DPP v Esso Australia Pty Ltd

[2000] VSC 572

SUPREME COURT OF VICTORIA	Not Restricted
CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESSO AUSTRALIA PTY LTD

Ruling No. 1

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF RULING:	7 August 2000
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2000] VSC 572

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Criminal law – practice and procedure – venue and jurisdiction – charges under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 – accused company committed to County Court for trial – removal to Supreme Court for trial – s. 359(1) Crimes Act 1958 – considerations applicable.

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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. 1

HIS HONOUR:

1. The accused, Esso Australia Ltd, is charged with 21 counts pursuant to sections 21, 22 and 47 Occupational Health and Safety Act 1985. The accused is presumed innocent of each and all of those counts and comes before this and any other court presumed innocent.

1. The accused company has been committed by the Melbourne Magistrates' Court on 1 February 2000 for trial in the County Court.  That committal was essentially a hand up committal, co-operated in by the responsible conduct of the accused company, the parties having had the benefit of a Royal Commission presided over by Sir Daryl Dawson and another Commissioner who were appointed in October 1998 and who reported in June 1999.  The matter remained in the County Court in the months following its direction to that court, that is to say, from 1 February 2000, without demur from the Director.

1. The Director now, pursuant to s.353(7) Crimes Act makes presentment in this court of those 21 counts. That is a matter in the discretion and decision of the Director; the provision states that the Director "may make presentment". However, it is, of course, for this court to control its process. These counts are not counts in the exclusive jurisdiction of this court, although they are indictable offences as provided by s.47(3) Occupational Health and Safety Act 1985.

1. Essentially the prosecution applies pursuant to s.359(1) Crimes Act 1958 for a direction by this court that the matter be heard in this court. S.359(1) makes provision that the Supreme Court of its own motion or, as in this case, on the application of the Director, may order that the matter be tried in this court. Thus the matter comes before me today.

1. Mr Richter, who appears with Mr Clelland for the Director, has made a number of submissions to the end that this is an appropriate matter to be heard in this court, and Mr Titshall, who appears with Mr Hennessy for Esso Australia Ltd., has made a number of submissions to the opposite end.

1. Mr Titshall has most comprehensively and relevantly, if I may say so, submitted that, in essence, there is nothing in this case which requires it to be heard in this court, and it is a matter which should be properly left to the ordinary processes which commenced on 1 February directing the matter to the County Court.  I must say that I entirely agree with Mr Titshall that the County Court is well able and competent to preside in matters of trial complexity and daily the County Court demonstrates precisely that.  So the circumstance that the matter is likely to be of trial complexity does not persuade me that the matter ought be heard in this court as distinct from the County Court.  Nor does the circumstance that certain steps have occurred in the County Court - a mention hearing on 23 March 2000, a listing conference on 4 April, with a directions hearing (later vacated) fixed for 19 June - necessarily involve that it remains there.  As Mr Richter stated, it was only after committal that the Director took over the prosecution, and due consideration of the nature of the matter and the appropriate venue takes a little time.

1. However, there are other considerations, I think, which do militate towards the matter being heard in this court.  The matter is of substantial significance to the parties involved and to the persons affected by it.  It is a matter of legal significance, and the terms of the Act are terms which may call for authoritative, that is to say, legally binding construction.  It seems to me that it is appropriate that an authoritative court, that is to say, a legally binding court, should be seized of those matters.  Further, the matter is of substantial public interest, and by that I do not mean the quantum of publicity but, rather, the inherent nature of the matters are matters of what the court and the law regards as of substantial public interest.

1. It seems to me, therefore, that the true gravamen of the submissions of Mr Richter go beyond a question of court competence - and I have already said that I consider that the County Court has that expertise in trial process - but, rather, the matter is of substantial public importance, of substantial importance to the persons affected, and may require or call for authoritative adjudication, that is to say, construction of the Act, as is appropriate to be heard and determined in this court.

1. For those reasons, I consider it is appropriate that the application of the Director pursuant to s.359(1) of the Act be acceded to and, accordingly, I order that the trial of the 21 counts contrary to the Occupational Health and Safety Act 1985 be heard in this court rather than in the County Court where presently it is reposited, and I shall sign an order to that end.

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