle and causing grievous bodily harm when at the time of the impact the driver did drive in a manner dangerous to another person or persons.
16. There was an issue concerning whether or not the Crown could prove that the driver was under the influence of a drug. For that reason the Crown decided to seek leave to add an alternative charge to the indictment.
17. The Court of Criminal Appeal said at [17]: "The real dispute between the parties is whether it was unfair for the Crown to lay the further charge in all the circumstances of this particular matter".
18. The Court of Criminal Appeal said at [21]-[22]: "21 A substantial part of the applicant's argument in this regard seems to me to be based upon an asserted right to seek to have the charge dismissed upon a technicality without the Crown frustrating that right by laying a charge that may have to be determined on its merits. In my view there is no such right. It may be that the applicant feels aggrieved by the Crown's attempts to strengthen the case against him because he believed, rightly or wrongly, that the charge initially laid by the Crown would fail at the outset because the evidence of the taking of the blood sample and its subsequent analysis would be rejected by the Court. But an accused person has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of his guilt determined by reference to a single charge. It cannot be either oppressive or unfair, in my opinion, for the Crown simply to seek to prove a charge in more than one way, or to rely upon alternative charges arising from the one set of facts. This is so regardless of whether the alternative or additional allegation is raised before or after the trial commences. 22 If during the course of a trial, the Crown seeks to prove that the accused committed the offence charged in some way other than was opened to the jury or other than is set out in the particulars, the question that arises is whether the new allegation has caused the trial to become unfair because, for example, the accused has been deprived of the opportunity of meeting it by the late raising of the new allegation. If the unfairness cannot be addressed by, for example, witnesses being recalled or a short adjournment being granted to the accused, the trial judge will abort the trial and discharge the jury."
19. At [23] the Court of Criminal Appeal said: "23 There is, of course, a rule of practice that precludes the Crown from raising an alternative count late in a criminal trial. But this rule is concerned with ensuring a fair trial and not with limiting the manner in which the Crown can proceed against an accused."
20. The Court of Criminal appeal said at [25]-[27]: "25 The point is that both the trial judge and this Court are concerned with ensuring a fair trial to the accused and not with some broader concept of unfairness to restrict the Crown in its conduct of the prosecution as might be expected in a sporting contest. I know of no occasion where a Court has refused to allow the Crown to rely upon an alternative count or an alternative way of proving the offence charged simply because to do so might deprive the accused of the chance of a complete acquittal. I do not believe that a court has such a power. 26 In the present case all that has happened is that, albeit very late in the proceedings, the Crown has sought to rely upon a further and alternative allegation of a criminal charge arising from the same facts and circumstances as that which gave rise to the initial charge brought against the applicant. As the Crown can rely upon an alternative count raised for the first time during a trial where to do so would cause no prejudice to the accused, I have difficulty in understanding how the Court can refuse to allow it to do so before the trial commences. Of course, the earlier the alternative allegation is raised, the less likely is it that the new allegation will prejudice the right of an accused to a fair trial. 27 In so far as the applicant contends that it was unfair or oppressive for the Crown to seek to frustrate his chance of being acquitted on the charge as initially laid by bringing an alternative count, the application is completely without merit. In my view it would be a very rare case indeed where a court would refuse to allow the Crown to amend an indictment before the trial commences in order to add an alternative count unless the Court is satisfied that to permit the amendment would result in prejudice to the fair trial of the accused on the amended indictment." (Emphasis added)
21. In Rajendran v R [2010] NSWCCA 322 the Court of Criminal Appeal was considering an order made by a trial judge, during the running of the trial, granting leave to amend an indictment.
22. The accused had been charged with sexual intercourse without consent. Part of the charge was that there were circumstances of aggravation. The relevant section gave three alternatives for such circumstances of aggravation: intentionally or recklessly inflicting actual bodily harm on the alleged victim "at the time of, or immediately before or after, the commission of the offence".
23. The original form of the indictment was that the accused had inflicted actual bodily harm on the victim during the act of sexual intercourse without consent.
24. During the running of the trial it became apparent that while the accused had inflicted bodily harm upon the victim, the harm had not been done at the time of the commission of the offence, but immediately before sexual intercourse had taken place.
25. Upon this evidence emerging the Crown sought leave to amend the indictment to change the allegation from inflicting actual bodily harm during the commission of the offence to inflicting actual bodily harm immediately before the commission of the offence. Such application was refused. The Crown then applied to amend the indictment to remove the allegation of inflicting actual bodily harm, which removed the allegation of circumstances of aggravation.
26. At [36] the court said: "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."
27. At [45] the Court of Criminal Appeal recorded that the trial judge had rejected the application to amend the indictment by alleging that the circumstance of aggravation occurred "immediately before" the offence and not during the offence. This was because the trial judge "accepted defence counsel's claim that, had the words been in the indictment initially, he might have cross-examined differently".
28. The actual challenges on appeal to the rulings of the trial judge are not relevant to the present dispute, but what is recorded in [45] of the judgment is a recognition that in considering an application for leave to amend a charge, the court must take into account whether some prejudice has been occasioned to the defendant.
29. From the above cases I draw the following principles: 1. The primary issue in the exercise of the discretion to grant leave to amend a charge is whether the defendant would be unfairly prejudiced. 2. The court should consider whether any such prejudice could be overcome by another procedure. 3. A defendant has no right to have a charge prosecuted on one particular factual basis and no other, nor to have the question of guilt determined by reference to a single charge. 4. The earlier an allegation is raised, the less likely it is that the new allegation will prejudice the right of an accused to a fair trial. 5. It would be a very rare case indeed where a court would refuse to allow the prosecutor to amend an indictment before the trial commences unless the court is satisfied that to permit the amendment would result in prejudice to the fair trial of the accused on the amended charge. 6. While s 20 is framed in the negative, it nevertheless confers power upon a court to permit amendment to an indictment. 7. The circumstances in which the leave may be granted are not confined by the section, although the discretion must be exercised appropriately.

Submissions for the Defendants

1. The defendants perceive that the case opened by senior counsel for the prosecutor, and the case to be understood from the proposed amended Summonses, is a broader case than was disclosed in the original pleadings. It was submitted that the emphasis in the original Summonses was upon Mr Hender, the work he was doing, the area in which he was working, and the electrical connections to his equipment being the pressure washer and the hot water heater (Tcpt 169/23-170/46). Further, the spark which ignited the explosion of flammable gases was said by the prosecutor to have been probably caused by Mr Hender turning off the electrical switch on the hot water heater.
2. Senior counsel for the defendants submitted that the original Summonses were "confined to the pressure washer" (Tcpt 170/48). He also submitted that the charge (and indeed the evidence served) was confined to an ignition point in and around the pressure washer and the hot water heater operated by Mr Hender (Tcpt 171/36). The original charge was said to have directed the attention of the defendants "specifically to the case about Mr Hender and the pressure washing and not a wider or more general case" (Tcpt 172/10). Senior counsel submitted that this "wider" case included the notion that there were potential ignition sources besides the pressure washer and the shredder, and there was a risk to Mr Forsyth "inherent in the operation of the shredder" (Tcpt 172/46-50). He described these matters as constituting "an entirely new case" (Tcpt 173/18) and said there was a "proposed widening of the case".

Submissions for the Prosecutor

1. Senior counsel for the prosecutor submitted that the approach of the defence was "focussing unduly on the incident itself and its direct cause" (Tcpt 175/1). He submitted that such an approach did not "pay due attention to the pleaded risk" (Tcpt 175/3). Senior counsel for the prosecutor characterised the approach of the defendants as complaining that the prosecution case is not what they had anticipated it would be (Tcpt 175/35). He pointed out that what was required was a prospective analysis, not a retrospective analysis, of the risk that there might be ignition of gas which emanated from the shredder (Tcpt 176/8-16).
2. During the course of opening, senior counsel pointed out that for an explosion of the type which occurred in the incident, there had to be three elements present: flammable gas, an ignition source and oxygen. The flammable gas was alleged to have come from the work done by Mr Forsyth - shredding aerosol cans and thus releasing a cloud of flammable vapour which was heavier than air and which could travel to other areas in the factory. On the prosecution case the most probable ignition source was a spark caused when Mr Hender switched off the hot water heater. However the prosecution case was that there were many other possible electrical ignition sources, thus creating a risk of an explosion of flammable gases. Oxygen in the surrounding air was a given.
3. Senior counsel for the prosecutor accepted that the prosecutor was bound by the particulars which it had given. He pointed out that the particulars did not limit the risk to a particular ignition source (Tcpt 187/10). Senior counsel for the prosecutor also accepted that there was no onus on a defendant to seek further and better particulars (Tcpt 187/14). He submitted that the prosecution had been opened consistently with the particulars in the charges "even if it is inconsistent with their presumption of what the case would be" (Tcpt 187/19).

Consideration of the Present Limits of the Prosecution Case

1. Paragraph 10 of the Solveco Summons sets out particulars of Solveco's failure to comply with its duty under s 19(1) of the WHS Act. It does so by pleading a series of measures which were reasonably practicable to eliminate the risk, or alternatively if it was not reasonably practicable to eliminate the risk, to minimise the risk. Some of the particulars do relate to Mr Hender and the equipment he was using: particulars (a)(v), (f) and (h).
2. Some of the particulars relate to ignition sources which are not specifically confined to the pressure washer and the hot water heater: particulars (a)(iii), (c) and (e).
3. Some of the particulars specifically deal with the creation and uncontrolled release of flammable gases: particulars (a)(iv), (a)(vii), (c), (d), (e), (f), (g) and (i).
4. Some of the particulars relate to the identification and classification of hazardous area "within and around the shredder" in accordance with an Australian Standard: particulars (a)(i), (a)(ii), and (e).
5. The Statement of Facts which forms part of the Solveco Summons refers in par 12 to a "destruction area" which clearly includes the shredder itself, as well as the area where Mr Hender was working - par 14.
6. Paragraph 33 of the Statement of Facts says that "the shredder being used did not have components installed suitable for hazardous areas and was not suitable for safely shredding aerosol cans containing flammable gas". Paragraph 33 does not confine itself to an allegation concerning release of flammable gas and is wide enough to be understood as also referring to any relevant electrical equipment or connections within the shredder.
7. Paragraph 38 of the Statement of Facts says that the Job Safety Analysis did not, inter alia, ensure that no ignition sources were brought into the area where flammable vapours might be present. There is no indication in par 38 that such possible ignition sources are limited to the equipment operated by Mr Hender. Flammable vapours started at the shredder and spread more widely throughout the product destruction area.
8. Paragraphs 45 and 47 of the Statement of Facts do specifically refer to Mr Hender's equipment. By contrast par 51 speaks generally of a failure to provide safe electrical equipment. So does par 62.
9. It is necessary to read the entire Summons and its associated Statement of Facts as a whole, rather than just focusing upon a few paragraphs or a particular event.
10. It is plain that the risk required both the uncontrolled release of a flammable gas and the potential for it to explode if there was an ignition source. The prosecutor's pleading does not confine itself just to the explosion which did occur, but deals with the wider risk of explosion. The pleading does not confine itself spatially to the place where Mr Hender was working. It refers several times to the product destruction area. This includes the shredder itself. The pleading does not confine itself temporally to the precise moment when Mr Hender switched off the hot water heater. Instead the risk is one which commenced when Mr Forsyth commenced shredding the aerosol cans, and which ran right up to moment when a spark ignited the explosion. That Mr Forsyth was not standing right beside the shredder when the fire took hold was, as the prosecutor put it, pure happenstance. A spark at an earlier time would have certainly led to his death or serious injury.
11. There were no particulars supplied to limit the matters pleaded in each Summons and Statement of Facts. I find that the prosecutor is not limited in the fashion submitted by senior counsel for the defendants.

Conclusion on Leave to Amend

1. Senior counsel for the prosecutor submitted that he needed the amendment "as a matter of fairness and to avoid any lack of certainty about the nature of the prosecution case" (Tcpt 157/47). He wanted to make it clear that it was part of the prosecution case that Mr Forsyth was also placed at risk (Tcpt 157/49).
2. The application for amendment immediately raised the dispute between the parties as to the width of the prosecution case. I have accepted the prosecutor's submissions on that topic and I reject the narrow construction put by the defendants. I accept the submission of senior counsel for the prosecutor that the defendants have made assumptions about the case they have to meet, but that those assumptions are incorrect.
3. The trial is at an early stage. Senior counsel for the prosecutor has taken two and a half days to carefully outline his case, including giving pinpoint references to many of the documents in the five volume prosecution Tender Bundle.
4. I find that the amendment is necessary since it has led to the detailed submissions considered in this judgment. The dispute between the parties has thus come to a head, at a relatively early stage in the trial, as a result of the application to amend. Since I have found that the prosecution case has always been wide enough to encompass consideration of Mr Forsyth being exposed to risk, I propose to grant the amendments sought in relation to each Summons.
5. Since the case which was opened was always the case available to the prosecutor, there is no prejudice arising from the amendments. Senior counsel for the defendants did submit that prejudice arose because the equipment involved had since been disposed of and so could not be inspected for the purpose of an expert report. That submission was of course based upon the foundational proposition that the amendments were going to widen the case, or even plead a new case. I have found to the contrary.
6. The defendants now have certitude as to the width of the prosecution case. Whether that means that they can immediately meet that case, given the bona fide view they have taken that the prosecutor's case was narrower, will be a matter requiring consideration of this judgment and the giving of legal advice.
7. Even if I had found that the prosecution case was the narrower case perceived by the defendants, I would have granted leave to amend. A defendant has no right to have a prosecution brought upon a particular factual basis - see par 50(3) above. Given the public interest aspect of WHS Act prosecutions and given that the amendments are sought at an early stage of the trial, the amendments would be granted even if they did widen the prosecution case beyond the original pleading and particulars (contrary to my findings above). Any prejudice to the defendants could be met by giving the defendants time to consider their position and apply for an adjournment of the trial if so advised. No documents have yet been tendered and no witnesses have yet been called. Procedures could be adopted for the defendants to have a fair trial - see par 50(2) above.

Orders

1. My orders in each of the three matters are: 1. Grant leave to the prosecutor to amend the Summons in the manner proposed in the annexures to the affidavit of Mr O'Connell dated 22 June 2021.

Amendments 15 December 2021 - Citation in par 42, corrected 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: 15 December 2021