Greater Shepparton Council v Magistrates' Court of Victoria
[2025] VSCA 33
•13 March 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2024 0068 |
| GREATER SHEPPARTON CITY COUNCIL | Applicant |
| v | |
| THE MAGISTRATES' COURT OF VICTORIA & ANOR (according to the attached schedule) | Respondents |
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| JUDGES: | NIALL CJ, EMERTON P and GRAY AJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 January 2025 |
| DATE OF JUDGMENT: | 13 March 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 33 |
| JUDGMENT APPEALED FROM: | [2024] VSC 282 (Watson J) |
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PRACTICE AND PROCEDURE – Appeal – Occupational health and safety – Duty to ensure safe workplace ‘so far as reasonably practicable’ for persons other than employees – Whether charge was sufficiently particularised – Particulars to be read as a whole – Charge sufficiently particularised – Leave to appeal refused.
PRACTICE AND PROCEDURE – Amendment – Whether, if invalid, charge was capable of amendment – Whether nature of offence sufficiently disclosed – Nature of offence sufficiently disclosed – Charge capable of amendment – Leave to appeal refused.
PRACTICE AND PROCEDURE – Amendment – Whether, if invalid, proposed amendments to charge would commence new proceeding – Leave to appeal refused.
Criminal Procedure Act 2009, ss 6, 8, sch 1; Occupational Health and Safety Act2004, s 23.
Baiada Poultry v WorkCover Authority (2015) 257 IR 205; Chugg v Pacific Dunlop Pty Ltd (1990) 170 CLR 249; De Romanis v Sibraa (1977) 2 NSWLR 264; Director of Public Prosecutions v Kypri (2022) 33 VR 157; Fox v DPP; Bant v Grant; Nunn v Pezzimenti (2022) 66 VR 223; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 531; Johnson v Miller (1937) 59 CLR 467; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, considered.
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| Counsel | |||
| Applicants: | Mr G Livermore SC with Ms C Currie | ||
| Respondents: | Mr J Gullaci SC with Mr T Bourbon | ||
Solicitors | |||
| Applicants: | Maddocks | ||
| Respondents: | Victoria WorkCover Authority | ||
NIALL CJ
EMERTON P
GRAY AJA:
Introduction
This application for leave to appeal from a decision of a judge in the Trial Division concerns whether a charge filed in the Magistrates’ Court of Victoria (the ‘Magistrates’ Court’) alleging a contravention of s 23 of the Occupational Health and Safety Act2004 (the ‘OHS Act’) is valid in its current form or is otherwise capable of valid amendment. The charge was brought by Mr Jones, an inspector of the Victorian WorkCover Authority (the ‘VWA’) against Greater Shepparton City Council (‘GSCC’) and arose from an incident in which a gas torch and kerosene were used to remove a blockage in a pipe used to convey hot bitumen from a truck to a bulk-storage kettle belonging to the applicant.
The applicant contends that the charge is defective and, because the relevant limitation period has expired, it cannot be amended under the Criminal Procedure Act2009 (the ‘CPA’). It says that the defect renders the charge invalid with the consequence that the Magistrates’ Court is not empowered to determine it. Resolution of the application requires attention to the statutory provisions and common law principles that dictate the level of particularity that is required for a valid charge and their application to the present circumstances.
Against the possibility that the charge was held by the magistrate to be invalid, the VWA foreshadowed an amended charge.
As will appear, the magistrate rejected the applicant’s attack on the validity of the charge. That decision was upheld by the judge in an application for judicial review by the applicant. Although the magistrate upheld the validity of the charge, it appears that had the decision gone the other way, the foreshadowed amendment would have been permitted. In turn, the judge endorsed that alternative reasoning, at least to the extent of holding that the charge was capable of amendment even though the limitation period had expired.
From the decision of the judge, the applicant seeks leave to appeal. For the reasons that follow, the charge was not invalid and the judge was correct to dismiss the proceeding for judicial review. The application for leave to appeal should be refused.
The facts
For present purposes the relevant facts are in very brief compass.
The charge arises from an investigation by the VWA into an explosion of a bitumen kettle at a plant operated by GSCC. The charge alleges an offence against s 23(1) of the OHS Act.[1]
[1]Greater Shepparton CC v Jones (Victorian WorkCover Authority) & Anor [2024] VSC 282 (‘Reasons’).
The charge was particularised as follows:
On or about 10 February 2020 at Shepparton in the State of Victoria, pursuant to section 23(1) of the [OHS Act], you were guilty of an offence in that, as an employer, you failed to ensure, so far as was reasonably practicable, that persons other than your employees were not exposed to risks to their health or safety arising from the conduct of your undertaking.
PARTICULARS
(1)Greater Shepparton City Council (ABN 59 835 329 843) (GSCC) was at all material times, a body corporate within the meaning of the [OHS Act].
(2)At all material times GSCC:
(a)operated premises at 315 Doyles Road Shepparton in the State of Victoria, known as the Doyles Road Complex (DRC) at which kettles storing bitumen were situated; and
(b)was an employer within the meaning of the Act employing persons including Rex Lodding.
(3)On 10 February 2020 at the DRC:
(a)GSCC had a site rule prohibiting the use of sources of ignition within 15 metres of vehicles filling or circulating bitumen;
(b)Mr Allen Barry (Mr Barry), a person employed by Willow's Bitumen Haulage Pty Ltd, delivered Hot Bitumen Product (HBP);
(c)The HBP in Mr Barry's tanker was heated to a temperature of approximately 195 degrees;
(d)Pipework was connected to Mr Barry's vehicle to transfer HBP from the tanker to GSCC’s kettle;
(e)Mr Barry used kerosene to aid in flushing the pipework during the delivery of the HBP; and
(f)Mr Barry subsequently used a propane gas torch, a source of ignition, to heat pipework connected to his vehicle, during attempts to remove a blockage caused by a 'slug' of bitumen stuck in the pipework.
(4)By reason of the matters referred to in Particular 3, there was a risk of injury to Mr Barry in the event that the HBP or kerosene product ignited.
(5)GSCC failed, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety, arising from GSCC’s undertaking as an employer, associated with the risks of ignition.
(6)It was reasonably practicable for GSCC to, in the event of a blockage in the pipework, to reduce the risk to health and safety, by ensuring that a gas torch was not used to melt a slug in pipework when:
(a)the pipe was connected to a bulk vessel; or
(b)the vehicle was in the bitumen transfer area of the DRC.
(7)On 10 February 2020:
(a)GSCC failed to implement the above risk control measures;
(b)Persons other than GSCC employees, such as Mr Barry, were undertaking the task; and
(c)The risk eventuated when Mr Barry used the propane gas torch.
(8)Persons exposed to risks to their health and safety by GSCC’s undertaking include, but are not limited to, Mr Barry.
The applicant applied to the Magistrates’ Court to have the charge struck out on the basis that it did not comply with the requirements of a valid charge and was incapable of amendment.
After the exchange of written submissions, on 22 November 2022, the second respondent sent an email to the applicant enclosing two documents described as ‘supplementary particulars’. The email advised that the documents contained the amendments that the second respondent would seek to make to the charge if the Magistrates’ Court determined that the charge was invalid.
On 2 August 2023, the Magistrates’ Court rejected GSCC’s application and, giving very brief oral reasons for the decision, upheld the validity of the charge.
GSCC then filed an application for judicial review in the Trial Division of the Supreme Court seeking to quash the decision of the Magistrates’ Court, and sought various consequential orders including an order dismissing the charge and the proceedings below.
The judge dismissed GSCC’s application for judicial review. In summary, the judge held:
(a)The charge in Kirk v Industrial Court (NSW)[2] is distinguishable, noting that the particulars are not mere recitations of the statutory provisions, but are sufficiently particularised so as to specify a site rule, type of risk and a measure available to minimise or avoid that risk.[3] His Honour rejected the characterisation of the charge as identifying only an ‘outcome’ rather than a ‘measure’,[4] and further emphasised that, relying on Baiada Poultry v Victorian WorkCover Authority,[5] too much significance should not be placed on the use of the word ‘measure’ in the judgment of the plurality in Kirk.[6] Accordingly, the charge complied with the requirements of a valid charge under the CPA,[7] and;
(b)Had his Honour held the charge to be invalid for failing to comply with the requirements of the CPA, the charge-sheet was capable of amendment because, inter alia, the nature of the offence was sufficiently disclosed in the charge-sheet.[8]
[2](2010) 239 CLR 531; [2010] HCA 1 (‘Kirk’).
[3]Reasons, [25].
[4]Ibid [26].
[5](2015) 257 IR 205; [2015] VSCA 344 (‘Baiada’).
[6]Reasons, [27].
[7]Ibid [23]–[27].
[8]Ibid [34]–[39].
Statutory provisions
Before coming to the proposed grounds of appeal, it is convenient to start with the offence provision. Section 23 of the OHS Act provides:
23 Duties of employers to other persons
(1)An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)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 Act 2009).
Relevantly, the elements of an offence against s 23 are that:
(a)the accused is an employer;
(b)there was a risk to the health and safety of persons other than the accused’s employees, which arose from the accused’s undertaking;
(c)there was a measure, or measures, that would have reduced that risk;
(d)it was reasonably practicable for the accused to implement the identified measures; and
(e)the accused failed to implement those measures.
The relevant statutory provisions that prescribe the form and content of a charge are found in the CPA.
Section 6(1)(a) of the CPA provides that a criminal proceeding is commenced by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court. A charge-sheet must be in writing, signed by the informant personally and comply with sch 1.[9] Section 8(1) provides that the Magistrates’ Court may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused. Sections 8(3)–(4) apply where the proposed amendment would be made after the expiry of any limitation period. They provide:
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(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]CPA, s 6(3).
Section 9(1) provides a charge-sheet is not invalid by reason only of the failure to comply with sch 1.
Schedule 1 to the CPA sets out various matters concerning the content of both a charge and charge-sheet. A charge must state the offence that the accused is alleged to have committed and contain the particulars, in accordance with cl 2, that are necessary to give reasonable information as to the nature of the charge.[10] Clause 2(1) provides that the particulars of the offence charged must be set out in ordinary language and that use of technical terms is not necessary. That point is reinforced by cl 7 which provides that if it is necessary to describe anything in a charge, it is sufficient to describe the thing in ordinary language in a manner that indicates with reasonable clarity the thing referred to.
[10]CPA, sch 1 cl 1.
With those statutory provisions in mind, we turn to the arguments on the application for leave to appeal.
Ground 1: Whether the charge contained the particulars necessary to give reasonable information as to the nature of the charge
The applicant’s submissions
The applicant submits that the charge fails to give reasonable information as to the nature of the charge, having regard to the elements of the offence.
The applicant commences its submission by noting the elements of an offence under s 23 of the Act which are set out in paragraph 15 above. With a particular focus on elements (c) and (d), and particular 6 of the charge, the applicant says that the charge does not satisfy the requirements of s 6(3) and sch 1 cl 1 of the CPA,[11] because it fails to specify any ‘reasonably practicable’ measure or measures it is alleged should have been implemented to address the risk but were not.
[11]Section 6(3) of the CPA is the mechanism by which cl 1 of sch 1 of the CPA imposes a requirement. Paragraph (c) relevantly provides that ‘A charge sheet must … comply with Schedule 1’.
The applicant relies on the reasons for judgment of the plurality in Kirk in support of the proposition that the charge must identify what measures could have been taken to reduce the risk of injury and that there is a distinction between an outcome, namely the reduction of risk, and the reasonably practicable means to achieve that outcome.[12] Citing Chugg v Pacific Dunlop Pty Ltd, the applicant submits that the charge must identify the ‘means’ by which the informant alleged it was reasonably practicable to adopt to ameliorate the risk to health and safety of the persons other than employees in the workplace.[13]
[12]Kirk (2010) 239 CLR 531, 557–8 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J agreeing at [113]); [2010] HCA 1.
[13](1990) 170 CLR 249, 236 (Dawson, Toohey and Gaudron JJ); [1990] HCA 41 (‘Chugg’).
The applicant says that particular 6 of the charge, which is addressed to the measures reasonably practicable but not taken, confuses an outcome with the means to realise that outcome. It submits that particular 6, that reads:
It was reasonably practicable for GSCC to, in the event of a blockage in the pipework, to reduce the risk to health and safety, by ensuring that a gas torch was not used to melt a slug in pipework when:
(a)the pipe was connected to a bulk vessel; or
(b)the vehicle was in the bitumen transfer area of the DRC,[14]
fails to disclose the necessary act or omission constitutive of the offence.
[14]Emphasis added by the applicant.
The applicant submits that alleging that something should be ‘ensured’ or ‘made certain’, does not disclose the reasonably practicable means or measures by which it is alleged that the desired outcome – that a gas torch is not used to remove a blockage in a pipe used to convey hot bitumen – ought to be achieved.
The applicant submits that the trial judge was wrong to distinguish Kirk[15] because the particulars in Kirk were in materially the same form; and the vice in Kirk, namely the failure to state what measures ought to have been taken, is present here.
[15]Reasons, [24].
Finally, the applicant submits that the particulars upheld in Baiada and the reasoning of the majority in that case provide no assistance to the prosecution in this case. The issue in Baiada was the sufficiency of the description ‘adequate system’. By majority, this Court of Appeal held the charge in Baiada to be valid because use of the imprecise descriptor ‘adequate’ could still found a valid charge if the context of the case indicated the ready availability of a standard which gave it meaning.[16] As the applicant puts it, the wording of the Baiada charges were not similar to, and posed a different question to, the Kirk particular and particular 6 in this case.
The second respondent’s submissions
[16]Baiada (2015) 257 IR 204, 220 [53] (Ferguson and McLeish JJA, Robson AJA dissenting at 245–6 [174]–[179]); [2015] VSCA 344.
The second respondent submits that the test contained in sch 1 cl 1 of the CPA is a statutory test and not a common law test.[17] It submits that it is necessary to focus on the language of the statute and that whether the particulars contained in a charge provide ‘reasonable information’ as to the nature of the charge is a question of fact and degree.[18] Citing Nettle JA in Director of Public Prosecutions v Kypri for the proposition that the common law requirements of whether a valid charge contains the essential legal and factual elements of the offence is to be viewed from the perspective of a ‘reasonable defendant’,[19] it submits that the subject charge provides reasonable information to the applicant in how the particulars address the elements of the offence.
[17]Citing Fox v DPP; Bant v Grant; Nunn v Pezzimenti (2022) 66 VR 223; [2022] VSCA 38 (‘Fox v DPP’).
[18]Ibid 238 [51] (Kennedy, Walker and Whelan JJA).
[19](2011) 33 VR 157, 163 [16]; [2011] VSCA 257 (‘Kypri’).
The second respondent submits that particular 6 provides reasonable information about the measure that the applicant should have adopted to reduce the risk of bitumen or kerosene ignition — that a gas torch should not be used to melt a slug in pipework in order to unblock that pipework. This, they submit, is distinct from ensuring an outcome; for example, ensuring that an explosion does not occur in the bulk vessel.
Secondly, the second respondent submits that Kirk is distinguishable on the basis that the charge does more than merely recite the statutory language, as the charge in Kirk was held to do,[20] but rather, clearly identifies a reasonably practicable measure that would have reduced the alleged risk.
[20]Kirk (2010) 239 CLR 531, 557 [25] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J agreeing at [113]); [2010] HCA 1.
Thirdly, they submit that ground 1 restates an argument that was considered and rejected by this Court in Baiada — namely that the charge must be invalid because it fails to specify the measures that the accused should have taken.[21] The second respondent relies on the following propositions which, it says, can be drawn from the reasons of Ferguson and McLeish JJA in Baiada:
(a)The plurality’s reasoning in Kirk does not support the proposition that there is a requirement on the prosecution to specify the detailed actions that it would have been reasonably practicable for an accused to take.[22]
(b)Kirk must be understood in the context of the statutory regime that applied to that case. The accused bore the onus of proof on the question of reasonable practicability in Kirk.[23]
(c)A failure to ensure a step is taken to achieve a particular outcome can also be described as a failure to have in place measures sufficient to achieve that outcome. If the outcome is sufficiently particularised, then it will be clear what was the act or omission alleged to constitute the offence.[24]
(d)Sufficient information may be given about the ‘reasonable practicability’ element by providing sufficient particulars of the offending act or omission. If that is done, the charge alleges that by not doing the act or by not making the omission there was a failure to reduce risks to health or safety so far as was reasonably practicable.[25]
(e)A charge may be valid but still require the provision of further particulars before a trial.[26]
[21]Baiada (2015) 257 IR 204, 219[48] (Ferugson and McLeish JJA, Robson AJA dissenting at 244 [163])); [2015] VSCA 344.
[22]Ibid 219 [48].
[23]Ibid 219 [48]–[49].
[24]Ibid 219 [50].
[25]Ibid 219 [51].
[26]Ibid 220 [52]–[54].
Decision on ground 1
General principles concerning the particularity of charges
In Fox v DPP this Court considered in some detail the requirements that apply to the bringing of a charge under the CPA. The Court considered the distinction between a charge-sheet and a charge, noting that it is the step of filing a charge-sheet that vests the Magistrates’ Court with jurisdiction to hear the proceeding.[27]
[27]Fox v DPP (2022) 66 VR 223, 226–7 [7] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38.
The Court noted the obligation in sch 1 cl 1(b) of the CPA is to provide those particulars that are ‘necessary to give reasonable information as to the nature of the charge’.[28] The Court noted a number of provisions of the CPA which applied after a charge-sheet is filed,[29] and which are directed to ensuring the accused is properly informed about the charge and the nature of the prosecution’s case.[30] For example, they include the service of a preliminary brief[31] and, importantly for present purposes, s 32(2) which provides that an accused is entitled to reasonable particulars of the charge. In that respect the Court noted the distinction between those matters that must be contained within a charge, often described as the essential elements or ingredients of the offence but sometimes referred to as particulars, and those matters that need not be contained within a charge, but must nonetheless be provided to the accused prior to any final hearing and which the Court noted are commonly referred to as particulars.[32] In Baiada, this Court described the ‘nature of the charge’ as involving the conduct making up the actual ingredients of the offending.[33]
[28]Ibid 227 [8].
[29]Including ss 24, 32, 39, 42, 43 and div 4 pt 3.2 of the CPA.
[30]Fox v DPP (2022) 66 VR 223, 227 [9] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38.
[31]Section 24 of the CPA provides for a preliminary brief to be served on an accused within 21 days after a charge-sheet is filed.
[32]Fox v DPP (2022) 66 VR 223, 228 [10] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38. See also John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 519–20 (Mason CJ, Deane and Dawson JJ); [1987] HCA 42 (‘John L’).
[33]Baiada (2015) 257 IR 204, 210 [16] (Ferugson and McLeish JJA); [2015] VSCA 344.
Although the form of a charge and the ability to amend it are governed by the CPA, this Court observed in Baiada that the requirements of the CPA do not supplant the common law, which may elucidate what constitutes ‘reasonable information’ for the purpose of sch 1 cl 1.[34] In that context, the Court noted the similarity between the requirements of the CPA and the common law as explained in cases including Johnson v Miller[35] and John L Pty Ltd v Attorney-General (NSW)[36] in the High Court. As explained in Kirk:
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’. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify ‘the time, place and manner of the defendant's acts or omissions’. McTiernan J referred to the requirements of ‘fair information and reasonable particularity as to the nature of the offence charged’.[37]
Particulars in the context of OH&S offences
[34]Ibid 208 [5] (Ferguson and McLeish JJA, Robson AJA agreeing at 221 [57]).
[35](1937) 59 CLR 467, 486; [1937] HCA 77.
[36]John L (1987) 163 CLR 508, 519–20 (Mason CJ, Deane and Dawson JJ); [1987] HCA 42.
[37]Kirk (2010) 239 CLR 531, 557–8 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J agreeing at [113]) (citations omitted); [2010] HCA 1.
Although the applicant did not submit that a prosecution under the OHS Act attracts any special principles, it says that the charge must adequately reflect the elements of the offence and in particular the requirement that the prosecution prove that there were reasonably practicable means to reduce or eliminate the relevant risk. In this respect, the applicant relied heavily on the decision of the High Court in Kirk.
Kirk is important but not dispositive of the issues in this case. In Kirk, the plurality held that the charges there under consideration did not meet the common law and statutory requirements to disclose the substance of the charge the accused was called upon to meet, including by stating the time, place, and manner of the defendants’ acts or omissions that satisfied the elements of the offence.[38] Kirk shows the importance of setting out in a charge the essential factual ingredients of the offence. Specifically, the plurality noted that, bearing in mind a reverse onus, one of the elements that the prosecution had to prove was the measures that the company could have taken but did not take to address the risk of harm. Once those measures had been identified, it was for the accused to prove that they were not reasonably practicable.[39]
[38]Ibid [26]–[28].
[39]Ibid [16], [27].
The flaw in the charge identified by the High Court was that it merely parroted the terms of the section and did not descend to the particular acts or omissions alleged against the accused.[40]
[40]Ibid [25]–[28].
Three points of present significance can be gleaned from Kirk. The first is that the statutory language considered was different to the CPA.[41] That said, each regime is informed by the common law and, as this Court said in Baiada the ‘“nature of the charge” involves the conduct making up the actual ingredients of the offending’.[42]
[41]Baiada (2015) 257 IR 204, 210 [13] (Ferugson and McLeish JJA); [2015] VSCA 344.
[42]Ibid [16].
Secondly, this Court also noted in Baiada that the need to state the measures that the accused failed to take does not address the level of particularity that is required in a given case. Indeed, in Baiada it was held to be sufficient to state that the accused had failed to put ‘adequate measures’ in place to avoid the relevant risk of harm where those measures were connected to a particular risk. The full content of what were said to be the adequate measures were a proper matter for particulars but not essential to the validity of the charge.[43]
[43]Ibid 219–20 [49]–[52].
Thirdly, although this Court found the charge was wanting, it did not hold that the deficiency deprived the trial court of jurisdiction, noting that no application was made in the Court of Appeal to quash the orders of the Industrial Court requiring Mr Kirk and his company to answer the offences charged.[44] Importantly, the plurality said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges.[45] This observation is consistent with what had been earlier quoted with approval in John L, that it was not necessary for the information to contain ‘all such material as a defendant may require, upon an application for particulars, for the preparation of [the] defence’.[46]
[44]Kirk (2010) 239 CLR 531, 559 [30] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ, Heydon J agreeing at [113]); [2010] HCA 1.
[45]Ibid.
[46]John L (1987) 163 CLR 508, 520 (Mason CJ, Deane and Dawson JJ); [1987] HCA 42, quoting De Romanis v Sibraa (1977) 2 NSWLR 264, 292 (Mahoney JA). See also Baiada (2015) 257 IR 204, 214 [31] (Ferugson and McLeish JJA); [2015] VSCA 344.
Distilled to its essence, the applicant’s submission is that Kirk requires the informant to specify the measures that were reasonably practicable to take but were not taken. The applicant’s submissions were largely predicated on a conceptual distinction between the removal or amelioration of a risk and the means by which that might occur. This is sometimes expressed as the distinction between an outcome and the means of achieving the outcome. The applicant says that particular 6 of the charge is a statement of outcome that fails to limit or identify the means or potential methods by which that outcome might result. For example, the applicant submits that it could ensure that a gas torch was not used to unblock the pipe by placing a supervisor at the door preventing anyone from bringing in a gas torch or by erecting a sign advising that use of a gas torch is prohibited in the area. Without the specification of the means by which the reduction in risk might occur, the applicant submits that the charge fails to give reasonable information about the nature of the charge.
The first error in this submission is that it overstates the distinction between an outcome and a means of achieving an outcome. Such a distinction may be an important one for the purpose of determining whether the statement of the offence is adequate, but the distinction may be a fine one. Thus the High Court said in Chugg, albeit in a slightly different context, that:
In some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide ‘so far as is practicable’ a safe workplace. In other cases the same inference will arise from the identification of some method which would remove or mitigate a perceptible risk or hazard.[47]
[47]Chugg (1990) 170 CLR 249, 260–1 (Dawson, Toohey and Gaudron JJ) (citations omitted); [1990] HCA 41.
Without being prescriptive, such cases may include circumstances where the cause of the risk involves an obvious and extreme danger that is to be avoided rather than regulated. As in Chugg, the charges were framed as, inter alia, arising from the ability of an employee to enter a trapping space whilst carrying out maintenance works on a piece of industrial machinery — not as a failure to manage, supervise or direct such entry.[48]
[48]Ibid 256.
Secondly, the applicant elides the jurisdictional requirement to state the nature of the charge with the obligation, achieved through various provisions of the CPA and trial practice, to provide sufficient particulars so as to enable the accused to have a fair trial. As Baiada demonstrates, consistently with what is said in Kirk, the question of whether a charge gives reasonable information about the nature of the charge is not answered by asking whether the accused has sufficient information for a fair trial.
It may be accepted that the charge had to provide sufficient information about the acts or omissions of the applicant said to constitute the elements of the offence under s 23 of the OHS Act. It did so. In our view, the charge gives reasonable information about the nature of the charge and therefore satisfies that requirement of the CPA.
Although the applicant sought to quarantine particular 6 as being the only clause of the charge relevant to the identification of the means that could have been taken and which would have eliminated or reduced the risk, other parts of the charge were also relevant. To be read fairly, the charge has to be read as a whole. Particulars 3 and 4 set out the risk — namely the risk of injury in the event of ignition of the bitumen or kerosene, the applicant’s knowledge of that risk, and the circumstances as to how it arose at the relevant time. Those circumstances are very specific.
The mechanism for reducing the risk is also very specific: ensure that a gas torch is not used to unblock the pipe during the transfer of bitumen.
Given that, as recorded in particular 3(a) of the charge, the applicant has a policy of prohibiting sources of ignition within 15 meters of vehicles filling or circulating bitumen, it is informative for the charge to state that it was reasonably practicable for the applicant to ensure that a specified piece of equipment (which obviously uses a live flame) is not used for a particular function in order to reduce that risk of ignition.
Indeed, in the course of argument the applicant accepted that it would have been adequate if the charge had alleged a failure to ensure compliance with the applicant’s policy contained in particular 3, which referred to a ‘site rule prohibiting the use of sources of ignition within 15 metres of vehicles filling or circulating bitumen’.
Recourse to the outcome in Kirk does not assist the applicant. This is a far cry from a mere repetition of the words of the offence provision which was the concern in Kirk. Both Kirk and Baiada involve consideration of how a particular function might be performed with less risk. This case is different in that it does not involve an argument about how a gas torch might be used safely or what measures might be employed to regulate its use so as to reduce risk. Rather it is about a prohibition of a particularly dangerous means of unblocking pipework so as to avoid a point of ignition. The relevant risk is the ignition of fumes or vapours and the measure to reduce that risk involved ensuring that a gas torch was not used in a specified manner.
Ground 1 must be rejected.
Ground 2: Whether the trial judge erred in finding that the charge-sheet sufficiently disclosed the nature of the offence such that it was capable of amendment
The applicant’s submissions
The applicant submits that the trial judge erred in ruling that, if the charge failed to comply with the requirements for validity under the CPA, the charge-sheet sufficiently disclosed the nature of the offence such that it would be capable of amendment.
The applicant noted that, given the statutory limitation period for the alleged offence has expired,[49] the second respondent is constrained in its power to amend the charge.[50] The applicant submitted that s 8(4) of the CPA establishes three pre-conditions to the valid amendment of a charge-sheet after expiry of a statutory time limit. The first of these pre-conditions, contained within s 8(4)(a), is that the charge-sheet, prior to amendment, must sufficiently disclose the nature of the offence.
[49]For an offence charged under s 23 of the OHS Act, s 132 of the OHS Act requires the prosecution to be brought within two years after the offence first comes to the notice of the VWA.
[50]Citing Fox v DPP (2022) 66 VR 223, 243–4 [73] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38.
The applicant submits that the unamended charge does not disclose any of the measures which the second respondent proposes be introduced in the amended charge. It submits that the proposed amendments delete reference to what is specified in particular 6 as the alleged reasonably practicable measure which the applicant could have taken to reduce the risk, and proposes to include three new and different alleged means or measures. It says that nothing in the amended charge would disclose to a reasonable defendant what the alleged offence was that it should have (but did not) do in the terms of the proposed amendments.
The second respondent’s submissions
The second respondent says that the applicant’s reliance on what it contends are the different allegations contained in the potential amendments mistakenly conflates the requirements contained in s 8(4)(a) and (b) of the CPA. The potential amendments do not bear on whether s 8(4)(a) has been satisfied. That question, it contends, falls to be determined solely by whether the current charge-sheet sufficiently discloses the nature of the offence.
The second respondent submits that the current charge-sheet gives reasonable information to the applicant as to the nature of the charge as it discloses the essential elements of the offence pursuant to s 23 of the OHS Act. This would mean not only that the charge-sheet sufficiently discloses the nature of the offence,[51] but that, were it found not to comply with sch 1 cl 1 of the CPA, it could not reasonably be said that the charge-sheet also fails to inform the applicant, in general terms, of the kind of offence with which it is charged.
[51]Fox v DPP (2022) 66 VR 223, 242 [65] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38.
The current particulars clearly identify the alleged risk to health and safety as the risk associated with ignition of the bitumen or kerosene. The charge articulates a means of reducing that risk — by ensuring that an ignition source (ie, a gas torch) is not used in a specified area. In this way, the second respondent submits that the applicant’s real complaint is that the particulars do not specify, in detail, the ways in which it should have ensured that a gas torch was not used to melt a slug in pipework when the pipe was connected to a bulk vessel or when a vehicle was in the bitumen transfer area of the DRC. In other words, the applicant seeks further and better particulars of the charge. The second respondent then contends that s 8(4)(a) does not demand that level of specificity and, as the charge-sheet satisfies s 8(4)(a) of the CPA, it is capable of amendment.
Decision on ground 2
The power to amend after the limitation period has expired
The applicant accepted that, notwithstanding its argument as to the validity of the charge, the Magistrates’ Court had jurisdiction on the filing of the charge-sheet and, subject to meeting the conditions of ss 8(3) and (4), could have permitted the informant to amend the charge so as to add any missing ingredient.
The power of amendment in s 8(3) and (4) is a broad one. Subject to compliance with its express stipulations, a charge-sheet may be amended to cure a defect in a charge, even where the defect is such as to otherwise cause the charge to be invalid at common law.[52] The ability to amend the charge, notwithstanding a defect which might have rendered it invalid at common law, led this Court to prefer to describe such a defective charge as ineffective rather than invalid.[53] That is to say an ineffective charge is not a nullity and is capable of being amended even though in its own unamended form it would be unable to sustain a conviction.
[52]Ibid [29].
[53]Ibid [52].
Subject to compliance with ss 8(3) and (4), an invalid charge can be amended after the expiration of the limitation period. The first limitation on the power of amendment in those circumstances is that the charge-sheet, before the amendment, ‘sufficiently disclosed the nature of the offence’.[54] That criterion is to be determined on the face of the existing charge-sheet.
[54]CPA, s 8(4)(a).
In Fox v DPP this Court noted the difference in language between s 8(4) which requires that the charge-sheet ‘sufficiently disclosed the nature of the offence’ and sch 1 cl 1 of the CPA which requires a charge to give reasonable information as to the nature of the charge. The Court concluded that the former contained a less demanding requirement and ‘focuses on whether prior to the expiration of the limitation period, the accused was, in general terms, informed of the kind of offence with which they were charged’.[55]
[55]Fox v DPP (2022) 66 VR 223, 242 [68] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38.
Given our conclusion on ground 1, the charge provided sufficient information as to the nature of the charge and also met the less stringent test for valid amendment under the CPA. That being so, ground 2 must fail.
Ground 3: Whether the trial judge erred in not finding that the proposed amendments failed to satisfy the requirements of s 8(4) of the CPA because, inter alia, it would result in the commencement of a proceeding against the applicant for a new offence.
The applicant’s submissions
The applicant submits that the trial judge erred in not addressing the issue of compliance with s 8(4) of the CPA in relation to the prosecution’s ‘proposed amendments’ and should have found that the proposed amendments would be invalid, particularly because they would result in the commencement of a proceeding against the applicant for a new offence, contrary to s 8(4)(b) of the CPA.
The applicant submitted that the task for this Court in considering whether an amendment is permissible under s 8(4) is to compare the proposed amended charge to the original charge and determine whether it merely provides clarification of the original charge or introduces a new offence.
The applicant contended that the second respondent’s proposed amendment to the original charge seeks to delete altogether the allegation, contained in particular 6, that the applicant should have ensured ‘a gas torch was not used to melt a slug in pipework when (a) the pipe was connected to a bulk vessel; or (b) the vehicle was in the bitumen transfer area of the DRC’. Thus, the applicant seeks to introduce a new offence constituted by different acts or omissions. This, it submits, fails the test in s 8(4)(a), is prohibited by s 8(3) and fails the test in ss 8(4)(b) and (c) of the CPA. Therefore, the charge cannot be amended in the manner proposed by the second respondent.
The applicant further notes that consideration would be needed as to whether it would be appropriate to permit each of the three new allegations to be included in the same charge-sheet, even if they were not laid outside of the statutory limitation period.
The second respondent’s submissions
The second respondent submitted that the original charge-sheet sufficiently disclosed the nature of the alleged offence and that the applicant has not advanced any reason as to why permitting the potential amendments would cause it to suffer injustice, pursuant to s 8(4)(c) of the CPA. The second respondent submitted that the potential amendments would not cause any injustice to the applicant, particularly given the early stage of the proceeding in the Magistrates’ Court and the brief of evidence that has been served on the applicant.[56]
[56]In Fox v DPP, this Court held that it is permissible to have regard to materials other than the charge-sheet in determining whether the amendment in question would cause injustice to an accused: Fox v DPP (2022) 66 VR 223, 235 [42] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38.
With regards to the applicant's submission that the potential amendments would amount to the commencement of a proceeding for a new offence, the second respondent submitted that this is a case-specific inquiry which requires a comparison between the offence initially alleged and the offence after the amendment. It contends that an amendment which cures a defect that would have caused a charge to be invalid at common law does not necessarily involve the commencement of a proceeding for a new offence.[57]
[57]Citing Fox v DPP (2022) 66 VR 223, 244 [73(h)(ii)] (Kennedy, Walker and Whelan JJA); [2022] VSCA 38.
The second respondent submitted that the potential amendments do not abandon the offence that is currently alleged against the applicant.
Decision on ground 3
In the light of our conclusion on proposed grounds 1 and 2, this ground does not need to be resolved.
In order to determine whether a proposed amendment would involve the laying of a new charge, it is necessary to compare the existing charge with a proposed amendment. In this case, the second respondent has indicated that its proposed amendment was only advanced in the event that the charge was found to be defective. That is an unsatisfactory position for the prosecution to take for the following reason. It is up to the prosecution to bring forward the case it wishes to prosecute. If it takes the view that either the proposed amendment reflects the case it will seek to make, or sets out further particulars that it intends to provide, then it should not be advancing it in the conditional way that it has.
It is important to recognise however, that the proceeding in the Trial Division was an application for judicial review of the decision of the magistrate. The magistrate did not provide any detailed reasons in relation to the proposed amendment because her Honour found the charge to be adequate in its original form. Neither the magistrate nor the judge formed a concluded view about the proposed amendment. The judge went no further than concluding that the existing form of the charge sufficiently disclosed the nature of the offence and therefore met the requirements provided in s 8(4)(a) of the CPA. The correctness of that conclusion is the subject of ground 2.
In circumstances where the prosecution is not seeking to propound the proposed amendment and the charge may be the subject of further particulars that do not reflect the proposed amendment, it is neither necessary nor appropriate for this Court to determine ground 3. We would refuse leave to appeal in respect of ground 3 on that basis.
Conclusion
The application for leave to appeal should be refused.
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SCHEDULE OF PARTIES
GREATER SHEPPARTON CITY COUNCIL Applicant and THE MAGISTRATES’ COURT OF VICTORIA First respondent RHYS HOWELL JONES
(VICTORIAN WORKCOVER AUTHORITY)
Second respondent
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