DPP v Esso Australia Pty Ltd

[2001] VSC 101

SUPREME COURT OF VICTORIA	Not Restricted
CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESSO AUSTRALIA PTY LTD

Ruling No. 4

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	6 February 2001
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 101

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Criminal law – practice and procedure – charges under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 presentment – preliminary submissions.

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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. 4

HIS HONOUR:

1. I am against Mr Titshall's objection.  I consider I should hear further argument on the matter of the proposed filing over of the 11 count presentment.  My concern has been and is to ensure that this trial is set up structurally properly at its outset.  I have thus directed Mr Richter's mind to a number of matters as to the original presentment which have concerned me, having had the benefit of Mr Titshall's most comprehensive and helpful submissions recently.  There has been no application by Mr Titshall to stay the whole 21 count presentment for abuse of process.  Rather, his submissions have been that various counts in one form or another ought to be struck out or not proceeded with because they are duplicitous or uncertain.  Mr Richter has had the opportunity of hearing those arguments over an adjournment and has now returned with an 11 count presentment.  He applies for leave to file over an 11 count presentment in lieu of the 21 count presentment.  In order to consider that application I need to hear his arguments about the 11 count presentment and in a moment I shall do so.

1. My concern is not to remedy any deficiencies, if there be deficiencies, in the prosecution case.  My concern rather is to ensure that the trial is structurally sound before it commences.  I am conscious of the need on the one hand for the prosecution to be able to propound its case in the public interest; on the other hand for the accused to have a completely fair trial, including free from the burden of an overloaded presentment.  It is fundamental, of course, not to have a presentment which involves uncertainty or duplicity.  If a presentment involved uncertainty or duplicity it would be bad in law in any event.

1. The prosecution will not be receiving gratuitous advice from me as to how to settle its claim.  The law will be applied to the presentment.  If it goes forward to the jury it has to be competent in law which involves that it is neither duplicitous nor uncertain.  Beyond those necessary but formal requirements, there exist the requirements of a fair trial.  Those requirements involve that the presentment is not overloaded and that the accused is not oppressed or prejudiced by the nature and number of counts.  It also involves that the prosecution can properly present its case and fulfil its public responsibility.  And importantly it involves that the jury can understand and follow the case and decide it according to law.

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