Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady

Industrial Relations Commission (NSW)|2003-07-01|Before: Staunton J, Mr J, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady [2003] NSWIRComm 219 PROSECUTOR: Stephen Finlay McMartin DEFENDANTS: PARTIES : Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady.

FILE NUMBER: IRC 3199; 3200; 3202; 3203; 3208; 3209; 3211; 3212; 3214; 3215; 3220; 3221; 3222; 3223; 3225; 3226; 3227; 3229; 3230; 3231; 3233; 3234; 3235; 3237; 3238; 3239; 3241; 3242; 3243; 3245; 3246; 3247 and 3249 of 2000 CORAM: Staunton J CATCHWORDS : Occupational health and safety - proposal by prosecution to vary summonses - whether that proposal created fresh charges and were statute barred - whether identity of person exposed to potential risk is an essential legal element of offences under s15(1) and s16(1) of the Act - provisions of s16(2) of the Criminal Procedure Act replacing s6 of the Supreme Court (Summary Jurisdiction) Act 1967 applying - essential legal elements of s15(1) and s16(1) offences go to a failure of employers system of work affecting all employees - identity of persons exposed to potential risk an essential factual ingredient of s15(1) and s16(1) offences - no new charges created - variation allowed. Occupational Health and Safety Act 1983 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 Industrial Relations Act 1996 Criminal Procedure Act 1986 (as amended by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001) Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2001) 102 IR 84 WorkCover Authority of New South Wales (Inspector Maltby) & anor v Abigroup Contractors Pty Ltd & Luis Bustamante (2003) NSWIR Comm 35 R v Saffron (1988) 17 NSWLR 395 at 446 R v Hush ex parte Devanny (1932) 48 CLR 487 CASES CITED : Ex parte Lovell, Re Buckley (1938) 38 SR 153 John L Pty Ltd v AG (NSW) 1987 163 CLR 508 Cooper v Coffs Harbour City Council (1997) 98 A Crim R 340 WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) NSWIR Comm 316 Taylor v Environment Protection Authority (2000) 50 NSWLR 48

HEARING DATES: 07/09/2003 DATE OF JUDGMENT: 07/21/2003

PROSECUTOR: Mr S Crawshaw SC Mr M Docking of counsel Mr A Slevin of counsel

SOLICITORS: Mr M Carrick Geoffrey Edwards & Co

DEFENDANTS: Oakbridge Pty Ltd; Mr R Porteous & Mr J Romcke

Mr S Rothman SC Mr G McGrath of counsel LEGAL REPRESENTATIVES: SOLICITORS: Ms F Inverarity Price Waterhouse Coopers Legal

DEFENDANTS: Mr F Alston; Mr M Coffey; Mr C Nicholls; Mr P Pritchard; Mr M Robinson & Mr T Shacklady

Ms W Thompson of counsel SOLICITORS: Mr J Rodney / Mr G Phillips Carroll & O'Dea

JUDGMENT: - 20 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM : Staunton J DATE: 21/7/2003

Matter No's IRC 3199/00, 3200/00, 3202/00 and 3203/00 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited

Prosecutions pursuant to s15(1) and s16(1) of the Occupational Health and Safety Act 1983

Matter No's IRC 3211/00, 3212/00, 3214/00, 3215/00, 3220/00, 3221/00, 3222/00, 3223/00, 3225/00, 3226/00, 3227/00, 3229/00, 3230/00, 3231/00, 3233/00, 3234/00, 3235/00, 3237/00, 3238/00, 3239/00, 3241/00, 3242/00, 3243/00, 3245/00, 3246/00, 3247/00, 3249/00.

Stephen Finlay McMartin and the following personal defendants:

3211/00, 3212/00, 3214/00, 3215/00, 3220/00, 3221/00: Richard Porteous; 3222/00; 3223/00, 3225/00: Phillip Pritchard; 3226/00, 3227/00, 3229/00: Michael Alston; 3230/00, 3231/00, 3233/00: Mark Robinson; 3234/00, 3235/00, 3237/00: Jonathan Romcke; 3238/00, 3239/00, 3241/00: Michael Coffey; 3242/00, 3243/00, 3245/00: Christopher Nicholls; 3246/00, 3247/00, 3249/00: Terence Shacklady.

Prosecutions arising under s50(1) of the Occupational Health and Safety Act 1983. Interlocutory Judgment NSWIRComm 219

1 The specific matters before me are part of a total of 52 Summonses laid by the prosecutor against two corporate defendants - the Newcastle Wallsend Coal Company Pty Limited (NWCC) and Oakbridge Pty Limited (Oakbridge) and eight personal defendant alleging offences arising under ss15(1), 16(1) and 50(1) of the Act.

2 The background to these prosecutions has already been briefly outlined by me in an earlier interlocutory judgment relevant to the overall proceedings (see NSWIR Comm 214 of 10 July 2003). I do not propose to repeat it here.

3 The issue now before me arises from correspondence sent by the prosecutor's solicitors to the respective defendant's solicitors on 4 June 2003. That letter with an attached schedule as well as follow up correspondence of 20 June 2003 confirmed the prosecutors intention to vary 33 Summonses relevant to the above-mentioned matters by adding the names of additional identified persons as persons subject to potential risk within the terms of the offences alleged.

4 By way of an example of the prosecutors intention, I refer to Matter No IRC 3199/00 where the alleged offence as charged states: Between about 16 September 1996 and about 13 November 1996 at the Gretley Colliery, Bulkara Street, Wallsend, New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, and in particular Darren Wayne Atkins, Edward Samuel Batterham, Dallas Bellamy, Clive Arthur Bernard, Leonard Robert Collins, Frederick Jay Franklin, David Clive Hardman, William Buchanan Gould Hegarty, Bernard Francis Brown, Alistair Buchanan McLean, Wayne Charles Nicholls, Ian Robert Nunns and Barry Neville Stewart, contrary to Section 15(1) of the Occupational Health and Safety Act 1983.

And the proceedings in respect of the offence are instituted pursuant to Section 49(4) of the Occupational Health and Safety Act 1983 .

5 The persons sought to be added to the above alleged offence as subject to potential risk are: John Riley, David Pugh, David Hern and Darryl Martin.

6 The Order made by the Court then states: Further details of the allegations against you are contained in the Further Particulars of Charge, a copy of which is attached.

The defendant was the registered holder of coal leases for the Gretley Colliery ("the Gretley mine") including Coal Lease No. 1343 dated 22 March 1994 that made reference to the Coal Mining Act 1973 , whereas the lease was granted pursuant to the Mining Act 1992 . 2. For the purposes of the Coal Mines Regulation Act 1982 the defendant was the owner of the Gretley Mine. 3. The defendant was the operator of the Gretley mine. 4. Between about 16 September 1996 and about 13 November 1996 the defendant employed Darren Wayne Atkins, Edward Samuel Batterham, Dallas Bellamy, Clive Arthur Bernard, Leonard Robert Collins, Frederick Jay Franklin, David Clive Hardman, William Buchanan Gould Hegarty, Bernard Francis Brown, Alistair Buchanan McLean, Wayne Charles Nicholls, Ian Robert Nunns and Barry Neville Stewart ("the employees"), at the Gretley mine. 5. There was a risk to the health and safety of the employees in that there was a risk of inrush of water and/or dangerous gases into the Gretley mine from the Young Wallsend coal workings. 6. Between about 16 September 1996 and about 13 November 1996 the employees and other mine workers were required to work on the development of a roadway (known as "C" heading) in an area of the Gretley mine called 50/51 panel. 7. 50/51 panel was being developed in the direction of the Young Wallsend coal workings. 8. The Young Wallsend coal workings were full of water and under ahead of pressure at the level of 50/51 panel. 9. The development work in 50/51 panel included the operation of a continuous mining machine ("the continuous miner") by the employees and/or other mine workers. 10. The defendant failed in any or all of the following aspects: a. Allowing the employees to work in the area of 50/51 panel and in particular in "C" heading. b. Allowing the operation and use of the continuous miner at the face of "C" heading. c. A failure to prevent mining operations in the area of 50/51 panel where it had failed to ascertain the location and extent of Young Wallsend coal workings. d. A failure to ensure that there was any adequate barrier between where the employees were working and the Young Wallsend coal workings. e. A failure to test drill, or cause test drilling to be performed, to maintain an adequate barrier from old coal mine workings namely Young Wallsend coal workings. f. A failure to test drill, or cause test drilling to be performed, to locate Young Wallsend coal workings. g. Allowing mining operations to proceed in 50/51 panel without draining the Young Wallsend coal workings. h. A failure to investigate, adequately or at all, the Deputies written reports on 1 November 1996, 4 November 1996 and 13 November 1996 and two oral reports on 4 November 1996. i. A failure to inform Deputies, the employees and other mine workers that 50/51 panel was heading towards the Young Wallsend coal workings. j. A failure to inform Deputies, the employees and other mine workers that the Young Wallsend coal workings were full of water and under a head of pressure. k. A failure to instruct Deputies, the employees and other mine workers to be vigilant in looking for signs of water make whilst working in 50/51 panel. l. A failure to take such action as may have been necessary in the interest of safety of the mine and the employees. 11. There was a causal nexus between the risk to the health, safety and welfare of the employees as dealt with in paragraph 5, and any, or all, of the aspects of the defendant's failures as dealt with in paragraph 10.

The proceedings in respect of the offence are instituted pursuant to Section 49(4) of the Occupational Health and Safety Act 1983. From the proceedings of the Inquest into the deaths of Edward Samuel Batterham, John Michael Hunter, Mark Kenneth Kaiser and Damon Murray and/or from the Coroner's report handed down on 7 July 1998, it appears that an offence has been committed against this Act.

8 I would anticipate that, in adding the names of the persons identified as being potentially exposed to risk, the prosecution would need to amend para [4] of the further particulars to also identify them as employees at the relevant time.

9 In essentially similar terms and on the same grounds, that is, as persons subject to potential risk, the prosecutor proposes to vary the other above-mentioned summonses.

10 In response to the defendant's strenuous and diverse objections to the prosecutors intention to vary the summonses in the manner proposed as advised in the 4 June correspondence, the prosecutor's solicitors responded on 20 June 2003 in the following terms: We wish to make it clear that we do intend to rely on the persons listed below as being subject to potential risk: The section 15 and 16 charges in these matters use the expression '...failed to ensure the health, safety and welfare at work of all its employees, and in particular ...' and '... failed to ensure that persons not in its employment and in particular ... ' respectively. The charges then list employees or persons not in employment. In our view, given the generality of the opening words, it is not necessary for the prosecution to amend the charges in order to rely on the persons listed below as being subject to potential risk. However, to the extent necessary, we do amend the particulars associated with those charges by including the persons listed below as being subject to potential risk. Alternatively, if the above is not correct, the below named employees and persons not in employment subject to potential risk can be included in the charges and/or particulars by being treated under section 6 of the Supreme Court (Summary Jurisdiction) Act 1967 as a variance according to the evidence expected to be led based upon the statements of the relevant individuals listed below and served by the prosecution in June 2000. Amendment under section 170(1) of the IR Act 1996 would only be necessary if the above position is not correct. In any event, we do not see any necessity for a notice of motion.

11 The defendants disputed the prosecutions contentions submitting that the prosecutors proposal to add the named persons amounted to an amendment to the charges and, as such, are out of time by virtue of s49(1) of the Occupational Health and Safety Act, 1983 (the Act).

12 In making that submission, the defendants acknowledged that if the prosecution's proposal amounted to an intention to vary or add particulars to the charge then it was a matter to which they could raise no objection except as to issues such as unfairness or prejudice that the Court would properly consider in any application for adjournment arising from the prosecution's variation.

13 Central to the issue before me it seems is the distinction to be drawn between the essential legal elements of an offence and the essential factual particulars of an offence as charged.

14 Before dealing with that issue, the arguments advanced by the prosecution were:

· there was no need to amend the respective charges given the generality of the statutory duties to be found in s15(1) and s16(1) relating as they do to 'all his employees' in s15(1) and 'persons not in his employment' in s16(1).

· there can be no relevant prejudice or unfairness to the defendants arising out of the prosecution proposals. The statements made and/or material relevant to the five persons identified were served as part of the prosecution brief in June 2000. That material was identified in the Coroners Exhibit List also provided to the defendants in June 2000. Reference to those documents does not raise any new matters.

· the notice given to the defendants on 4 June 2003 of the prosecutions intention to add the identified persons, a month in advance of the anticipated trial date, was fairly and properly in advance of the hearing.

· the prosecutor acknowledges that it was a mistake to not include the five identified persons in the first instance. They were persons identified and known to be working as employees or non-employees on one or more of the relevant afternoon shifts from about September 1996 onwards.

· in the alternative, the prosecution submits that the adding of the 5 persons as proposed amounts to a variance as provided for in s6 of the Supreme Court (Summary Jurisdiction) Act 1967 (SCSJ Act) or was an amendment able to be considered pursuant to s170 of the Industrial Relations Act 1996 (the IR Act).

15 Counsel for the defendants submitted that what the prosecutor was seeking to do amounted to an amendment to an essential legal element of the particular charges affected by the proposed amendment. As such, that amendment created a new charge and, that being the case, the prosecution was out of time pursuant to s49(1) of the Act.

16 In furtherance of its argument, the defendants contended that in relation to offences arising under ss15(1) and 16(1) of the Act, it was necessary for the prosecution to prove that certain persons (employees or non-employees as the case may be) did not have his/her/their health and safety ensured by the defendant. On that point, the counsel for the defendants submitted: The general rule distinguishing the charge from particulars thereof is the centrality of the information for the purpose of a proper defence. In other words, if the information is such that its proof (and the defence to it) is necessary for the charge to be proven, it is, and must be, part of the charge, and not simply particulars thereto. and: If the person or persons cannot be shown to be subject to a risk, no offence has been committed. Likewise, if one person has been subject to the alleged risk, assuming other elements, an offence has been committed. Technically, an offence is committed when each person is subject to the risk. In this case, charge (sic) alleges a number of offences. This is permissible (at least for each section of the Act) pursuant to s49A(1) of the OH&S Act. Thus, the addition of each person put at risk is the addition of that which otherwise would constitute a separate offence. and further: In other words, if the charge is capable of being defended by showing that the employee or employees pleaded (or, in the case of s16, non-employees) were not at risk (or, more properly, that the defendant did ensure the health and safety of that person or those persons) then the identity of the person, alleged to be at risk, is not a particular, but is, and must be, part of the charge.

17 The defendants also contended that, in commencing these proceedings, the prosecution, relying on the provisions of s49A of the Act, had the choice of charging the defendants separately for an alleged offence in relation to each person alleged to be subject to potential risk. As I understand the defendants submission on that point and using Matter No 3199/00 as an example, the defendants submitted that the prosecution could have charged the defendant (NWCC) with 13 separate offences citing each of the currently named employees as an employee exposed to potential risk. Adopting that approach each employee so named would be an essential element of the offence charged and not just a particular of the charge. That the prosecution have not done so, the defendant says, is simply because they have relied on the provisions of s49A of the Act. In futherance of such reliance and accepting the defendant's contention that the identity of the employee potentially exposed to risk is an essential legal element of the charge, the adding of a further name or names creates new and different charges. As such, the new charges are statute barred under s49(1) of the Act.

18 Putting aside for a moment the question as to whether or not the identity of the employee potentially exposed to risk is an essential legal element of the charge, I have difficulty in accepting the other arm of the defendant's submission on this point. That is, that a separate offence is created in respect of each and every employee potentially exposed to risk. In the first instance, s15(1) creates an offence in relation to 'all his employees' linked directly to the overall system of work. To the extent that s15(2) provides for contraventions, not exhaustive, that if established, proves that the employer has committed the offence created under s15(1), it does so without prejudice to the generality of the offence arising under s15(1). S49A was designed to address the practice of the prosecutor charging a separate offence for each contravention alleged. A contravention of s15(1) (or s16(1) as the case may be) is, as is generally understood and applied, identification of the particular failure relied upon by the prosecutor to factually particularise the offence arising under s15(1). For example, a failure to maintain plant and systems of work or a failure to provide information, training, instruction or supervision as may be necessary. To those alleged contraventions further particulars are generally required to better identify the precise nature of the alleged contravention.

19 The individual identification per se of more than one employee as being potentially exposed to risk is not, in my view, a contravention under s15(2) such as to give rise to the charging under s15(1) of a separate offence for each employee so identified. Nor, in my view, is such an approach contemplated within the provisions of s49A of the Act.

20 In addition to the above arguments, the defendants also raised what I would describe as the prosecutors belated addition of the five named persons in the manner proposed. There has clearly been a considerable degree of correspondence between the parties, particularly on the part of the defendants seeking to pin the prosecution down by way of particulars as to the particular employees referred to in the charge and the particulars of the charge. The initial request for those particulars was made in October 2000. In November 2000 the prosecutions solicitors advised, inter alia: The employees are identified in the charge and in paragraph 4 of the particulars of the charge.

21 Ultimately, when pressed for further clarification and certainty on that issue, the prosecution's solicitors advised in February 2001: The Prosecutor presses the charge with respect to the named employees. If there is to be any variations we will notify you accordingly. (emphasis added)

22 The prosecution now points to that sentence and says, in effect, we are now notifying the defendant accordingly, as we said we would. The defendants says that not only is that approach wrong in law but it is also unfair and prejudicial to them for the prosecutor to now make the variation that it seeks to do and in the way that it seeks to do. To the extent that the defendants raise unfairness or prejudice on the basis of a late notification from the prosecutor goes directly to the issue of adjournment.

23 Consideration as to whether the adding of the five persons in the manner proposed by the prosecution amounts to an amendment to an essential legal element of the charge, as distinct from a factual particular of the offences charged, must start, it seems to me, by considering the essential legal elements of s15(1) and s16(1) of the Act having regard to the nature and formulation of offences arising under those sections.

24 Those issues have been considered in prior decisions of this Court. In Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2001) 102 IR 84 the Full Bench in relation to s16(1) stated at [12] as follows: In Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994), Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s16(1). These we paraphrase as follows:

there were persons not employees exposed to risks to their health and safety;

the risk arose from the conduct of the defendant's undertaking; and

the exposure to risk was at the defendant's place of work.

25 In relation to the legal elements of an offence under s15(1) which the prosecution must prove beyond reasonable doubt, I note the observations of Kavanagh J, with which I concur, in WorkCover Authority of New South Wales (Inspector Maltby) & anor v Abigroup Contractors Pty Ltd & Luis Bustamante (2003) NSWIR Comm 35 at para [272] where her Honour stated: Therefore, the elements of the charge under s15(1) of the Act which the prosecution must prove beyond reasonable doubt are:

the defendant was an employer at the time of the alleged breach;

that there was a risk to employees' health or safety;

that there was a causal nexus between the defendant's breach and the risk to employees' safety;

26 No issue was taken by the defendants suggesting that the above decisions do not properly identify the essential legal elements of the respective offences. The defendants, in written submissions, stated the construction of the elements of an offence under s15(1) were:

· Element 1 - Employer - That OPL and NWCC were employers

· Element 2 - Persons at risk - That persons were in the employ of OPL and NWCC and were at work

· Element 3 - Place of work - That the risk arose at OPL's and NWCC's place of work.

27 While differently expressed I discern no substantive difference except to say that I believe that Kavanagh J more succinctly and comprehensively denotes the legal elements of a s15(1) offence.

28 On behalf of the defendants it was acknowledged that the general rule is that the particulars of the charge may be amended at the discretion of the Court and subject to leave of the Court. However, it was said, as in the matters before me, where the information included in particulars are part of the charge itself, the rule is different. In support of that distinction, the defendants relied, with emphasis, on the view expanded by Hunt AJA (as he then was) in R v Saffron (1988) 17 NSWLR 395 at 446 as follows: An indictment is not invalid because it fails to give all such particulars as maybe required to enable the accused to know the case which he must meet: .... That consideration alone denies the proposition for which the appellant contends, that particulars supplied by the Crown must be regarded as if they were part of the indictment. The appellant relies, however, on the following statement by Gavan Duffy CJ and Starke J in R v Hush ex parte Devanny (1932) 48 CLR 487 at 501: "....the generality of the statement of the offence in the opening paragraph of the information must be limited and understood in the sense particularly stated in the relevant averments or particulars which follow it." But the context of the extraordinary case in which that view was expressed makes it clear that their Honours were speaking of those particulars which were in fact pleaded in the information or indictment in that case . They were not asserting that particulars given by the Crown before or after an indictment is presented are to be treated as if they were pleaded as part of the indictment itself (emphasis added by defendants in submissions).

29 A reading of the judgment of the High Court in R v Hush ex parte Devanny makes it clear that there were unique and unusual features to that matter that require the extract relied upon by the defendants to be more carefully considered. Hunt AJA makes reference to that, in my view, when he expresses the view that he does in relation to it having regard, as he says, to the 'context of the extraordinary case.' By way of contextual completeness, the passage relied upon with emphasis is as follows: Every offence consists of acts done or omitted under certain circumstances. Unless some statutory provision exists to the contrary, the facts and circumstances constituting the offence should be stated, and in cases in which the provisions of s30R are relied upon they should be stated fully and with precision. But it is not right to set out evidence supporting the allegation of the offence. Still less is it right to state irrelevant facts merely giving colour to the prosecution. And in our opinion it is not sufficient, under the provisions of s30R to state evidence from which the result or fact necessary to sustain the offence charged may be inferred, without any allegation of the fact or result itself. The averments should be so stated that they are sufficient in law to constitute the offence charged. Again, in the present case it should be observed that the generality of the statement of the offence in the opening paragraph of the information must be limited and understood in the sense particularly stated in the relevant averments or particulars which follow it.

30 I note the clear proposition as enunciated by their Honours in the above passage at p501: The averments should be so stated that they are sufficient in law to constitute the offence charged.

31 That statement, in my view, accords with the generally accepted principle that a valid indictment must accurately 'state the acts necessary to constitute all the ingredients of that offence': Ex parte Lovell; Re Buckley (1938) 38 SR 153 at 173: See also John L Pty Ltd v AG (NSW) 1987 163 CLR 508 and Cooper v Coffs Harbour City Council (1997) 98 A Crim R 340 at 346.

32 The issue is not whether the persons identified as exposed to potential risk are or are not part of the offence charged. They are. The issue is - are they part of the essential legal elements of the offence charged or are they part of the essential factual particulars of the offence charged? As is well established, the determination of that question will determine whether, on the true construction of offences arising under s15(1) and s16(1) of the Act, what the prosecution proposes has the effect of creating a new charge against the defendants that, because of the provisions of s49(1) of the Act, would be statute barred.

33 In relation to the offences before me I turn to consider whether, within the formulation and construction of offences arising under s15(1) and s16(1)of the Act, the identity of the person potentially exposed to risk is an essential legal element of the offence as distinct from an essential factual particular.

34 The legal elements of offences under s15(1) and s16(1) are referred to in paras [24] and [25] above. Referring only to s15(1) for the moment (but with likewise application to s16(1)), I see nothing contained within those elements that gives rise to the proposition that the identity of the employees potentially exposed to risk is a requisite legal element of an offence charged under s15(1). To put it another way and using matter No 3198/00 as an example, it seems to me that the prosecutor could have pleaded that charge as being: On 13 November 1996 and 14 November 1996 at the Gretley Colliery, Bulkara Street, Wallsend, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all of its employees, contrary to section 15(1) of the Occupational Health and Safety Act 1983. Further particulars of the allegations against you are contained in Further Particulars of Charge, a copy of which is attached.

35 It seems to me that pleading the offence charged in Matter No 3198/00 as proposed in para [34] above could not give rise to an argument that it did not properly state the offence charged encompassing the legal elements of an offence under s15(1). What it would give rise to, quite properly in my view, would be a requirement on the part of the prosecution, as part of the essential factual particulars of the offence to identify, if necessary, whether all of the employees were potentially exposed to risk or some in particular.

36 In my view, the essential legal elements of an offence under s15(1) are linked to the existence of a risk to safety to all employees at the employers place of work arising as part of the overall system of work. Within the wide and general construction of s15(1) the legal elements of the offence go directly to the employer's system of work and the risks to safety arising there from in relation to all employees and not particular employees. To the extent that certain named employees are then particularised as being exposed to the potential risk to safety alleged does not, in my view, change the nature of the substantive offence under s15(1) - nor the essential legal elements of the charge. The identification of named employees 'in particular' constitutes an essential factual particular upon which the substantive offence is grounded. Those factual particulars go directly to identifying facts and circumstances as part of the overall system of work that underpins the alleged substantive offence.

37 The identification of an offence under s15(1) (and likewise s16(1)) as being one alleging a failure of the employers system was commented upon by Walton J VP in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Ltd (2002) NSWIR Comm 316 at para [80] as part of the majority decision in that matter: The charges brought against the respondent did not merely allege a failure by the respondent to provide and maintain a safe system of work for the concrete pouring operation (in the sense of a particular work method adopted at the site). True it is, the charges included a failure to provide a safe system of work in this respect, but it is the failure of the employer's system to ensure that a safe work method was adopted for the pouring of concrete from the outset that is the subject of prosecution (and, in particular, the failure of that system to ensure a method of work was adopted that prevented the risk of fall injuries).

38 Having come to the conclusion that I do, it is equally clear that the prosecution must provide the essential factual particulars of offences charged. The proposal by the prosecution to add the five persons to the offences charged is, in my view, an essential factual particular of the matters before me. As such, it is a variance that falls to be considered having regard to the relevant statutory provisions. The SCSJ Act has been repealed and, as of 1 July 2003, the provisions of s6 of the SCSJ Act are now to be found, essentially unchanged, in s16(2) of the Criminal Procedure Act (CP Act) as amended and, to the extent that s6(2) of the SCSJ Act provided for considerations of adjournment, they are now to be found in s40 of the CP Act (as amended). (As to the other provisions of the SCSJ Act now incorporated in the CP Act (as amended) see particularly Part 5: Summary Jurisdiction of Supreme Court and Other Higher Courts and s170, Application of that Act). 39 The provisions of s16(2) of the CP Act states: No objection may be taken, or allowed, to any indictment by which summary criminal proceedings are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.

40 Also relevant to the issue of variance is s40 of the CP Act which reads: (1) A court may at any stage of criminal proceedings adjourn the proceedings generally, or to a specified day, if it appears to the court necessary or advisable to do so. (2) An adjournment may be in such terms as the court thinks fit. (3) A matter that is adjourned generally may be listed before the court or a registrar not later than 2 years after the adjournment. (4) Without limiting subsection (1), a court may, at the request of an accused person, adjourn criminal proceedings if it appears to the court that a variance between any process or document by which the proceedings were commenced and the evidence adduced in respect of the offence charged in that process or document is such that the accused person has been misled by the variance.

41 I have concluded that the names of persons exposed to potential risk is an essential factual particular of offences arising under s15(1) and s16(1) of the Act. As such, any proposal to vary or add to those names is a variance that is properly to be considered in accordance with s16(2) of the CP Act.

42 As is well established, the provisions now embedded in s16(2) of the CP Act have their origins in what is often referred to as a Lord Jervis provision. As was expressed in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at 57 as follows: A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price : (1899) 20 LR (NSW) 343. ex parte Bartlett ; (1896) 17 LR (NSW) 108. Ex parte Thomas ; Re Otzen ; (1947) 47 SR (NSW) 261. ex parte Burnett; Re Wicks ; [1968] 2 NSWR 11 . Boral Gas (NSW) Pty Ltd v Magill . (1993) 32 NSWLR 501 per Mahoney JA at 517. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars - such as the time, place, or the manner of the offence - a Lord Jervis provision will operate: John L Pty Ltd ; per Brennan J at 529, 531. Stanton v Abernathy ; (1990) 19 NSWLR 656 per Gleeson CJ at 667. R v Cassell ; (1996) 2 NSWCR 89. R v Duff . (1924) 41 WN (NSW) 23.

43 For the reasons I have given I am of the view that the proposal by the prosecution to vary the 33 summonses as advised by them is a variation to the essential factual particulars of those charges and permissible within the proper application of s16(2) of the CP Act (as amended). The provisions of s16(2) of the CP Act were previously to be found in s6 of the SCSJ Act and, having regard to the provisions of that Act, the same conclusion arises.

44 On the evidence before me, the statements of the five additional persons whose names are sought to be added to the relevant summonses have long ago been served on the defendants. To the extent that those statements may now have to be considered in a different light is a factor that may require to be considered in any application for an adjournment made by the defendants.

45 The application of s170 of the IR Act has been raised by the prosecution in the alternative as providing an avenue whereby the additions proposed by them may be dealt with by way of an amendment. S170 relevantly provides: 170 (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. 170(2) Any such amendment may be made: (a) At any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).

46 In relation to this provision, the defendants raised the issue as to whether s170 was applicable to criminal proceedings. I know of no such impediment and, as s170(1) makes clear, the power to amend in s170 is expressed as being 'in any proceedings before it.' If the legislature intended to circumscribe the powers granted under s170 to exclude criminal proceedings it would have expressly said so - as it does in relation to s169 immediately preceding it.

47 Having expressed that view I would add that, if I am wrong as to my conclusions concerning the identity of the persons potentially exposed to risk being an essential factual particular of s15(1) and s16(1) offences and thereby amenable to variance under s16(2) of the CP Act, I would allow an amendment to be made in those terms under s170(1) of the IR Act. I would do so because I see nothing in the proposed amendment that would be anything other than the making of an amendment that the interests of justice demands. The five named persons were, as I understand it, all employees (or non-employees as the case may be) engaged in working at the Gretley Colliery on particular shifts relevant to the periods of the alleged offences. Their statements were included in the brief served on the defendants in June 2000. The oversight of the prosecutor in not particularising them along with other persons at the time the charges were framed is, it seems to me, exactly that. In all the circumstances, the adding of their names at this stage raises only considerations of late notice to the defendants that the statements of those persons and the evidence they may ultimately give, may have to be further and more carefully considered. They are matters going to the issue of any adjournment sought by the defendants.

48 In conclusion, I summarise my findings as follows: · The proposal by the prosecution to vary the 33 summonses as expressed is a variation to the essential factual particulars of those charges and permissible within the proper application of s16(2) of the CP Act (as amended).

· In the alternative, and to the extent necessary, in accordance with the provisions of s170 of the IR Act I would amend the 33 summonses in the terms as proposed by the prosecution.

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