Glenister v Magistrates' Court of Victoria
[2014] VSC 265
•4 December 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 5479
| INSPECTOR MARK KENNETH GLENISTER (VICTORIAN WORKCOVER AUTHORITY) | Plaintiff |
| V | |
| THE MAGISTRATES’ COURT OF VICTORIA AND BAIADA POULTRY PTY LTD (ACN 002 925 948) | First Defendant Second Defendant |
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JUDGE: | GINNANE J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 4 and 5 June 2014 | |
DATE OF JUDGMENT: | 4 December 2014 | |
CASE MAY BE CITED AS: | Glenister v The Magistrates’ Court of Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 265 | |
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JUDICIAL REVIEW – Criminal charges – Occupational health and safety – Whether terms of charges valid – Whether charge contained essential elements of offence – Amendment – Requirements for amendment – Occupational Health and Safety Act 2004 (Vic) ss 5, 20, 21 and 26 – Criminal Procedure Act 2009 (Vic) ss 5, 6, 8 and 9 and Schedules 1 and 2.
CRIMINAL LAW – Requirement of valid criminal charge – Essential elements of charge – Amendments – Requirements for amendment – Criminal Procedure Act 2009 (Vic) ss 5, 6, 8 and 9 and Schedules 1 and 2.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr G.J. Lyon QC and Mr T.E. Wraight | Victorian WorkCover Authority |
| For the First Defendant For the Second Defendant | No appearance Dr D.J. Neal SC | K & L Gates |
TABLE OF CONTENTS
Summary of grounds of originating motion
The charges including the proposed amendments
The Criminal Procedure Act 2009 (Vic)
The Occupational Health and Safety Act 2004 (Vic)
Procedural history
The Magistrate’s first ruling
The Magistrate’s second ruling
Submissions of the parties regarding the legal principles applicable to the validity of the charges
VWA
Baiada’s submissions
The authorities on the validity of a criminal charge
Conclusion: the requirements of the CPA for a valid criminal charge
Section 9 of the CPA
Grounds of the Originating Motion
Ground A1
Ground A3
Ground A3(a)
Ground A3(b)
Conclusion
Grounds A3(c) and (d)
Conclusion
Ground A3(e)
Conclusion
Ground A3(f)
Conclusion
Ground A3(g)
Conclusion
Ground A5
Conclusion
Grounds A8 and A9
Conclusion
Ground B1
Ground B2
Ground B3
Ground B4
Summary and conclusion
HIS HONOUR:
The plaintiff, who is an Inspector appointed under the Occupational Health and Safety Act 2004 (Vic) (‘the OHS Act’), seeks judicial review of a decision of the Magistrates’ Court of Victoria made on 16 September 2013 ruling that:
(a)each of the four charges laid by the plaintiff against the second defendant, Baiada Poultry Pty Ltd (‘Baiada’), did not provide reasonable information as to the nature of the charges to comply with Schedule 1 of the Criminal Procedure Act 2009 (Vic) (‘the CPA’) and were ineffective and a nullity; and
(b)each of the four charges could not be amended in accordance with the documents headed ‘Draft Amendment to Particulars’ pursuant to s 8(4) of the CPA.
These rulings were made by a Magistrate in his second ruling in the prosecution. The judicial review application therefore related to the second ruling. I refer to the first ruling later in these reasons.
The Magistrate found that it was agreed that Baiada ran a chicken processing plant at Laverton North. It engaged a cleaning contractor, Ecowize Specialised Hygiene Services Pty Ltd (‘Ecowize’). Ecowize, in turn, engaged Mr Satinder Sarel Singh as an employee.
On 12 August 2010, Mr Singh was killed at the workplace when he was cleaning the chicken processing chain line.
The four charges brought by the plaintiff as an inspector of the Victorian WorkCover Authority (‘VWA’) were filed at the Melbourne Magistrates’ Court on 10 August 2012 and, on the same day, sent by registered post to Baiada. In the judgment, I will refer to the plaintiff as the VWA.
Charges were also brought against Ecowize.
Pursuant to s 132 of the OHS Act, proceedings for offences against s 21(1) and s 26(1) of the OHS Act can only be brought within two years after the offence was committed or the VWA becomes aware the offence was committed, or at any time with the written authorisation of the Director of Public Prosecutions.
Baiada applied for the charges to be struck out, on the basis that they disclosed no offence.
Summary of grounds of originating motion
There were originally 13 grounds in the originating motion, of which nine grounds, numbered A1 to A9, were directed at the charges in their original form and four grounds, numbered B1 to B4, were directed at the charges in the amended form that the VWA sought.
The charges including the proposed amendments
I will set out the terms of the charges, together with the amendments that the VWA proposed after the Magistrate’s first ruling. The proposed amendments are underlined or the text of the original charges is struck through, so as to distinguish them from the text of the original charges.
Baiada Poultry Pty Ltd (ACN 002 925 948)
Charge 1 ‑ s 21(1) and 21(2)(a)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide or maintain plant or systems of work that were, so far as was reasonably practicable, safe and without risks to health.
Particulars:
1.Baiada Poultry Pty Ltd (ACN 002 925 948) (“the accused”), at all material times conducted a business undertaking at 15–17 Pipe Road, Laverton North (“the workplace”).
2.The accused was an employer for the purposes of the Occupational Health and Safety Act 2004 (“the Act”).
3.In August 2010, Ecowize Specialised Hygiene Services Pty Ltd (ACN 096 111 689) (“Ecowize”) was contracted by the accused to provide cleaning services at the workplace.
4.Satinder Sarel SINGH (“Singh”) was employed by Ecowize as a cleaner. At all material times Singh was working as a cleaner at the workplace. For the purposes of section 21(1) and (2) and pursuant to section 21(3) the Act, Singh was an employee of the accused.
5.For the purposes of sections 21(1) and (2) of the Act the accused exercised control at the workplace with respect to the chicken processing chain line while cleaning was being undertaken by Ecowize.
6.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that a system was in place that ensured that when employees including Satinder Pal Singh Sarel, were cleaning the chicken processing chain line including associated sprockets, shackles and wash boxes, the chicken processing line was not operating by:
Ensuring that the chicken processing line was tagged and locked out before any cleaning commenced and remained so throughout the cleaning process.
7.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that a system was in place that prevented employees including Satinder Pal Singh Sarel, coming in contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned by:
Providing screening or guarding to prevent entanglement in the chicken processing line.
Charge 2 ‑ s 21(1) & 21(2)(e)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(e) you failed to provide such information, instruction or training to your employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.
Particulars:
1. Particulars 1–5 of charge 1 are repeated.
2.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that employees including Satinder Pal Singh Sarel, were provided with adequate information, instruction or training in relation to the cleaning of the chicken processing chain line including associated sprockets, shackles and wash boxes by:
Providing, or ensuring the provision of by Ecowize, information, instruction or training to employees engaged to conduct cleaning of the chicken processing line, requiring the tagging and locking out the chicken processing line while cleaning is being undertaken.
Charge 3 ‑ s 21(1) & 21(2)(e)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(e) you failed to provide supervision to your employees as was necessary to enable them to perform their work in a way that was safe and without risks to health.
Particulars:
1. Particulars 1–5 of charge 1 are repeated.
2.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that employees including Satinder Pal Singh Sarel, were provided with adequate supervision in relation to the cleaning of the chicken processing chain line including associated sprockets, shackles and wash boxes by:
Ensuring that employees were adequately supervised while cleaning the chicken processing line so that no cleaning would be undertaken while the chicken processing line was operating.
Charge 4 ‑ s 26(1)
On 12 August 2010 at Laverton in the State of Victoria pursuant to section 21(1) of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as a person who had, to any extent, the management or control of a workplace you failed to ensure, so far as was reasonably practicable, that the workplace
and the means of entering and leaving it werewas safe and without risks to health.Particulars:
1.Baiada Poultry Pty Ltd (ACN 002 925 948) (“the accused”), at all material times conducted a business undertaking at 15–17 Pipe Road, Laverton North (“the workplace”).
2.In August 2010, Ecowize Specialised Hygiene Services Pty Ltd (ACN 096 111 689) (“Ecowize”) was contracted by the accused to provide cleaning services at the workplace.
3.The accused had, to an extent, management or control at the workplace with respect to the chicken processing chain line while cleaning was being undertaken by Ecowize.
4.Baiada Poultry Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that ensured that when persons including Satinder Pal Singh Sarel were cleaning the chicken processing chain line including associated sprockets, shackles and wash boxes, the chicken processing chain line was not operating by:
Ensuring that the chicken processing line was tagged and locked out before any cleaning commenced and remained so throughout the cleaning process.
5.Baiada Pty Ltd (ACN 002 925 948) failed to ensure that an adequate system was in place that prevented persons including Satinder Pal Singh Sarel, coming in contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned by:
Providing screening or guarding to prevent entanglement in the chicken processing line.
The parties accepted that the charges and the particulars should be read together for the purposes of determining their validity.
The Criminal Procedure Act 2009 (Vic)
The CPA commenced on 1 January 2010.
Section 5 provides that a criminal proceeding is commenced in three ways. The first way, which is contained in s 5(a), is by filing or signing a charge-sheet in accordance with s 6.
Sections 6, 8 and 9 are in Part 2.2 of the CPA, which is headed ‘Charge-Sheet and Listing of Matter’, and state in relevant parts:
6. Commencement of a criminal proceeding in the Magistrates’ Court
(1)A criminal proceeding is commenced —
(a)by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court; …
(3)A charge-sheet must —
…
(c) comply with Schedule 1.
8. Order for amendment of charge-sheet
…
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if‑
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and
(c)the amendment will not cause injustice to the accused.
9. Errors etc. in charge-sheet
(1)A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1 …
Schedule 1 of the CPA states:
Charges on a Charge-Sheet or Indictment
1 Statement of offence
A charge must —
(a)state the offence that the accused is alleged to have committed; and
(b)contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge.
2 Statement of particulars
(1)Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary.
(2)If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required.
3 Statutory offence
(1) In this clause —
statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.
(2)For the purposes of clause 1 (a), a statement of a statutory offence is sufficient if it —
(a) identifies the provision creating the offence; and
(b)describes the offence in the words of the provision creating it, or in similar words.
…
4. Exceptions, exemptions etc.
Any exception, exemption, proviso, excuse or qualification need not be specified or negatived in a charge.
The Occupational Health and Safety Act 2004 (Vic)
The objects of the OHS Act are set out in s 2:
2 Objects
(1) The objects of this Act are—
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—
having regard to the principles of health and safety protection set out in section 4.
(2)It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.
Section 4 of the OHS Act states:
4 The principles of health and safety protection
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3)Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4)Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5)Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.
The first three charges were for breaches of s 21 of the OHS Act. The fourth charge, which was an alternative to charge 1, was for breach of s 26 of that Act. Section 20, which is in Part 3, Division 1 headed ‘The concept of ensuring health and safety’, and s 21, in Division 2 which is headed ‘Main duties of employers’, state:
20The concept of ensuring health and safety
(1)To avoid doubt, a duty imposed on a person by this Part or the regulations to ensure, so far as is reasonably practicable, health and safety requires the person—
(a)to eliminate risks to health and safety so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to reduce those risks so far as is reasonably practicable.
(2)To avoid doubt, for the purposes of this Part and the regulations, regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring health and safety—
(a)the likelihood of the hazard or risk concerned eventuating;
(b)the degree of harm that would result if the hazard or risk eventuated;
(c)what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;
(d)the availability and suitability of ways to eliminate or reduce the hazard or risk;
(e)the cost of eliminating or reducing the hazard or risk.
21 Duties of employers to employee
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty:1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)Without limiting subsection (1), an employer contravenes that subsection if the employer fails to do any of the following –
(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b)make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c)maintain, so far as is reasonably practicable, each workplace under the employer’s management and control in a condition that is safe and without risks to health;
(d)provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e)provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
(3)For the purposes of subsections (1) and (2) –
(a)a reference to an employee includes a reference to an independent contractor engaged by an employer and any employees of the independent contractor; and
(b)the duties of an employer under those subsections extend to an independent contractor engaged by the employer, and any employees of the independent contractor, in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
(4)An offence against subsection (1) is an indictable offence.
Section 26, which is in Division 5 headed ‘Duties of other persons’, states:
26 Duties of persons who manage or control workplaces
(1)A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)The duties of a person under subsection (1) apply only in relation to matters over which the person has management or control.
(3)An offence against subsection (1) is an indictable offence.
Note
However, the offence may be heard and determined summarily (see section 28 of the Criminal Procedure Act2009).
Employer and employee are defined in s 5 as follows:
5 Definitions
(1) In this Act —
…
employee means a person employed under a contract of employment or contract of training (see also subsection (2));
employer means a person who employs one or more other persons under contracts of employment or contracts of training;
Procedural history
As previously stated, the charges were issued on 10 August 2012 for offences allegedly committed by Baiada on 12 August 2010. On 11 September 2012, Baiada gave notice to the VWA that it would apply to have the charges struck out on the grounds that they were inadequate, did not comply with the CPA and the common law and could not be amended. That application was heard by the Magistrate on 22 and 23 July 2013. The Magistrate’s first ruling was given on 15 August 2013 and the proceedings adjourned.
On 26 August 2013, senior counsel for the VWA informed the Court that it would be applying to amend the particulars of the charges. The VWA then provided a document setting out the proposed amendments to the Court and to Baiada. Argument about the proposed amendments occurred on 26 and 27 August 2013.
On 16 September 2013, the Magistrate delivered the second ruling, refusing the VWA’s application to amend and striking out the charges.
The Magistrate’s first ruling
In the first ruling given on 15 August 2013 (‘the first ruling’), the Magistrate ruled on an application by Baiada that the charges be struck out on the basis that they disclosed no offence. The Magistrate identified two issues for determination:
(a) were the charges effective at law;
(b) if they were not, could they be amended outside the limitation period provided by the OHS Act and pursuant to the CPA.
The Magistrate decided that each of the four charges failed to specify one or more of the essential elements of the offence. His Honour stated that at common law, the four charges could be argued to be a nullity, however, s 8 of the CPA provided that the charges may be amended.
In the final sections of his first ruling, the Magistrate considered the Court’s power to amend criminal charges after the expiration of the limitation period and requested submissions about any amendment application that the VWA was proposing to make.
Baiada, in submissions to this Court, submitted that the first ruling was not relevant because the VWA’s judicial review application was directed at the second ruling. For reasons that I later give, I consider that the reasoning of the Magistrate in the first ruling is relevant to the determination of the issues in this proceeding.
The Magistrate ruled that the essential elements of a charge under s 21 of the OHS Act included the specification of whether the employee was a direct employee or was owed the same duty as a direct employee by virtue of s 21(3). He stated that where s 21(3) applied, the factual matter establishing ‘the engagement’ of that person and the matter of which the employer had control or may have had control must be clearly specified in the charge.
The Magistrate also concluded that it was an essential factual element of the charges to specify the respects in which the workplace was not as safe as reasonably practicable, in particular having regard to the matters set out in s 20(2)(a)–(e) of the OHS Act. The charges or their particulars should have specified the steps which the VWA alleged the employer should have taken and the factual basis for its allegations that the employer, rather than Ecowize, should have taken those steps.
In respect of charge 1, the Magistrate decided that the particulars provided did not identify the basis on which it was alleged that Baiada was an employer of Mr Singh. The charge also failed to allege the matters over which Baiada had actual control for the purposes of s 21(3). The charge did not define the system of work to which it referred or what it alleged to be ‘reasonably practicable’. The charge did not clearly specify what steps the VWA alleged that Baiada should have taken.
The Magistrate found that charge 2 had the same defects as charge 1 in respect of the allegation that Mr Singh was an employee. It provided no precise factual details about the information, instruction or training that the VWA alleged should have been provided to Baiada’s employees. The particulars did not state why Baiada, rather than Ecowize, should have provided that information, instruction or training.
Charge 3 suffered from the same defect as charge 1 in respect of the allegation that Mr Singh was an employee. Charge 3 provided no details of the supervision that the VWA alleged Baiada should have provided or why Baiada rather than Ecowize should have provided that supervision.
The particulars to charge 4 did not specify why the workplace was not safe and without risks to health. Nor did they identify the matters over which the VWA alleged that Baiada should have exercised control or state why Baiada did not discharge its duty to do what was reasonably practicable by engaging Ecowize to carry out the cleaning work.
The Magistrate’s second ruling
As previously stated, on 16 September 2013, after the parties had made further submissions, the Magistrate delivered his second ruling, dismissing the VWA’s application to amend the charges and the particulars. The Magistrate struck out the charges with costs to be paid by the VWA.
The VWA relied on the amendment power contained in s 8 of the CPA. It argued that a charge could be amended if the charge-sheet before the amendment sufficiently disclosed the nature of the offence.
The Magistrate noted that no argument was put to him about the third requirement of s 8(4), namely whether the amendment would cause injustice to the accused. He found that no such injustice would occur.
The Magistrate also found that all the charges in their original terms failed to disclose sufficiently the nature of the offences. The proposed amendments did not remedy the significant omissions in the original charges.
The Magistrate ruled that charge 1, with the amended particulars proposed, still did not satisfy the requirements of the common law and Schedule 1 of the CPA. In addition, a number of the allegations were new allegations, for instance, that contained in particular 5, which stated:
For the purposes of sections 21(1) and (2) of the [OHS] Act [2004] [Baiada] exercised control at the workplace with respect to the chicken processing chain line while cleaning was being undertaken by Ecowize.
Particulars were still not provided of the VWA’s allegations that the measures it identified in the amended particulars were reasonably practicable. The same criticism applied to the proposed particular 6 which alleged that Baiada should have ensured that the chicken processing line was tagged and locked before any cleaning occurred and throughout the cleaning process.
The Magistrate found that in respect of the proposed amended charge 2 there was no detail provided of the precise information that Baiada or Ecowize ought to have provided employees. Even with the amended particulars proposed, the charge did not allege the steps that Baiada should have taken that would have been reasonably practicable to avert the identified risk.
The Magistrate found that in respect of the proposed amended charge 3 the use of the words ‘adequately supervised’ failed to give proper particulars of the charge. There were no details of the nature of the supervision that the VWA alleged should have been provided, of who should have provided it and why it was necessary.
The Magistrate found that the proposed amended charge 4 failed to detail the management or control that the VWA alleged Baiada had over the workplace or its duty in respect of the alleged risks to health. The charge failed to identify the reasonably practicable measures that the VWA contended Baiada failed to implement.
Submissions of the parties regarding the legal principles applicable to the validity of the charges
VWA
The VWA applied before the hearing of any evidence to amend the charges to bring clarity to them. Although the primary issue concerned the VWA’s amendment application, an important initial question was whether the original charges were valid.
The Magistrate erred by concluding that the original charges were not valid and did not satisfy the statutory tests. In addition, the Magistrate did not apply the terms of s 8(4) of the CPA in considering the amendment application.
The Magistrate did not distinguish between the requirements for a valid charge, which as contained in Schedule 1 of the CPA are particulars that give reasonable information of the nature of the offence, and the narrower requirements for a charge to be amended, which are contained in s 8(4) of the CPA and which include that the charge-sheet, before amendment, sufficiently disclose the nature of the offence. That latter requirement did not necessitate the provision of particulars of the evidentiary facts that were necessary to prove the charge. The Magistrate erred by not applying the different meanings that the words ‘offence’ and ‘charge’ have in the CPA. For example, s 6 requires that the charge-sheet contain a charge and s 12(4) requires that the charge disclose an offence known to law.
The word ‘offence’, which appears in clause 1(a) of Schedule 1 and s 8(4), refers to the contravention of the law which attracts a penalty. The word ‘charge’, which appears in clause 1(b) of Schedule 1, means the allegation pertinent to the defendant. The distinction between a charge and an offence was identified by the joint judgment of the High Court in Kirk v Industrial Court of New South Wales:
The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.[1] (emphasis added)
[1](2010) 239 CLR 531, 557 [26] (citation omitted) (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The VWA submitted that the legislature, by using the words ‘sufficiently disclosed’ in s 8(4)(a), deliberately departed from the expression in Schedule 1 ‘give reasonable information as to’. The legislature also deliberately used the words ‘the nature of the offence’ in s 8(4)(a), whereas the words ‘the nature of the charge’ were used in Schedule 1.
Baiada’s contentions, if accepted, would set a higher requirement for a valid charge than was required under the CPA or the common law and would require the informant to provide particulars of the evidence that it intended to call at trial. Matters that the Magistrate considered were ‘essential factual elements’ were no more than matters to be proved at trial. At best, they could be sought by requests for further particulars.
The VWA accepted that the requirement of reasonable information of the nature of the charge, which is contained in Schedule 1 of the CPA, requires a specification of the time, the place and the manner of the defendant’s alleged acts or omissions.[2]
[2]Transcript of Proceedings, Glenister v The Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S CI 2013 5479, Ginnane J, 4 June 2014) 33.
The amendments should have been allowed because they did not result in new charges being created, but only provided clarification of the existing charges.
Baiada’s submissions
Baiada’s submissions before the Magistrate, and again argued before this Court, were that:
(a) The prosecution had to identify the acts and omissions which made up each of the essential legal and factual elements of the charges.
(b) The charges and their particulars did not sufficiently identify:
(i) how Baiada was said to owe a duty to Mr Singh;
(ii) assuming that the alleged duty arose under s 21(3) of the OHS Act, what was the matter over which the VWA alleged Baiada had control and how was that alleged control to be established;
(iii) the risk to the health and safety of employees which Baiada had a duty to address;
(iv) the measures which Baiada should have taken to reduce that risk;
(v) how such measures were said by the VWA to be reasonably practicable;
(vi) where two or more parties have parallel duties under this legislation, the prosecution is obliged to particularise why any measure alleged against each of them is reasonably practicable.
(c) As the charges did not sufficiently identify these essential factual elements, they were ineffective.
(d) Because the limitation period had expired, the charges could not be amended pursuant to s 8(4) of the CPA. The original charges had not sufficiently disclosed the nature of the offences within the limitation period, and amending them outside the limitation period would amount to the commencement of a proceeding for a new offence.
(e) Further, the proposed amended charges were not valid in any event, as they still did not disclose all the essential factual elements of the offences.
(f) The matters in s 8(4)(b) and (c) of the CPA had also not been established. There was an injustice to Baiada if the effect of the amendment was to unfairly defeat the limitation period.
(g) To the extent that it was relevant, the charges also did not comply with Schedule 1 of the CPA, as they did not provide reasonable information as to the nature of each offence.
Baiada submitted that the substance of the meaning of both Schedule 1 and s 8(4) was the same. The CPA did not intend to change the common law principles governing the validity of criminal charges. Clause 1(b) of Schedule 1 requires that the nature of the offence be the subject of particulars which provide reasonable information as to the nature of the charge. Those particulars are to be provided in compliance with the obligations imposed by clause 2 of Schedule 1.
Baiada referred to the Department of Justice’s Legislative Guide to the CPA to suggest that the CPA did not intend to alter the pre-existing legal requirements for valid charges. The Legislative Guide states that Schedule 1 of the CPA:
harmonises and consolidates the previous provisions in the Crimes Act 1958 and the Magistrates’ Court Act 1989 into a single set of provisions.[3]
[3]Department of Justice, Criminal Procedure Act 2009, Legislative Guide, Criminal Law Justice Statement, 370. The Legislative Guide has been referred to in the Court of Appeal as an aid to interpretation, see for example CMG v R [2013] VSCA 243, [134] and Stark v R [2013] VSCA 34, [36].
Before this Court, Baiada submitted that it was necessary to distinguish between the essential factual elements of the charge and things which are merely particulars and which may amplify the factual elements that have already been identified in a proper charge.
The authorities on the validity of a criminal charge
The parties referred to a number of legal authorities. I will set out passages from the principal authorities. In Johnson v Miller, Dixon J stated:[4]
In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.
[4](1937) 59 CLR 467, 489–90 (emphasis added).
In John L Pty Ltd v Attorney-General (New South Wales), Mason CJ, Deane and Dawson JJ stated:[5]
That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.
In De Romanis v Sibraa, Mahoney JA correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented:
In Johnson v Miller Dixon J saw the decision in Smith v Moody as requiring the information to specify ‘the time, place, and manner of the defendant’s acts or omissions’; McTiernan J referred to ‘fair information and reasonable particularity as to the nature of the offence charged’. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N Ormsby & Sons Pty Ltd; Re Mason.
…
These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, … they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.
[5](1987) 163 CLR 508, 520 (citations omitted).
In Director of Public Prosecutions (DPP) Reference No 2 of 2001,[6] Charles JA, with whom Winneke P and Chernov JA agreed, stated:
[T]here are a number of facts which must be established as part of the proof of such an offence, such as for example that the instrument used was a breath analysing instrument within the meaning of the Act and that the person who operated the instrument was duly authorised to do so. Of course it does not follow that all such facts, necessary though they may be to proof of the offence under s 49(1)(f), must be alleged in the charge. In my view the essential elements of the offence under s 49(1)(f) are prescribed by the section itself and do not by direct or indirect reference incorporate any other allegation of fact necessary to exist in order to create the offence.
[6](2001) 4 VR 55, 64 [23].
In Kirk v Industrial Court of New South Wales,[7] the joint judgment states:
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.
The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller (1937) 59 CLR 467 at 489 per Dixon J. In John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508, it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed: John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 519. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet: John L Pty Ltd (1987) 163 CLR 508 at 519. The common law requirement is that an information, or an application containing a statement of offences, ‘must at the least condescend to identifying the essential factual ingredients of the actual offence’: John L Pty Ltd (1987) 163 CLR 508 at 520. …[8]
The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person’s presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged: Johnson v Miller (1937) 59 CLR 467 at 483–484.
The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.[9]
[7](2010) 239 CLR 531 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[8](2010) 239 CLR 531, 557 [25]–[26].
[9](2010) 239 CLR 531, 558 [27]–[28].
In Director of Public Prosecutions (Vic) v Kypri,[10] Nettle JA stated:[11]
A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context: Director of Public Prosecutions Reference No 2 of 2001; Collicoat v Director of Public Prosecutions; Bell v Dawson (2001) 4 VR 55 at 68–9, [40]. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.
[10](2011) 33 VR 157; cf Foster v Harris [2012] VSC 637 and Ha v R (2013) 38 VR 154, [2013] VSCA 77.
[11](2011) 33 VR 157, 163 [16].
Nettle JA also stated under the heading ‘Amendment out of time’:[12]
The rule is that an amendment which clarifies a charge is permissible and an amendment which goes further than that is not. So, an amendment may be permitted out of time when, despite the amendment, the offence charged stays the same. But an amendment will not be allowed out of time if it would result in the formulation of a new and different charge. The latter is treated as an impermissible attempt to avoid the limitation period. (citations omitted).
[12](2011) 33 VR 157, 165 [23].
Conclusion: the requirements of the CPA for a valid criminal charge
Before considering the grounds of the originating motion, I will state my conclusions concerning the requirements for a valid criminal charge, first under the common law and secondly under the CPA.
At common law, a charge has to state the essential elements of the offence with which the defendant is charged and detail the time, place and manner of the defendant’s acts or omissions.
At common law, a charge can be amended after the expiration of the limitation period provided the amendment does not substitute a new charge.
While the CPA uses language from the common law principles governing the validity of criminal charges, it is necessary to apply the words of the CPA in determining the validity of the four charges.
Under the CPA, the charge-sheet must state the offence and contain the particulars that are necessary to give reasonable information as to the nature of the charge. Although there is no set formula, the particulars required will usually include the time, place and manner of the acts charged and other particulars of the act, matter or thing alleged by the informant as the foundation of the charge.
The Court can only permit the amendment of a charge after the expiration of the limitation period if the three criteria listed in s 8(4) of the CPA are established.
The first is that the charge-sheet before amendment sufficiently disclosed the nature of the offence.
The other two requirements are that the amendment does not amount to the commencement of a proceeding for a new offence and that the amendment will not cause injustice to the accused.
Section 9 of the CPA
Section 9(1) of the CPA states that a charge-sheet is not invalid by reason only of a failure to comply with Schedule 1. Section 9(2) gives instances of errors in the charge-sheet which will not invalidate the charge.
Baiada submitted that the use of the word ‘only’ in both sub-sections clearly means that the common law rules for holding a charge invalid apply. There must be other circumstances in which either a charge-sheet or a charge can be invalid. In particular, the CPA does not purport in any way to vary the common law requirement that a valid charge must assert the essential legal and factual elements that make up the offence, which includes the acts and omissions relied on.
I consider that s 9(1) prevents a charge being invalid by reason of a failure to allege matters that are not essential elements of a charge, for example, technical objections such as those identified in s 9(2) or a typographical error in identifying the provision that creates the offence. There is considerable authority concerning the operation of similar provisions.[13] However, it is unnecessary to attempt to define the ambit of s 9 for the present proceedings.
[13]See Jervis’ Act provisions, Magistrates’ Court Act 1989 (Vic) s 50 and John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 527–32 (Brennan J).
Grounds of the originating motion
Ground A of the originating motion commences with the contention that:
The learned Magistrate erred by finding that each of the four charges laid by the Plaintiff against the Second Defendant did not provide reasonable information to comply with Schedule 1 of the CPA.
Baiada submitted that it had never made the contention recorded in ground A of the originating motion. Rather, its application was to strike out the charges after the limitation period had expired. It contended that the charges could not be amended because they did not comply with the requirements of s 8(4) of the CPA. The Magistrate had concluded that the charges were not valid and therefore, under s 8(4), could not be amended.
As previously stated, Baiada contended that grounds numbered A1 to A9 did not arise for decision because the Magistrate’s second ruling, which was the subject of the judicial review application, concerned the Court’s power to amend charges. Only grounds B1 to B5 related to the second ruling.[14]
[14]Transcript of Proceedings, Glenister v The Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S CI 2013 5479, Ginnane J, 4 June 2014) 96.
I consider that the VWA’s grounds numbered A1 to A9 that were maintained are relevant to the determination of the VWA’s judicial review application of the Magistrate’s second ruling, because the reasoning in the first ruling to which those grounds relate underpinned the Magistrate’s second ruling. The second ruling concerned whether ‘the charge-sheet before the amendment sufficiently disclosed the nature of the offence’. Grounds A1 to A9 that were maintained may be relevant to that issue, because if the Magistrate erred in his first ruling in critical respects, it may have affected his second ruling.
The VWA did not pursue grounds A2, A4, A6 and A7 of the originating motion. It stated that it considered that the argument to be made in ground A7 was considered by ground A3(b).
Ground A1
Ground A1, as amended, alleges that:
The learned Magistrate erred in finding that a charge which lacks an essential factual element will inevitably fail to provide ‘reasonable information as to the nature of the charge’ as required by paragraph 1(b) of Schedule 1 of the CPA. (Ruling 1, pp 21.9 and 22.2; Ruling 2 paras. [6] to [14]).
The Magistrate stated in his first ruling:
The case of Kypri illustrates a similar concern in relation to limitation periods. It confirmed that a charge which failed to disclose its true nature could be a nullity at common law and could only be amended under certain circumstances outside the limitation period. The core issue was that an essential element of the offence was absent and that is why the nature of the offence was not sufficiently disclosed in that case.[15]
[15]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 21.
In the second ruling, the Magistrate stated that:
The draftsman of the CPA may not have intended some of its consequences, however the legislative guide to the CPA which both parties relied on from time to time in support for their various submissions makes clear reference to this issue of amendment post the limitation period. I refer to the Criminal Procedures Act 2009 Legislative Guide, Criminal Law Justice Statement at p. 45, where it outlines the following, ‘While it may be possible to amend a charge which fails to identify the essential elements of the offence within the limitation period, such an amendment after the expiry of the limitation period is likely to amount to an attempt to commence new proceedings accordingly it will not be permissible’. Pursuant to the provisions in the Acts Interpretation Act Victoria, I am able to place some weight on the interpretation of this section, by reference to this legislative guide in coming to my conclusions.[16]
[16]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 16 September 2013) 4 [11].
The Magistrate, in substance, concluded that if an essential element of the offence was absent from the charge, the nature of the charge will not be sufficiently disclosed, as required by clause 1(b) of Schedule 1 of the CPA. The Magistrate’s statement reflected orthodox legal principle. The authorities, to which I have referred, state that a valid charge must contain the essential elements of the offence. The VWA’s attack was really directed at the Magistrate’s findings as to what were the essential elements of the offences that were the subject of the four charges. Those findings were the subject of other grounds of the judicial review application. The Magistrate did not err as is alleged in ground A1.
Ground A3
Ground A3 is directed at matters that the VWA contended that the Magistrate had incorrectly found to be essential factual elements of the offences. Ground A3 contains the following statement by way of introduction to listing particular allegations that are then set out in sub-grounds:
The learned Magistrate concluded that, in order for a charge sheet to be valid, it was necessary to allege matters which were incorrectly found by him to be essential factual elements of the offence. In respect of charges under s.21 of the Occupational Health and Safety Act 2004 (‘the OHS Act’) he incorrectly concluded that the following matters were essential particulars the provision of which was necessary to sufficiently disclose the nature of the charge …
Ground A3(a)
Ground A3(a) states:
whether persons alleged to be employees were directly employed or were subcontractors as defined by s.21(3)(a) of the OHS Act to be employees (Ruling 1, pp 22.3, 24.6 and 28.5);
Charges 1 to 3 alleged that Baiada was an employer and Mr Singh an employee.
The Magistrate said on this issue:
As an employee may be a direct employee or owed the same duty by virtue of s.21(3), it is an essential element, in my view, of a charge that one or other of these alternatives is clearly specified. Where s.21(3) applies, the factual matter establishing ‘the engagement’ of that person and the matter of which the employer had control or may have had control must clearly be specified.[17]
[17]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 22.
Specifically, when dealing with charge 1, the Magistrate stated:
Here, there is no legal or factual allegation [in] the charge or the particulars that Mr Singh was owed a duty under s.21(3). There is no reference to Ecowize or Baiada. It is common for the prosecution from time to time to allege in cases like this, for example, that Mr Singh was an employee of Ecowize which had been engaged by Baiada. Further, there may be an allegation that Baiada rather than Ecowize had control of the operation of the chicken processing line or that Baiada rather than Ecowize controlled access to the processing line when it was being cleaned.[18]
[18]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 25.
The VWA submitted that the Magistrate wrongly decided that in order for charges 1, 2 and 3 to be valid they must not simply specify that Baiada was an employer, but state how and why it alleged that Baiada was an employer.
Baiada submitted that for charges 1, 2 and 3 to be valid, they had to specify that Baiada owed Mr Singh the duty of an employer because he was employed by an independent contractor, Ecowize, which had been engaged by Baiada. The charges also had to specify the basis of the VWA’s allegation that the ‘risks to health’ were matters over which Baiada had control.
Baiada submitted that it owed no duty to Mr Singh unless it could be established either that he was an employee under s 21(1) of the OHS Act, or that he fell within the terms of s 21(3). The charge, if it relied on s 21(3), had to specify if Mr Singh was an employee of an independent contractor and the matter over which Baiada had control.
Conclusion
I consider that the Magistrate did not err in concluding that the VWA was required to specify in charges 1, 2 and 3 the elements of the offence that imposed on Baiada the duties of an employer to Mr Singh. In my opinion, without the specification of that information, charges 1, 2 and 3 do not state the essential elements of the offence and do not give reasonable information as to the nature of the charges.
The VWA was relying on the definition of ‘employee’ contained in s 21(3)(a) of the OHS Act, that includes employees of independent contractors engaged by an employer. Section 21(3)(b) extends the duties of an employer, such as Baiada, to an independent contractor engaged by the employer and to the employees of the independent contractor:
in relation to matters over which the employer has control or would have control if not for any agreement purporting to limit or remove that control.
Section 21(3), at least in paragraph (a), is a definitional provision creating a statutory definition of ‘employee’, which includes employees of an independent contractor engaged by an employer. Those persons would not be employees of Baiada at common law.
Section 21(3)(b) extends the duties of employers to the particular circumstances that it describes and which I have set out above. As Byrne J stated in Stratton v Van Driel Ltd, a case that concerned the predecessor to the OHS Act:
The difficult question is to identify what precisely is the nature of this control and what it is over which control must exist in order to attract this extended duty.[19]
[19](1998) 87 IR 151; [1998] VSC 75, [15].
Byrne J further stated:
In s 21(3)(b) any duty imposed by s 21(1), as exemplified in s 21(2), is a duty ‘in relation to’ these matters. This conjunctive phrase indicates that the relationship between the duties and the subject matter of the duties is also very wide. Focusing for the moment on para (i) of s 23(3)(b), the only factor limiting the imposition of the duty is that the matters to which it relates be matters over which the person engaging the independent contractor has control.[20]
[20](1998) 87 IR 151; [1998] VSC 75, [16].
In Reilly v Devcon Australia Pty Ltd,[21] the Court of Appeal of the Supreme Court of Western Australia considered s 19(4) of the Occupational Safety and Health Act 1984 (WA) which was in the following terms:
[21](2008) 36 WAR 492 (Steytler P, Miller JA and Newnes AJA).
(4)For the purposes of this section, where, in the course of a trade or business carried on by him, a person (in this section called ‘the principal’) engages another person (in this section called ‘the contractor’) to carry out work for the principal —
(a)the principal is deemed, in relation to matters over which he has control or, but for an agreement between him and the contractor to the contrary, would have had control, to be the employer of —
(i) the contractor; and
(ii)any person employed or engaged by the contractor to carry out or to assist in carrying out the work; and
(b)the persons mentioned in paragraph (a)(i) and (ii) are deemed, in relation to those matters, to be employees of the principal.
The Court of Appeal stated:
Looked at in its overall context, s 19 is designed to ensure that those who are most directly responsible for the safety of workers (their employers and principals who have contracted with their employers) and who have actual control over matters affecting their safety should be held liable for default in exercising that responsibility. That the control must be actual control (encompassing a right of actual control, whether exercised or not) over the particular matter affecting safety seems to us to be evident from the words used, read in their context.
It is significant that s 19(4) is directed to ‘matters’ over which the principal has control, unlike s 22(1) which is directed to a person who has, to any extent, control of ‘a workplace’ or of the means of access to and egress from it. This suggests that s 19(4) is concerned with actual control over a particular matter affecting safety, rather than general responsibility for, or control over, the workplace. That reinforces the notion that the legislature did not intend to impose upon a principal who has engaged a specialist contractor (who is not ordinarily susceptible to direction as to how to perform its work: see, eg, Humberstone v Northern Timber Mills) a general obligation to supervise the manner in which the contractor (having an expertise that the principal lacks) goes about the performance of the work entrusted to it.[22]
[22](2008) 36 WAR 492, 502–3 [34]–[35] (citation omitted).
The Court of Appeal stated[23] that the construction it preferred was consistent with that given to similar legislation in other States and was not in conflict with the construction adopted by Byrne J in Stratton’s Case.[24]
[23](2008) 36 WAR 492, 503 [37]–[38].
[24](1998) 87 IR 151; [1998] VSC 75.
The question is whether the provisions of s 21(3)(b), which the VWA relies on to extend Baiada’s duty as an employer to Mr Singh as an employee, were essential elements of the offences that were the basis of charges 1, 2 and 3. I consider that, at the least, the charges that rely on s 21(3)(b) should state either in the charge or in the particulars that Baiada owed the duties of an employer to Mr Singh because he was an employee of Ecowize, which had been engaged by Baiada, and that Baiada had control of the workplace or part of it as was alleged.
Without such details the charge did not provide the essential factual elements of the offence to enable the determination of the provision of the legislation under which the charge was brought.[25]
[25]Cf Alwer v McLean [2000] VSC 396 (Smith J), Ciorra v Cole [2004] VSC 416 (Redlich J) and Preston & Gordon v Donohoe (1906) 3 CLR 1089, 1096 (Griffith CJ).
I do not consider that the charges or their particulars needed to set out details of the evidence relating to control or contain details of Baiada’s engagement of Ecowize. Those were matters for evidence at the hearing of the charges. In the case of the determination of ‘matters over which’ the employer has control, then the principles discussed in Reilly v Devcon Australia Pty Ltd[26] and Stratton’s Case[27] will be applied.
[26](2008) 36 WAR 492.
[27](1998) 87 IR 151; [1998] VSC 75.
Because charge 1 does not contain the essential elements of the offence that I have referred to in the previous paragraphs, I consider that the charge-sheet before the amendment did not sufficiently disclose the nature of the offence and cannot be amended under the power contained in s 8(4)(a) of the CPA.
This finding also affects charges 2 and 3, which for similar reasons fail to ‘give reasonable information as to the nature of the charge’ and do not sufficiently disclose the nature of the charge.
Ground A3(b)
This ground relates to charges 1 to 3. It alleges that the Magistrate wrongly found the following matters to be essential elements of those charges:
the matters relied on to establish why a remedy said to be reasonably practicable was in fact reasonably practicable by reference to the considerations listed in s.20(2)(a) to (e) of the OHS Act and any other relevant matters (Ruling 1, p 22.6; Ruling 2 paragraph [29]);
The Magistrate stated in the first ruling:
For the reasons held in Kirk, it is an essential factual element to specify the respects in which the workplace was not as safe as reasonably practicable, in particular having regard to the definition of practicability set out in s.20 of the Act.
In terms of the essential factual ingredients of a reasonable practicability there ought, in my view, to be allegations regarding the matters alleged and as a possibility enumerated in s.[20(2)](a) to (e), namely the likelihood of risk or hazard; the degree of harm; the objective and subjective knowledge about ways of removing or mitigating the risk; the availability and suitability of ways to remove the hazard or risk.[28]
[28]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 22.
In his second ruling, the Magistrate stated:
The requirement for reasonable practicability is also still not pleaded either. In fact counsel for VWA in open court informed the court that no amendment would be made or attempted to be made to the charge to satisfy my ruling of 15 August, namely that the specific indicia in s.20(2) of the OH&S Act provisions needed to be referred to for a competent charge to proceed.
Insofar as it fails to particularise this aspect of the charge it also fails. Therefore I rule that the Charge 1 amendment is refused insofar as the proposed amendments are made. This being so no offence is validly before me and the amendment fails.[29]
[29]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 16 September 2013) 11.
For the purposes of argument before the Magistrate, it was not disputed that the specification of the steps that the VWA alleged were reasonably practicable for Baiada to take, pursuant to the obligations imposed on it under s 21(1), were ‘essential factual ingredients’ that the VWA had to prove beyond reasonable doubt. The High Court’s judgment in BaiadaPoultry Pty Ltd v The Queen contains one of many statements of that principle.[30]
[30](2012) 246 CLR 92; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249; Laing O’Rourke BMC Pty Ltd v Kirwin [2011] WASCA 117, [72].
The VWA argued, however, that the charge-sheet, including particulars, provided reasonable information of those matters and, in any event, they could be provided by the provision of further particulars.
Baiada accepted that the charges and their particulars did not have to address each of the matters in s 20(2)(a) to (e) of the OHS Act. However, Baiada submitted that the VWA had to particularise the reasonably practicable measures that it alleged should have been taken, and why those measures were reasonably practicable. For example, why the VWA contended that it was reasonably practicable for Baiada to stop the chicken processing chain line operating during cleaning and why it was reasonably practicable for Baiada, rather than the subcontractor, to take these measures. Reasonable practicability is an essential element of a s 21 offence. These particulars were especially required when both Baiada and Ecowize were alleged to owe the statutory duties of an employer to Mr Singh. The VWA had chosen not to provide particulars of reasonable practicability.[31]
Conclusion
[31]Transcript of Proceedings, Glenister v The Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S CI 2013 5479, Ginnane J, 4 June 2014) 91.
I consider, with respect, that the Magistrate erred in deciding that the VWA had to provide particulars of each of the matters in s 20(2)(a) to (e).
The VWA had to prove beyond reasonable doubt that Baiada, as an employer, had failed, so far as was reasonably practicable, to provide and maintain for employees of the employer a working environment that was safe and without risk to health.[32] It had to provide reasonable information of why it alleged that the measures Baiada had not taken were reasonably practicable. However, it did not need to give particulars of its case in respect of each of the matters contained in s 20(2)(a) to (e).
[32]Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [1], [30]–[32].
The particulars provided detailed the measures that Baiada should have taken towards the workers, such as Mr Singh, to whom, on the VWA’s case, Baiada owed the employer’s duties prescribed in s 21 of the OHS Act. Those measures were to have a system in place that ensured that the chicken processing chain line was not operating when it was being cleaned. The reasonable practicability of that measure was to be determined at the hearing of the charges.
I accept the VWA’s submission that the matters listed in s 20(2)(a) to (e) are not essential elements of the offence, but are matters to which regard must be had in ‘determining what is reasonably practicable in relation to ensuring health and safety’.
Grounds A3(c) and (d)
The VWA next argued, in grounds A3(c) and (d), that the Magistrate incorrectly found that the following matters were essential elements of the offences:
(c)why the Second Defendant rather than the subcontractor is said to be responsible for any alleged deficiency or for the provision of information, instruction, training or supervision, and specification of the extent of what is said to have been its responsibility (Ruling 1, pp 25.2, 26.3, 28.3, 29.2–29.5, 31.3; Ruling 2, paragraph [45]);
(d)why the Second Defendant and not the subcontractor should have been responsible for taking the steps alleged to have been reasonably practicable (Ruling 1, p 23.1; Ruling 2, paragraph [29]).
This ground appears to relate to charges 2 and 3.
Grounds A3(c) and (d) refer to a number of passages in the Magistrate’s rulings. It is sufficient to refer to a few of them.
The Magistrate stated in his first ruling:
Do the legal principles change for sub-contractor’s duties? The charge in the particulars assert that Baiada should have provided a system [to] ensure against the matters alleged in the particulars. It may have been possible for Baiada to have done something about this, but the question still is what the actual measures were, and given the involvement of the sub-contractor Ecowize should the measure have been undertaken by Baiada?
If the prosecution alleges that Baiada should have detected deficiencies in the sub-contractor’s work methods statement, that has not been precisely alleged. If Baiada did not require Ecowize to use a tag and lock out system that too has not been said in the particulars.[33] …
Following the High Court’s decision in Baiada there is, in my view, a deficiency and the particulars in Charge 2 do not state why Baiada rather than Ecowize should have provided this information, instruction or training. The mere fact that Baiada could have provided this information is not enough in my view. Why is Baiada not entitled to rely on Ecowize the subcontractor in this respect in full discharge of its duty? And there I cite paragraph 33 to 38 of the decision in the High Court of Baiada (2012) at paragraph 65. Charge 2 therefore in my view does not sufficiently disclose the nature of the offence alleged.[34]
[33]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 26.
[34]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 28.
The Magistrate stated in his second ruling:
The amendments now appear to address the error that was contained in the original filed charge sheets, and now deletes references to entering and leaving the workplace. The charges now, as per the proposed amendment, simply reassert the workplace was needed to be safe. Particular (3) asserts the accused had, ‘To an extent’, management or control of the workplace with respect to the processing chain line while cleaning was being undertaken by Ecowize. The words, ‘to an extent’ in my view, without more in regard to the management and control of a particular matter, in a workplace criminal prosecution, do not lead to the particularity that is required in my view, and are insufficient to identify the actual responsibility required for proving such an offence.[35]
[35]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 16 September 2013) 15 [44].
Baiada submitted that the particulars failed to detail the steps which the VWA alleged it should have taken and why those steps were reasonably practicable for it to take. The VWA contended that these matters did not have to be identified in the charges.
Conclusion
I consider that the VWA has established grounds A3(c) and (d). With respect, I consider that the Magistrate erred in deciding that the charges needed to detail why the VWA alleged that Baiada, rather than Ecowize, should have performed particular tasks. These details were matters of evidence at trial.
I do not consider that those matters were essential elements of the offences nor were they required to give reasonable information as to the nature of the charges. Baiada’s contention that it discharged its duty by engaging Ecowize was a matter to be considered on the hearing of the charges.
Ground A3(e)
This ground concerned charge 2 and alleged that the Magistrate erred in deciding that its essential elements included:
in respect of Charge 2: the specific detailed directions required to be included in the instructions, information, instruction or training, why such information, instruction or training was necessary and the required manner of transmission of the information, instruction or training (Ruling 1, pp 29.1, 27.8);
Charge 2 concerned the failure to provide such information, instruction or training to employees as was necessary to enable them to perform their work in a way that was safe and without risk to health.
The VWA submitted that it was implicit in charge 2, when read with charge 1, that it alleged that Baiada failed to provide information to ensure that the processing line was not operating when employees were cleaning it. The particulars referred to the cleaning of the chicken processing line with specific attention to sprockets, shackles and wash boxes. Mr Singh died when he was cleaning that equipment.
Baiada submitted that the charge had to give details of the content of the information, instruction or training that the VWA alleged that it was required to provide.
The Magistrate stated:
Baiada in that case and the court in this case needs to know what information, instruction or training should have been given in relation to the cleaning of the chicken processing line in order if nothing else to at least to permit some limits around the evidence that would be called in this case.[36]
Conclusion
[36]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 27.
I do not consider that the Magistrate erred as the VWA alleged in ground A3(e).
Charge 2 contained particulars stating that Baiada had failed to ensure that employees were provided with adequate information, instruction or training in relation to the cleaning of the chicken processing chain line, including associated sprockets, shackles and wash boxes. They did not give reasonable information as to the nature of the charge.
I do not consider that charge 2 can be read by reference to the terms of the particulars contained in charge 1. There was no obvious link between the charges to operate so as to incorporate matters alleged in one charge into the other charge.
The use of the adjective ‘adequate’, whether it is of information, instruction or a system, conveys information only when its meaning is identified. As Kirk’s Case made clear in respect of the phrase ‘appropriate’, some readily available standard must be provided to the persons charged to identify what was not done which, if done, might have prevented the accident.[37] The same reasoning applies to the word ‘adequate’.
[37]Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338, [78] per Spigelman CJ and [135]–[141] per Giles JA; but contrast GEO Group Australia Pty Ltd (t/a Junee Correctional Centre) v WorkCover Authority of New South Wales [2012] NSWCA 150 where a charge that described the risk to the worker as ‘failing to maintain adequate guarding of the Press‘, when it was alleged that the guarding ‘was removed and not replaced’, was held to be valid, see esp [15]–[19] per Meagher JA.
Charge 2 provides no detail of what the VWA alleges was the adequate information, instruction or training required in relation to the cleaning of the chicken processing chain line and associated equipment.
Ground A3(f)
Ground A3(f) alleged that the Magistrate erred in stating that:
any deficiencies in any work method statement issued by the subcontractor which the Second Defendant should have identified (Ruling 1, p 26.4);
The VWA refers to the following statement by the Magistrate:
Do the legal principles change for sub-contractor’s duties? The charge in the particulars assert that Baiada should have provided a system [to] ensure against the matters alleged in the particulars. It may have been possible for Baiada to have done something about this, but the question still is what the actual measures were, and given the involvement of the sub-contractor Ecowize should the measure have been undertaken by Baiada?
If the prosecution alleges that Baiada should have detected deficiencies in the sub-contractor’s work methods statement, that has not been precisely alleged. If Baiada did not require Ecowize to use a tag and lock out system that too has not been said in the particulars.
Indeed, neither the charge nor the particulars refers to Ecowize at all. There would appear to be no factual basis for the assertion that Baiada rather than its sub-contractor should have taken whatever step is contemplated in the particulars.[38]
[38]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 26.
These observations appear to relate to charge 1 and possibly to charge 4.
The VWA submitted that the Magistrate incorrectly held that it was essential to particularise any deficiencies that Baiada should have identified in any work method statement issued by Ecowize.
Baiada submitted that deficiencies in a work method statement were not an essential element of the offence and that the Magistrate did not say that they were, but was merely giving an example of how the VWA could particularise Baiada’s alleged breach of duty.
Conclusion
I do not consider that the Magistrate erred as alleged in ground A3(f). He did not say that any deficiencies in the work method statement should have been identified in the charges, but was giving an example of a possible matter that the VWA might rely on to establish that Baiada had failed to provide a safe system for employees.
Ground A3(g)
This ground alleges that the Magistrate erred in finding that essential elements of charge 3 were:
in respect of charge 3: details as to who should supervise, the level, location and frequency of supervision required, and why it was necessary (Ruling 1, p 29.1; Ruling 2, paragraph [43]).
The Magistrate stated in his first ruling:
Similar to Charge 2 in my view, the term ‘adequate’ does not suffice as a particular at law. In relation to supervision, what level of supervision was required is questionable. Did it require a spotter to be in attendance as the defendants submitted to me, a supervisor to be present, or what level of frequency? Further there is no factual allegation about why any given level of supervision was necessary for this task.[39]
[39]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 28–9.
The Magistrate stated in his second ruling:
There is in the particulars no factual details about the nature of the supervision, who was to deliver supervision and why in respect of this actual risk it was indeed necessary. Nor did it address the reasonable practicability of the level of the supervision as required as I have earlier ruled in Charge 2 above. Insofar as these deficiencies in the present proposed amended charges fail to deal with this aspect and are repeated in this Charge I also refuse the amendment.[40]
[40]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 16 September 2013) 15 [43].
The VWA submitted that the adequate supervision that it alleged Baiada was required to undertake did not have to be specified in the particulars, but was a matter for evidence. The allegation in the charge referred back to the requirement that Baiada ensure that employees did not come into contact with the chicken processing chain line when it was being cleaned and the requirement that the line was not operating during cleaning.
Baiada submitted that the third charge did not sufficiently disclose the nature of the offence for similar reasons as charge 2. Charge 3 did not identify the details of the supervision that the VWA alleged was required of Baiada by s 21(2)(e) of the OHS Act. The VWA had not identified the extent of the supervision that it alleged Baiada should have provided.
Conclusion
The Magistrate correctly concluded that charge 3 did not give ‘reasonable information as to the nature of the charge’. My reasons for that conclusion are the same as for my conclusion in respect of ground A3(e). The word ‘adequate’, by itself, does not provide a ‘readily available standard’ of what the VWA alleges was required.
However, I do not agree with the Magistrate that details were required of who should supervise, the level and frequency of supervision and why it was required. That exceeds what the law regards as necessary.
Ground A5
Ground A5 states:
The learned Magistrate was in error in concluding that, in respect of a charge pursuant to s.21(2)(e), an allegation that information, instruction, training or supervision was not ‘adequate’ or ‘sufficient, was, as a matter of law, insufficiently specific (Ruling 1, pp 27.3 and 28.9).
The Magistrate stated:
Like the particulars in Kirk the charge provides no precise factual details about what information, instruction or training which should have been provided. In my view, I agree with the defendant’s submissions that words like ‘adequate’ and ‘sufficient’ do not satisfy the requirements of specificity as the High Court laid down in Kirk’s case at paragraph 28 …[41]
The charge itself recites a failure to provide such supervision to employees as was necessary and repeats the wording of the section. …
Similar to Charge 2 in my view, the term ‘adequate’ does not suffice as a particular at law. In relation to supervision, what level of supervision was required is questionable. Did it require a spotter to be in attendance as the defendants submitted to me, a supervisor to be present, or what level of frequency? Further there is no factual allegation about why any given level of supervision was necessary for this task.[42]
[41]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 27.
[42]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 28–9.
Baiada submitted that the VWA had given no information as to why the instruction, information or supervision was inadequate. The VWA submitted that such information had been provided.
Conclusion
For the reasons I gave in considering ground A3(e), I do not consider that the Magistrate erred as alleged by the VWA. The adjective ‘adequate’ did not provide reasonable information as to the nature of the charge.
Grounds A8 and A9
Grounds A8 and A9 state:
A8.The learned Magistrate erred in concluding that charges under s.21(1) and s.26 must include particulars of matters over which control was exercised and the extent of the control.
A9.Alternatively to ground A8, the learned Magistrate erred by concluding that the particulars referred to in ground A8 did not sufficiently identify the relevant process over which control was exercised.
The VWA did not make discrete oral submissions concerning grounds A8 and A9 or charge 4, but stated that it relied on them and relied on the submissions made in respect of grounds A3(c) and (d).[43] However, the VWA’s written submissions addressed charge 4.[44]
[43]Transcript of Proceedings, Glenister v The Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S CI 2013 5479, Ginnane J, 4 June 2014) 66.
[44]VWA’s written submissions [60].
Charge 4, which is an alternative to charge 1, provides particulars in the same terms as charge 1.
The Magistrate found that Baiada did have control over the workplace to some extent.[45]
[45]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 30.
The prosecution case was that in relation to the cleaning of the processing line Baiada had the authority and capacity to give directions in relation to safety.[46]
[46]VWA’s written submissions [65].
The Magistrate found that charge 4, as proposed to be amended, was still invalid because it did not say why Baiada had not discharged its duty by engaging a specialist cleaning contractor.
In respect of charge 4, the Magistrate stated in his first ruling:
The defendant company did have premises at Laverton North which were a workplace under s.5 in my view. The defendant company did have control over the workplace to some extent. In any event this is sufficiently alleged. …
The substance of the particulars, namely Particular (A), to ensure that there was an adequate system in place to ensure the line was not operating while people were cleaning it, and (B) to ensure there was an adequate system in place to prevent people from coming in contact with the line when it was being cleaned. Substantially repeat the particulars for Charge 1.
I note the term ‘system’ is used as I have already stressed in reading the charge is used again as it is in Charge 1. Other than the assertion that the system was inadequate in either case the particulars do not specify, again, what an adequate system would have been in either case. This again unfortunately in my view falls foul of the principles enunciated in Kirk.
Given that the matters over which control should have been exercised have not been clearly identified it is speculative whether Baiada had management or control over them. This provides another reason, in my opinion, to conclude that charge 4 has not specified an essential factual ingredient in that particular charge.
Particular (A) alleges that Baiada should have ensured that there was a system to ensure cleaning did not take place while the line was operating. Should Baiada have instituted a tag and lockout system for example? There is no allegation or specificity about that. If it was necessary to move the chain line at points during the cleaning operation there is no allegation that Baiada was in control of that particular process either, nor is it said that Baiada should have at law required Ecowize to provide its own safe work method statement on these issues.
On the authority of the recent case of Baiada in the High Court, there is no actual particular which identifies why Baiada did not fully discharge its duty to do what was reasonably practicable by engaging Ecowize to carry out the work. Even accepting that Baiada and Ecowize both owe a duty to Mr Singh, what the charge in my opinion fails to do is to identify the content of that duty. Once again the ‘control issue’ and the failure to identify the ‘reasonable practical’ measures which Baiada failed to take remain unspecified. These are in my view essential elements of a s.26 offence and their absence means that the nature of the offence has not been sufficiently disclosed.[47]
[47]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 30–1.
In his second ruling, the Magistrate stated in respect of charge 4:
The amendments now appear to address the error that was contained in the original filed charge sheets, and now deletes references to entering and leaving the workplace. The charges now, as per the proposed amendment, simply reassert the workplace was needed to be safe. Particular (3) asserts the accused had, ‘To an extent’, management or control of the workplace with respect to the processing chain line while cleaning was being undertaken by Ecowize. The words, ‘To an extent’ in my view, without more in regard to the management and control of a particular matter, in a workplace criminal prosecution, do not lead to the particularity that is required in my view, and are insufficient to identify the actual responsibility required for proving such an offence.
Further the duties of the person under s.26 of the OH&S Act only apply to matters over which the person has, ‘Management or control’. (See s. 26 sub‑s(2)). Under s. 4 sub-s(2) of OHSA this imposes, ‘Duties’ on persons who are in control or manage, ‘Matters’ that may give rise to risks to health and safety. The charge in my view still fails to identify the content of the duty in respect of the actual matter or actual risk. Why is it claimed that Baiada did not discharge its duty to do what was reasonably practicable by the engaging of a specified specialist cleaning contractor (Ecowize) to carry out the work? Even if one accepts that they both shared a duty to Mr Singh, the charge in my view still fails to identify the extent of that duty. It may have been possible that either of the two entities controlled the line and its stopping and or its starting, however in a criminal charge for an OHSA prosecution, it is my view necessary to allege why Baiada, rather than Ecowize, must perform that function. …
Further the failure to identify the reasonable practical measures which Baiada allegedly failed to do, still remains unspecified in the charge. Counsel for VWA accepted that Charge 4 and its particulars did not assert the reasonable practical measures required and did not in that respect intend to conform to my earlier ruling.[48]
[48]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 16 September 2013) 15–17.
Baiada submitted that s 26(2) made it clear that the duty owed by a person who manages or controls a workplace to any extent applies ‘only in relation to matters over which the person has management or control’. The particulars did not specify what an adequate system should have been. The matters over which control should have been exercised were not identified. There was no particular which identified why it was reasonably practicable for Baiada to implement whatever measures that it allegedly failed to implement.
Conclusion
The VWA contended that the Magistrate erred in deciding that charge 4 was not valid. That contention was contained in grounds A8 and A9. I conclude that the VWA has established that error.
Read fairly, charge 4 alleges that Baiada had, to an extent, the management and control of a workplace at Laverton. The particulars, when read with charge 4, indicate that the control extended to the chicken processing chain line. They also indicate that the failure to ensure, so far as was reasonably practicable, that the workplace, being the chicken processing chain line, was safe and without risks to health, consisted in not having an adequate system in place to ensure that when persons were cleaning the chicken processing chain line and associated equipment, the line was not operating. In this instance, the particulars provided ‘a readily available standard’ to give meaning to the expression ‘adequate system’.
The question of whether the VWA can establish the allegation that Baiada had control of part of the workplace and whether as far as was reasonably practicable the workplace was safe and without risks to health are matters to be determined at the hearing of charge 4.
I have found charge 4 valid because, unlike charge 1, it does not have as an essential element that Baiada had the duties of an employer to Mr Singh. It does have as an essential element that the person, here Baiada, did have to an extent the management or control of a workplace. The words of charge 4 contain those allegations. The particulars to charge 4 specify the matters over which it is alleged that the control existed, namely the operation of the chicken processing chain line. I do not consider that any more was required for a valid charge. I express no opinion about whether a request for further particulars might be made by Baiada.
Grounds A8 and A9 are established.
The VWA’s amendment application — grounds B1 to B5
I have previously set out the parties’ legal submissions in relation to the VWA’s proposed amendments. The grounds alleging that the Magistrate erred in respect of the amendment application were:
B.The learned Magistrate erred by ruling that each of the four charges could not be amended in accordance with the document headed ‘Draft Amendments to Particulars’ pursuant to s.8(4) of the CPA a copy of which is annexed hereto and marked with the letter ‘A’.
B1.The learned Magistrate erroneously concluded that for the purposes of s. 8(4)(a) of the CPA particulars which omit an essential element have not sufficiently disclosed ‘the nature of the offence’ (Ruling 2, paras. [6] to [14]).
B2.The learned Magistrate erroneously drew no distinction between the words ‘reasonable information as to the nature of the charge’ in Schedule 1, paragraph 1(b) and ‘sufficiently disclosed the nature of the offence’ in s. 8(4)(a).
B3.The learned Magistrate erroneously concluded that an offence amended to include an additional essential factual element would be, or likely be a ‘new offence’ for the purposes of s.8(4)(b) of the CPA (Ruling 1, pp 33.9 to 34.3; Ruling 2 paras. [11] and [25]).
B4.The learned Magistrate failed to correctly apply the tests in s. 8(4) of the CPA in respect of amendment outside the limitation period.
B5.The learned Magistrate articulated and applied an ‘extraneous material rule test’ which is not provided for in the CPA and which was generally applied in a manner not relevant to matters in issue between the parties arising under s. 8(4) of the CPA (Ruling 2 paras. [20] and [21]).
These grounds require consideration of s 8(4) of the CPA. The first requirement of that subsection is that the original charges have sufficiently disclosed the nature of the offence. The second is that the amendment does not amount to the commencement of a proceeding for a new offence. The third is that the amendment will not cause injustice to the accused. No particular submissions were directed at that requirement before the Magistrate. Before the Court, Baiada submitted that it would suffer an injustice because the limitation period would be unfairly avoided. This submission was not developed and lacked substance, as the section envisages that the operation of the limitation period will not prevent amendment of charges if the criteria of s 8(4) are satisfied.
Ground B1
For the reasons already given, I do not consider that, with the exception of charge 4, the charge-sheet before the amendment sufficiently disclosed the nature of the offences, so as to permit an application to be made to amend the charges. The existing charge-sheet, because it did not contain the essential elements of charges 1, 2 and 3 or the particulars that were necessary to give reasonable information as to the nature of the charges, did not sufficiently disclose the nature of the offences.
I do consider that charge 4 sufficiently disclosed the nature of the offence for the reasons I have given in considering grounds A8 and A9.
I also consider that the proposed amendments to charges 1, 2 and 3 do amount to the commencement of a proceeding for a new offence in respect of those charges, because the original charges were not valid. Therefore, the second requirement in s 8(4) was also not established in respect of those charges. However, I do not consider that the proposed amendments to charge 4 amounted to the commencement of a proceeding for a new offence. The essential elements of the offence were already contained in the charge.
As previously noted, no submission was put to the Magistrate about the third requirement of s 8(4).
The Magistrate erred in his finding that charge 4 could not be amended.
Ground B2
I do not accept the VWA’s submission that the Magistrate erroneously drew a distinction between the words ‘reasonable information as to the nature of the charge’, in clause 1(b) of Schedule 1, and ‘sufficiently disclosed the nature of the offence’ in s 8(4)(a).
In my opinion, the requirement of s 8(4)(a), of ‘sufficiently disclosing the nature of the offence’, directs attention to the requirements of clause 1 of Schedule 1 of the CPA, which, in turn, requires a statement of the offence and particulars giving reasonable information as to the nature of the charge. A statement of the offence must contain both of those requirements. If they are both present, the charge-sheet before the amendment sufficiently discloses the nature of the offence.
Ground B3
The VWA alleged that the Magistrate found that an offence amended to include an additional essential element would be a new offence. I do not read the Magistrate’s decision in that way. His Honour stated:
It would also be necessary to determine whether the factual elements of the offence have changed to the extent that they constitute a different offence, even though they are still laid pursuant to s. 21.[49]
[49]Victorian Workcover Authority v Baiada Poultry Pty Ltd (Unreported, Magistrates’ Court of Victoria, 15 August 2013) 34.
His Honour was referring to the second requirement in s 8(4). There was no error in his statement.
Ground B4
I have already decided that the original charge-sheet did not sufficiently disclose the nature of the offence in respect of charges 1, 2 and 3. His Honour did correctly apply s 8(4) of the CPA in respect of the proposed amendments to charges 1, 2 and 3, but not in respect of charge 4.
Charges 1, 2 and 3 did not sufficiently disclose the nature of the offence. For the reasons I have given in respect of ground A3(a), the charges and their particulars did not state that Baiada owed the duties of an employer to Mr Singh because he was an employee of Ecowize, which had been engaged by Baiada, and that Baiada had control of the workplace or part of it as the case was.
The fact that I have accepted the VWA’s case, as contained in grounds A3(b), (c) and (d), and in a limited respect in ground 3(g), that the Magistrate erred does not entitle the VWA to have the Magistrate’s ruling, that charges 1, 2 and 3 were not valid, quashed. A court in exercising judicial review powers will not quash a decision that is sustainable on one point where errors have been established on other points.[50]
[50]R v Industrial Appeals Court, Ex parte Henry Berry & Co (Australasia) Ltd [1955] VLR 156, 170 (Hudson J).
However, in the case of charge 4, I have concluded that the Magistrate’s decision that that charge did not sufficiently disclose the nature of the offence and could not be amended was in error. It involved an error of law on the face of the record.
Ground B5
The VWA did not press ground B5.[51]
[51]Transcript of Proceedings, Glenister v The Magistrates’ Court of Victoria & Anor (Supreme Court of Victoria, S CI 2013 5479, Ginnane J, 4 June 2014) 4.
However, I note that the Magistrate considered the charges both by taking the extraneous materials into account and by not taking them into account. There was no error in his approach.
Summary and conclusion
It is appropriate at this point to return to Baiada’s proposition that the only relevant grounds of the originating motion are those that relate to the Magistrate’s second ruling of 16 September 2013. Those are the grounds numbered B1 to B5.
I accept that proposition in the sense that only grounds that assert error in the second ruling could, if established, invalidate the second ruling. However, a number of the grounds numbered B1 to B5 depend on challenging the Magistrate’s first ruling. This is because the amendments that the VWA sought could only be granted if the existing charges in the charge-sheet sufficiently disclosed the nature of the offences. The errors that I have found in the Magistrate’s first ruling are only relevant to the extent that they reveal that the Magistrate failed to apply correctly the tests in s 8(4) of the CPA in respect of amendment outside the limitation period.
I consider that ground B4 is established in that the Magistrate failed to apply correctly the criteria in s 8(4) of the CPA in respect of permitting amendment outside the limitation period in the case of charge 4. The criteria contained in s 8(4) were satisfied in respect of charge 4.
I was informed by senior counsel for the VWA that in the event that the proceeding was remitted to the Magistrates’ Court for further hearing, the proposed amendments to the charge-sheet upon which the Magistrate ruled would not be relied on but a further application for amendment would be made. The details of that further amendment were not provided to the Court. If the charges met the criteria permitting amendment under s 8(4) of the CPA, then the Court should remit the charges to the Magistrates’ Court. The Court did not have to decide the terms of the amendments that might be allowed.
I raised with the parties whether, in those circumstances, it was appropriate for the Court to determine the application for judicial review, as the remedies available are discretionary. However, neither party submitted that such a course was inappropriate and therefore I proceeded to hear the application.
In view of my decision, only charge 4 should be remitted to the Magistrate’s Court.
I would therefore propose, subject to any further submission, to quash that part of the Magistrate’s order of 16 September 2013 that related to charge 4 and remit that charge to the Magistrates’ Court for hearing according to law.
I will hear the parties about the appropriate form of orders, whether the costs order in the Magistrates’ Court should be varied and concerning the costs of the proceeding in this Court.
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