DPP v Esso Australia Pty Ltd

[2000] VSC 573

SUPREME COURT OF VICTORIA	Not Restricted
CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESSO AUSTRALIA PTY LTD

Ruling No. 2

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	16 August 2000
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 573

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Criminal law – practice and procedure – charges under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 – directions for trial pursuant to s. 6(1) Crimes (Criminal Trials) Act 1999 – R v Smith and Ors (1995) 1 VR 10.

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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. 2

HIS HONOUR:

1. I direct that the following timetable be fulfilled by the parties. Pursuant to s.6(1) Crimes (Criminal Trials) Act 1999, I direct that the prosecution serve upon the accused company within one month from today, that is, by Friday, 15 September 2000, a schedule as follows:

(1)       a statement of the essential elements of each count to be proved;

(2)a statement of the essential fact or matter or facts or matters which are to be advanced in proof of that element with a skeletal reference to the relevant depositional material. 

1. In relation to both those matters, the material to be provided by the prosecution is to be skeletal, that is to say, summary and in essence, not fully developed or articulated.  As I said to counsel, like an x-ray; it is simply the bones not the flesh that is to be provided. Such a step would have the advantage of concentrating everyone's mind upon the criminal process, which is that the prosecution bears the onus of proof, not the defence, and that each crime charged has essential elements.  Those matters are to be articulated in that skeletal summary.  I do not wish that summary to involve detail or evidence or argument; simply defining clearly what it is the prosecution advances.

1. I next direct that the prosecution provide to the defence by Monday 2 October, that which is contemplated by s.6(1), namely, a summary of the prosecution opening and a notice of pre-trial admissions.

1. I urge counsel to fulfil the dual requirement, on the one hand, of properly and fully and fairly apprising the accused company of the prosecution case against it, but, on the other hand, avoiding trial by volume.  I refer counsel to the observations particularly of Bryne, J. in R. v. Smith and Others (1995) 1 V.R. 10 at pp. 36-39. In that matter, under the preceding legislation, the Crimes (Criminal Trials) Act 1993, the "concise statement" which the legislation contemplated was 150 pages long, and

grew thereafter.  I take the precisely opposite view.  I believe in concentrating the mind rather than disappearing under volume.  So we will not go down the path that that matter went down.  We should be governed by our intellect, not by volume generated by computer.

1. Then, pursuant to s.7, I direct that the defence response be provided by the end of that month, that is to say, by Monday 30 October, that is four weeks from Monday, the 2nd.

1. I would wish to have the matter listed for any litigation of the issues commencing on Monday, 13 November.  Thus I would hope that all matters should be finalized by 30 November, so that a jury trial can be commenced at the beginning of February in the year 2000.

1. Next, it may be that at any one of those defined points counsel wish to have the matter listed before me  to ensure that things are going properly, to ensure that enough has been said, but not too much has been said, and to ensure fairness to both parties.  So it may be that counsel, having discussed the matter amongst themselves, wish to have the matter listed shortly after the receipt of each of those documents is due, for any helpful judicial intervention in relation to them.  I will be available to assist the parties if they wish to after each of those steps is due. 

1. I should add that I decline the invitation to order the provision of a request for further and better particulars, as such, for the reasons I have stated, namely that I do not regard the defendant company as having the carriage and articulation of this matter.  I decline an order that the prosecution provide further and better particulars so-called.  Rather, we shall proceed upon the basis that each crime has elements, and define the elements and the evidence relating to each element.

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