Director of Public Prosecutions v Esso Australia Pty Ltd

[2001] VSC 102

SUPREME COURT OF VICTORIA	Not Restricted
CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESSO AUSTRALIA PTY LTD

Ruling No. 5

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	13 February 2001
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001]VSC 102

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Criminal law – practice and procedure – charges under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 – presentment – competence, duplicity, prolixity and fairness – ruling only.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	R. Richter QC with N. Clelland	Office of Public Prosecutions
For the Accused	M. Titshall QC with M. Hennessy	Middletons Moore & Bevins

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Ruling No. 5

HIS HONOUR:

1. The accused was originally arraigned before me on  a 21 count presentment filed in this court on 7 August 2000.  In the absence of the jury the accused, through its authorised officer, the company secretary, pleaded not guilty on 16 August 2000 before me to count 1 on that 21 count presentment.  As a matter of convenience, the company was not required to plead formally to the other 20 counts.

1. On 8 February this year, after substantial discussion and submissions, the prosecution sought to file over an 11 count presentment in place of the original 21 count presentment.  Thus the first question before me is whether I ought to grant leave to the prosecution to file over the 11 count presentment in place of the 21 count presentment.  That leave is opposed by learned counsel for the accused.

1. A separate, but nonetheless related, question is whether, on the present 21 count presentment or on the sought for 11 count presentment, one or more of the counts ought to be struck out either as a matter of law or as a matter of fairness.  The defence submits that a number of the counts are incompetent in law in that they display duplicity or uncertainty and vagueness and ought to be struck out, or alternatively that they are unfair in that they are repetitive or the presentment is overloaded or other like deficiencies and thus the counts in those respects ought to be permanently stayed.  As I say, the submissions on one, the filing over application by the prosecution, are different from, but related to, the submissions on the other, the striking out or permanent stay application by the defence.

1. When the 21 count presentment was filed I considered that even if each of the 21 counts were competent in law, there was a significant degree of unnecessary charging. For example, the entities in s.21(2)(e) Occupational Health and Safety Act 1985 of "information, instruction (and) training" were variously pleaded as separate counts. No doubt that was done as a matter of prudence by the prosecution not to have duplicity or other error in law. It seemed to me that it was inappropriate that the accused be arraigned on a multiplicity of counts as to which there were differences, but not differences of any real significance. I thus said to the prosecution that I considered as a matter of fairness, quite apart from whether there was duplicity or other error of law, the presentment ought to be cut down to its real essentials and that the accused should not be burdened with 21 counts when as between a number of them there were distinctions without substantial differences. Thus it was that the prosecution, while not conceding that any of the 21 counts were duplicitous or incompetent in law, has sought to file over an 11 count presentment.

1. The defence submits that the 11 count presentment should not be filed over not because it seeks to be arraigned on the 21 count presentment, but because it says both presentments have significant deficiencies in law either because they are incompetent in law by reason of duplicity or uncertainty and vagueness, or because they are unfair, repetitive and overloaded.

1. In the event, Mr Titshall, learned senior counsel for the accused, said that at the very most there were four counts on the original presentment which could be said to be competent to go forward, but no more than four, and he made that submission without making any concession in relation to it in any event.

1. I have had the benefit of submissions from both the learned senior prosecutor and the learned senior counsel for the accused and I have been most assisted by those submissions.

1. I rule as follows. First, I grant leave to the prosecution to file over the 11 count presentment in place of the 21 count presentment filed in this court on 7 August 2000. Second, I consider that each of the counts on the filed over presentment is competent in law, that is, reveals an offence known to the law being offences under ss. 21 and 22 Occupational Health and Safety Act 1985. I consider none is duplicitous uncertain or vague. I do not consider that the 11 counts, either totally or inter se, involve repetition, duplication or unfairness and I thus neither strike out nor stay any of the 11 counts.

1. I would like to reduce my reasons to particularity, which I shall do overnight and give in the morning in this court at 10.00 a.m., I having had the benefit of further submissions from counsel this morning.

1. Thus I rule first that the prosecution has leave to file over the 11 count presentment; and second, that none of the counts are to be struck out or stayed on the grounds of incompetence in law, that is duplicity or uncertainty and vagueness, or unfairness in its manifold aspects, including repetition.  Thus the 11 count presentment is the document upon which the trial will proceed.

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