CONSIDERATION
43The judgment in Lorenzo is the most recent in a succession of judgments of this Court which have considered and applied the judgment in Kirk in the context of challenges brought to charges laid under the Act (whether before or after the conviction of a defendant). In Lorenzo , the Full Bench stated (at [31] to [38])
[31] The term, Statement of Offence (or "Statement of the offence"), which was adopted in Kirk to describe the applications for order under s 15(1) and s 16(1) of the 1983 Act was accepted by the Full Bench (by reference to several passages in Kirk ) as constituting the charge (a description of the legal nature of the offence, that is, the legal elements), the particulars (that is, the essential factual ingredients of time, place and manner), and the consequences (that is, the exposure to risk by reason of a defendant's acts or omissions): Morrison v Chevalley at [41]. This construction is also consistent with findings made by the Court of Appeal in John Holland at [55] [56] in which Spigelman CJ (with whom Beazley and Giles JJA agreed) said:
Counsel for John Holland submitted that the Court should focus only on the statement of the charge on the first page of each Application for Order. John Holland, but not Parsons Brinckerhoff, submitted that the balance of each Application, which provides particulars of the charge, is not the statement of the offence for the purpose of applying the reasoning of the High Court in Kirk.
This is too narrow an interpretation of that reasoning. Indeed, it is inconsistent with the reasoning in Kirk which, as I have set out above, analysed the particulars provided, as well as the charge. An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked.
[32] Kirk did not determine that the acts or omissions of a defendant alleged to cause the risk to safety were legal elements of an offence: John Holland at [67]; Morrison v Chevalley at [55(f)].
[33] It was held by the majority in Kirk that charges under s 15(1) and s 16(1) of the 1983 Act had to plead the acts or omissions of a defendant that created the risk to safety: John Holland at [70] (both legal elements and essential factual particulars are required to be pleaded); Morrison v Chevalley at [103]. On this issue, Spigelman CJ in John Holland (Court of Appeal) (at [32]) extracted two propositions from the majority judgment in Kirk , necessary to establish a contravention of the provisions:
"A statement of an offence must identify the act or omission said to constitute a contravention" - see [14], [15], [27], [37], [38], [74]; and
The "relevant act or omission which gives rise to the offence" is "a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating" - see [12], [14], [19], [28], [38].
[34] A rationale for the requirement that the acts or omissions be pleaded in a charge is to ensure that a defendant knows what specific acts or omissions are alleged against it in order that it may raise a defence: Morrison v Chevalley at [104].
[35] An Application for Order must comply with rule 217B of the Industrial Relations Commission Rules 1996 ('the 1996 Rules') (now rule 16.1 of the Industrial Relations Commission Rules 2009 ('the 2009 Rules'). An Application for Order (for example, under s 8(1) of the 2000 Act) must therefore include the nature of the offence alleged (the legal elements): Johnson v Miller (1937) 59 CLR 476 at 486 per Dixon J; Rockdale Beef at [105]; John Holland at [37].
[36] Section 11 of the Criminal Procedure Act 1986 ('the CPA' ) allows for the description of an offence to be made in the words of an Act creating the offence. Thus, if a charge brought under s 8(1) of the 2000 Act describes an offence in the words of that provision then the charge has met the requirement of identifying the legal nature of the offence, subject to the proviso that in adopting the words of the statute it admits of no uncertainty or ambiguity (per Rockdale Beef at [131]). A charge that meets the requirement of s 11 of the CPA does not dispense with the common law rule requiring identification in the charge of the essential factual ingredients of time, place and the manner of the defendant's acts or omissions: John Holland at [38].
[37] If the acts or omissions are not pleaded in a particular place or in a particular form in a charge, this does not amount to a fundamental defect such that the charge should be regarded as a nullity: John Holland at [72]; Morrison v Chevalley at [55(i)]; [56(b) to (d)].
[38] The failure to plead essential factual ingredients (time, place and manner of defendant's acts or omissions) will not amount to a fundamental defect rendering the charge invalid: John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 ( John L ) at 521-522; Stanton v Abernathy (1990) 19 NSWLR 656 at 667; see also Full Bench in John Holland at [72] to [74] and Morrison v Chevalley at [55(i)], [56(b) to (d)] [133] (deficiency due to failure to identify in some way the acts or omissions is unobjectionable (s 16(2) CPA) or would be regarded as an irregularity (s 170 IRA)).
44As to the requirements of a Statement of Offence, the plurality of the High Court held in Kirk (at [14]):
"A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought.
"Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence."
45It is also instructive to refer to the following passages from the plurality judgment in Kirk (at [11] to [13]):
[11] Section 15(2) identified, in general terms, some types of measures which an employer may need to take in order to ensure the health, safety and welfare of employees. The list is not exhaustive. What measures are necessary to be taken will depend upon the particular circumstances prevailing at the workplace, what activities are there conducted, what machinery, plant or substances are involved, the tasks undertaken by the employees and the skills of the employees in question, to mention but a few factors. What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk [9] . An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary" [10] . An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use [11] . Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace.
[12] Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. That those provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure, is confirmed by references in ss 15 and 16 to what constitutes an offence. Sections 15(4) and 16(3) referred to "the act or omission concerned" which "constituted a contravention" of s 16 or s 15 respectively [12] . Section 49 in Pt 6, which concerned the time for instituting proceedings for offences, provided that they must be instituted within two years "after the act or omission alleged to constitute the offence".
[13] To this point reference has been made to the identification of what should have been done by an employer, which will arise in a case such as this, where an employee has been harmed. It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, s 15 may be contravened. An obvious example would be the failure to guard dangerous machinery. Upon conviction of such an offence the Industrial Court may order the employer "to take such steps as may be specified in the order for remedying that matter" within a prescribed period, where it is "within the person's power to remedy", in addition to imposing a penalty [13] . It would be necessary for the charge to identify the "matter" to be remedied to enable such an order to be made.
46In Kirk, the plurality was unable to identify any point in the proceedings at first instance where particular or specific measures had been identified. The Court made the following observations in this respect (at [74]):
[74] The first of the errors in question in this case - the errors of construction of s 15 of the OH&S Act - can be identified as a jurisdictional error of the third kind identified in Craig . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.
47In Lorenzo , the Court found the application contained the legal elements of the charge but found defects in the Statement of Offence in that it failed to state essential factual elements. The consideration of this issue also occurred in a context where some particularisation of the acts or omissions said to constitute a contravention of s 8(1), vis vis specific measures the appellant was required to take, had been provided during the trial. The relevant discussion, in that respect, was as follows (at [18], [43] and [49] to [50]):
[18] The method proposed by the respondent in order to reveal how the relevant measures (that should have been taken) had been identified in the course of the proceedings below, was to identify those measures found by the trial judge as set out in the judgment and then to "work back" in order to see if, and how, the measures were identified by the respondent prior to, and in the course of the proceedings.
[43]... Applying the propositions distilled from John Holland and Morrison v Chevalley , it may be concluded that the failure to identify or specify the omissions of S&L Steel constitutes a defect in the charges which is nevertheless capable of remedy by utilising either s 16(2) CPA or s 170 IRA . (see also Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [20-27] per Sperling J; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No2) (2002) 54 NSWLR 37 at [11]-[21] per Ipp A-JA; Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32). The respondent, although conceding the absence of identification of the relevant omissions in the charges, submitted that the defect did not require remedy because the relevant omissions were adequately or sufficiently identified either in the accompanying affidavits or in the prosecution's opening in the proceedings below, or both; and, where there was a complete absence of identification of the omissions in any of the material, that the convictions nevertheless operated to cure the defect.
[49] The accompanying affidavits in these proceedings contain information which identifies some of the omissions of the appellants ultimately described by the trial judge in the judgment on liability (the five measures). To this extent, the present charges fall into a different category from the Kirk charges in relation to which the High Court found that no acts or omissions had been identified, "at any point in the proceedings up to and including the passing of sentence, as constituting the offences ...": Kirk at [74] (it is unclear whether the High Court had before it the affidavit in support of the Application for Order in that matter although it was referred to during oral hearing).
[50] The present affidavits do not refer to, or otherwise identify, the relevant omissions of the appellants with respect to particular (a) in the charges (the second measure found by Boland J) and particular (e) (the fifth measure found by Boland J). According to the respondent, the affidavits otherwise adequately identify, by implication, the relevant omissions of the appellants with respect to particulars (a) (the first measure), (c) and (d) (the third and fourth measures).
48The first particular in the charges considered by the High Court in Kirk was found by that Court to "simply combine(d) the words of s 15(2)(a), (c) and (f) with a reference to the ATV" (at [25]).
[25] The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. Likewise the first particular relating to the s 16(1) offence repeated the words of that sub-section and merely connected them to the operation of the ATV. Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity.
49Particular 1 of the Statement of Offence in this matter suffers from similar difficulties. Particular 1 does not reveal, on its face, the specific measures which the appellant should have taken.
50The term 'traffic and pedestrian management' is not a term of art or law. It does not provide, with any adequate or proper specificity, what measures should have been taken by the defendant. It is a global term which potentially contains several unspecified measures. Indeed, several measures were contemplated as arising from the ambit of the expression in the judgment by the trial judge although these were not particularised to the appellant during the trial. The concept of a 'traffic and pedestrian management system' envisages any number of measures that could have been taken, and that term is the lynchpin to understanding particular 1. That particular cannot be found to specify the particular measures required to be taken by the appellant to the degree specified in Kirk, and thereby an essential factual ingredient to the charge is omitted.
51The Full Bench in State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) NSWIRComm 33 is apposite in this respect. The Full Bench stated (at [99] to [101]):
[99] The plurality seems to have regarded the measure to be taken to prevent a risk arising, as synonymous with the act or omission giving rise to the offence. Thus, if the charge was that an employer failed to ensure a guard was not removed from a machine, this might constitute an act or omission giving rise to an offence. Whilst the charge might not explicitly say that the measure the employer was required to take to prevent a risk arising was to ensure the guard was not removed, it is plainly implicit what the preventative measure was.
[100] On the other hand, if the charge was that the employer failed to provide information, instruction and training as may be necessary to ensure the health and safety at work of its employees in relation to the operation of a machine (this is essentially the same as particular ii of the s 15 charge in Kirk : see Kirk at [22]), it is apparent from the plurality's decision in Kirk that such a formulation is to be regarded as deficient because it is not sufficiently specific in identifying the act or omission giving rise to the offence (that is, it is to be regarded as not providing the defendant with sufficient information as to the charge he is required to meet) nor is it sufficiently specific as to the measures the defendant should have taken to prevent the risk arising. In this latter respect, as it is made clear in Kirk , in order for a defendant to prepare a defence that it was not reasonably practicable to comply with the provision with which he has been charged, the defendant is entitled to know, in the example cited above, what information, instruction or training it is alleged he should have provided to avoid the identifiable risk: see Kirk at [28].
[101] It seems to us that if a particular of a charge is framed in terms of an employer failing to provide information, instruction and training as may be necessary to ensure the health and safety at work of its employees in relation to the operation of a machine that will not automatically render the charge invalid. This is because there may be other acts or omissions relied upon by the prosecutor that will support the charge: see The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14 at [53] and the cases referred to therein. However, putting that circumstance aside, in the light of Kirk it would seem, subject to what we later say, that a charge framed in the terms of our example represents a failure to identify an essential element of the offence, namely, the manner in which the offence is alleged to have occurred and would, therefore, be invalid: see Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 at [42] and the reference therein to John L at 520-521 per Mason CJ, Deane and Dawson JJ.
52In our view, particular 1 falls within the class described in para [100] of that judgment. At hearing, there was some discussion as to when a measure of the kind discussed in para [99] of Cahill was sufficiently stated as to meet the requisite standard in Kirk . For example, in the hearing a question arose as to whether a measure requiring spotters to regulate or assist with the reversing of a truck might require some specification of the nature, place and type of spotter.
53However, this issue does not squarely arise in this matter, as there was no statement as to the measure required to be taken. It may be observed, however, that in most cases the question will be answered by a straightforward assessment as to whether a defendant had been provided in a charge with particulars of the measures the defendant was required to take to eliminate or avoid risk. This may be aided, in appropriate cases, by some consideration being given to the nature of the charge, the overall content of the Statement of Offence and specific identification of the risk therein.
54It is not possible to detect in this matter the required measures by implication or inferences drawn from a consideration of the whole of the Statement of Offence. The failures stated in particulars 1 and 2 are co-extensive, as both rely upon the notion of a traffic and pedestrian management system. No implication as to the relevant acts or omissions constituting the contravention can be gleaned from particulars 1 and 2, when read together, any more than may be found by the reading of a single charge. For completeness, we mention that particular 4 was struck out by the trial judge. It does provide some further information as to the charge, but it again only provides particulars that specify a failure which is general in nature and does not, in itself, or when read with the other particulars, reveal (by inference or otherwise) what measures the appellant should have taken to avoid the risk.
55Thus, the Statement of Offence bears similar defects to that found in Lorenzo . The point of departure, however, concerns whether particularisation of requisite acts or omissions were given during the trial. There was not in this matter an identification or adequate statement by the respondent of the measures required to be taken (either as ultimately found by the trial judge or otherwise) at any stage during the course of the trial.
56The opening address of the prosecutor and the discussion during the opening illustrates the trial was commenced by the defendant on the basis of particular 1 (having a global range). The only identifiable measures introduced by the prosecutor were those already particularised: that of a traffic management plan and a risk assessment in relation to traffic and pedestrian management at the site prior to the incident, in particular, again with respect to line haul vehicles with trailers attached when reversing to the loading docks. We refer, for example, to the following elements of the opening (at 224-226 of the transcript of the proceedings) :
224-10 I expect you honour will have evidence before you in due course that the principal occupier of the premises, Star Track Express, did not have in place any systematic traffic management plan document.
I expect your Honour will have before you in evidence, subject to objection that there was no traffic management plan. Indeed, I also expect your Honour will have evidence the defendant had not put in place a traffic management plan of its own in respect to line haul drivers from Unanderra, either prior to or at the time of the subject incident. I expect your Honour will have evidence before you in the absence of any systematic form of traffic control management, procedures were developed by the defendant's employees to deal with line haul movement to and from sites, more particularly movements relating to the reversing of vehicles within the sit on to the dock, as set use in the particulars of the charge.
225-15 In due course what the prosecution principally says is this: Given the nature of the processes that were involved in loading the trucks, the processes that were involved in the paper work that he was required to be done, the sealing of the vehicles and various other aspect of the preparation for the trip in fact, there was a requirement that from time to tome during procedures rather than be excluded from the area dock area where the loading occurred, the driver attended there as part of their normal duties and the absence of a formal system allowed that process to be developed to the point at which the matter comes before your honour.
then
226-5 Hatcher We would appreciate it if the Prosecutor would be so kind as to identify exactly what the risk is that he says is the subject of the charge and how he says the defendant failed to implement measures to overcome that risk. I know my friend has attempted to do so in a shorthand fashion, his last observation to it seems to use we may be entitled to a little bit more detail. It doesn't flow directly from the particulars, as your honour will have seen, I think the way my friend has just characterised it may perhaps relate to the first particular provided in the charges. We're not complaining about that, we just ask for some assistance in just how it comes to be before the Court.
then
Cahill 226-5 The application for order as filed in the proceedings is particularised in terms the prosecution maintains the defendant failed to ensure that safe system of work, in relation to traffic and pedestrian management was provided of maintained at the premises and, in particular, for the line haul vehicles with trailers attached when reversing at the loading dock or the premises.
The balance or particulars is also pressed. It is said that there was a failure on the part of Western Freight Management to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, again with respect to line haul vehicles with trailers attached when reversing to the loading docks.
...
Then four, I would have thought, was self explanatory within the circumstances of the case. What is said about that is in line with the failure to ensure a safe system of work, that there was a failure to ensure that there was adequate separation maintained between moving vehicles, in this case it was the line of the vehicle driven by Mr Norman, and pedestrians, who on this particular occassion was the deceased, so that they were not in danger of being struck by the moving vehicle.
57The affidavit in support provides no further assistance to the respondent. It does not provide evidence of specific measures that the appellant should have taken so that it could defend the charge.
58As we earlier observed, the trial judge did find an identified risk. His Honour simply made findings as to measures which the appellant should have taken to avoid the risk to its employees.
59At para [134] in the s 28 defences section of the judgment, the trial judge says:
[134] The submission for the defendant was that as the risk was so well known, there were no other effective measures the defendant could have put in place to ensure that Mr Lloyd would not have placed himself in the area to the rear of Mr Norman's trailer.
The trial judge then proceeded to outline at least three measures that could have been taken to obviate the risk (at [135], [136] and [141]):
[135] ...A proper traffic and pedestrian management plan provided and maintained by the defendant was one measure that could have been adopted and would have removed or minimised the risk. Within the plan the defendant could have ensured that reversing procedures were kept to the absolute minimum, and that any unnecessary reversing manoeuvres eliminated.
[136]...where it was necessary for drivers to reverse, steps could have been taken to ensure that there were no pedestrians in the vicinity of the rear of the reversing trailer. This could have been achieved by a policy and practice of excluding employees who were not required to be located in the area, from being between the loading docks and the rear of the trailer
[141] Although there was dispute on the evidence as to whether STE's policy of sounding the vehicle's horn and using a spotter was, in fact, implemented at the Waverley Drive depot after the incident and prior to the move to the new STE Wollongong depot, I am satisfied that the procedure outlined in the evidence was a step that would have significantly decreased, if not eliminated, the risk.
60None of those measures had been specified by the respondent during the trial as particulars of the charges, and emerged for the first time in the trial judgment.
61Particular 2 raises a different issue. That particular concerned the appellant undertaking a risk assessment which would have addressed the risk to the appellant's employees in the truck reversing area. It is conceivable that a charge laid under the Act which particularises a failure to undertake a risk assessment (in order to avoid an identifiable risk) may satisfy the requirement to state the measures a defendant is required to take (per the judgment in Kirk ). This outcome is less likely, however, where there is an absence of contextual support for those particulars from other particulars which identify the measures necessary to be taken to avoid a risk (against which previously an assessment is required to be given by a defendant).
62Here, that difficulty is exaggerated by particular 2 being specifically linked, by its terms, to the provisions of particular 1. In order to understand what measures the appellant is required to take pertaining to particular 2, it was necessary, in our view, for the respondent to have stated to the requisite degree the measures required to be taken to avoid risk in particular 1. This, as we have found, was not done and, hence, particular 2 ultimately bears the same defects as particular 1.
63Nothing further was said in the affidavit in support of the application for order or the respondent's opening as may have provided notice of the measures required to be taken by the respondent.
64Particular 3 was not relied upon by the respondent in its defence of the charges.
65The respondent's Notice of Contention sought to revive particular 4. We agree, in this respect, with the respondent that, whilst that particular did fall within the ambit of particular 1, it was not necessarily a duplication of the terms of the particular (as the trial judge found). Nonetheless, we do not consider the respondent's Contention may be granted. To allow a conviction on the basis of a revival of a particular would, in our view, constitute a clear miscarriage of justice.
66It is obvious that the respondent has not faced prosecution upon the basis of charges consisting of particular 4. In the absence of a retrial (which we do not consider, for reasons given below, should occur in this case), it would be an unfairness for particular 4 to be resurrected in order to sustain a conviction in circumstances where the remainder of the particulars were defective, and the trial did not proceed upon the foundation of the charge based on that particular.
67The rule which the respondent relied upon to bring the Notice of Contention was r 8.5. That rule is in the following terms.
8.5 Notice of contention
(1) If the respondent:
(a) wishes to contend that the de c ision below should be affirmed on grounds other than those relied on below, and
(b) does not seek a discharge or variation of any part of that decision, the respondent need not file a cross-appeal, but may instead file notice of that contention stating, briefly but specifically, the grounds relied on in support of the contention.
(2) The notice referred to in subrule (1) must be filed and served:
(a) within 14 days after service on the respondent of the application commencing the appeal, or
(b) within such further time as the Commission may allow.
68"Decision" is defined in the definitions of the rules at 1.4:
"decision" includes any award, order, direction, contract determination or ruling.
69In a civil case, Penrith Whitewater Stadium v Lesvos Enterprises [2007] NSWCA 131, Basten JA dealt with the meaning of "decision" in this rule. He held, in the context of appeal proceedings, that the word "decision" in the rule meant orders of the Court below. It follows that a Notice of Contention would be the correct procedure for the respondent seeking to affirm the orders of the first instance decision such as a finding of guilty for an offence under s 8(1).
70However, that approach does not make appropriate the use of the notice in this matter. In order to sustain the conviction, particular 4 would, of itself, have needed to adequately state a measure or measures the appellant was required to take. We do not consider it did so to the requisite degree of specificity.
71Further, we have reservations as to whether a contention may be employed for the purposes contemplated by the respondent in this case.
72The order made by the trial judge was in the following terms (at [125]):
[125] I have already found that particular 1 has been made out. I am satisfied that particular 4 is a duplication of particular 1. Accordingly, particular 4 is struck out.
73Whist it is unnecessary to finally resolve whether the respondent should have appropriately brought a cross appeal (which, on one view, may have been in any event affected by the provisions of s 5F of the Criminal Appeal Act 1912: see Rockdale Beef v Industrial Relations Commission of NSW (2007) 165 IR 7), we have doubts that the reversal of the interlocutory order to strike out particular 4 meets the terms of r 8.5(1)(a). The granting of the Notice of Contention would not have the effect of affirming the conviction below, per se , on alternate grounds.
74We note that the appellant contended that the charges were invalid because they did not state an identifiable risk. It is, however, unnecessary for us to further consider that matter (or the appellant's other grounds of appeal) because of the conclusion we have reached in this matter.
75The appellant also raised some matters in relation to measures it had raised in its defence that were rejected at first instance. Again, it is unnecessary to fully assess those matters in light of the conclusions we have reached.
76We have found that the particulars of the charges in trial at first instance did not disclose to the appellant the specific measures the defendant should have taken to obviate the risk.
77Here there has been a procedural unfairness. The trial judge fell into error when convicting the appellants of the offences in circumstances where the charges failed to plead, either expressly or by implication, the relevant acts or omissions.
78As this Court said in Lorenzo, the need for the provision of appropriate particulars has its roots in the requirements of procedural fairness. A defendant must be fairly informed of the charge it has to meet. Further, the structure of the Act requires that a defendant knows what measures it is alleged it did not take so that it could properly address available defences.
79In this matter, however, we have found no acts or omissions, or set of acts or omissions, necessary to specify the requisite contravention, were identified to the appellant at any point in the proceedings, up to the conviction judgment. Upon the statements of law in Kirk , this should result in the appeal being upheld and the convictions of the appellant quashed (along with the penalties imposed upon that conviction).
80We have had regard to the factors identified in Lorenzo as to whether orders should be made for a re-trial. We have concluded that there will be no re-trial. The Full Bench in Lorenzo decided to order a re-trial based upon a number of factors (at [87] to [89]) including:
a) There the trial judge had found the particulars of each charge (except for one particular) to be proven beyond a reasonable doubt;
b) That the prosecution's case would not differ in any significant respect in terms of evidence relied upon;
c) That the trial judge had found that the offences were objectively serious;
d) That there was not a significant delay between the offence and any further hearing, and
e) That there was identification throughout the trial of the relevant acts or omissions.
81There are, however, significant differences in this matter with respect to each of the above, as follows:
a) The offences were proven upon the basis of findings that the appellant had failed to take certain measures (to obviate or avoid an identified risk). These were not, however, measures which were at any relevant time identified to the appellant prior to conviction. Hence, the findings at trial that the offences were proven can offer no proper support for a re-trial;
b) It is not a safe conclusion that the evidence in any further trial would be substantially the same as the trial below, particularly with respect to defences. In Lorenzo, because certain measures were identifiable to some degree on the evidence adduced at trial, it was considered likely a re-trial would result effectively in the same evidence being adduced. Here none of measures found by the trial judge were identified during the trial and, hence, no realistic conclusion can be reached that the same evidence might be adduced by the prosecution to establish specified measures or that fresh evidence might not be called by the defence in resistance to any amended charges;
c) There would be significant delay between the incident which took place in December 2004 and a further hearing (now well over seven years later); and
d) The failure by the prosecutor to address to the appellant the measures which were required to be taken constituted procedural unfairness of such gravity as to point against a re-trial.
82We accept this was an objectively serious offence concerning a death in the workplace. The gravity of a risk which led to a fatality is an important consideration, but factors relating to procedural fairness and the erroneous application of the Act outweigh, in this circumstance, that consideration.
83In Lorenzo , the Court determined there was a belated (unfair) identification of the measures the defendants should have taken. There was, however, a correlation between those measures, as specified, and those found by the trial judge, so a proper assessment could be made that the prosecutor would have reasonable prospects in a new trial. This was not the case here. There was no identification of measures which were found established by the trial judge so as to permit such an assessment. This factor also contributes to our conclusion against the granting of a re-trial.