Hughes v Canon Foods Services Pty Ltd
[2009] WASC 276
•18 SEPTEMBER 2009
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HUGHES -v- CANON FOODS SERVICES PTY LTD [2009] WASC 276
CORAM: McKECHNIE J
HEARD: 7 SEPTEMBER 2009
DELIVERED : 18 SEPTEMBER 2009
FILE NO/S: CIV 2248 of 2009
MATTER :Application under the Magistrates Court Act 2004 s 36 for a review order against Magistrate Jones, Magistrate of the Armadale Magistrates Court at Armadale Ex Parte Patricia Ann Hughes
Prosecution between Patricia Ann Hughes and Canon Food Services Pty Ltd
BETWEEN: PATRICIA ANN HUGHES
Applicant
AND
CANON FOODS SERVICES PTY LTD
Respondent
FILE NO/S :CIV 2249 of 2009
MATTER :Application under the Magistrates Court Act 2004 s 36 for a review order against Magistrate Jones, Magistrate of the Armadale Magistrates Court at Armadale Ex Parte Patricia Ann Hughes
A prosecution between Patricia Ann Hughes and Ghiagarajan ('Raj') Gopal
BETWEEN :PATRICIA ANN HUGHES
Applicant
AND
GHIAGARAJAN ('RAJ') GOPAL
Respondent
FILE NO/S :CIV 2250 of 2009
MATTER :An application under Magistrates Court Act 2004 s 36 for a review order against Magistrate Jones, Magistrate of the Armadale Magistrates Court at Armadale Ex Parte Patricia Ann Hughes
A prosecution between Patricia Ann Hughes and Richard Henry Pace
BETWEEN :PATRICIA ANN HUGHES
Applicant
AND
RICHARD HENRY PACE
Respondent
FILE NO/S :CIV 2251 of 2009
MATTER :An application under the Magistrates Court Act 2004 s 36 for a review order against Magistrate Jones, Magistrate of the Armadale Magistrates Court at Armadale Ex Parte Patricia Ann Hughes
A prosecution between Patricia Ann Hughes and John Frederick Dickenson
BETWEEN :PATRICIA ANN HUGHES
Applicant
AND
JOHN FREDERICK DICKENSON
Respondent
Catchwords:
Criminal law and procedure - Disclosure requirement - Whether disclosure can be ordered before a plea of not guilty is entered
Legislation:
Criminal Procedure Act 2004 (WA), s 60, s 61, s 137, s 138
Result:
Review order made
Disclosure order set aside
Category: A
Representation:
CIV 2248 of 2009
Counsel:
Applicant: Ms A J Crighton-Browne
Respondent: Mr M W Schwikkard
Solicitors:
Applicant: Worksafe
Respondent: Jackson McDonald
CIV 2249 of 2009
Counsel:
Applicant: Ms A J Crighton-Browne
Respondent: Mr M W Schwikkard
Solicitors:
Applicant: Worksafe
Respondent: Jackson McDonald
CIV 2250 of 2009
Counsel:
Applicant: Ms A J Crighton-Browne
Respondent: Mr M W Schwikkard
Solicitors:
Applicant: Worksafe
Respondent: Jackson McDonald
CIV 2251 of 2009
Counsel:
Applicant: Ms A J Crichton-Browne
Respondent: Mr M W Schwikkard
Solicitors:
Applicant: Worksafe
Respondent: Jackson McDonald
Case(s) referred to in judgment(s):
Anthony Hordern & Sons v The Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1
Re An Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151
McKECHNIE J: This case is not about the duty of prosecution disclosure. It is a case about the timing of the prosecution duty. Specifically it concerns the proper construction of the Criminal Procedure Act 2004 (WA) and the scheme of disclosure by the prosecution. This case is also not about a judicial discretion to order disclosure. The applicant does not suggest that the magistrate's discretion miscarried. The applicant says there was no power to order disclosure.
So what is this case all about? The case is about whether the prosecutor of a listed simple offence must give disclosure to a defendant before that defendant has entered a plea of not guilty.
The case arises in this way. On 29 May 2006 Mr Blake Robert Rodwell sustained injury to his left hand and arm at the Canon Foods factory in Canningvale. On 21 May 2009 the applicant, who is duly authorised to do so, commenced a prosecution against the respondents, being the company, two directors and a person who it is alleged had not taken reasonable care to avoid adversely affecting the safety or health of another person for an act or omission at work.
The matters came before the Armadale Magistrates Court on 22 June 2009. The applicant was represented by Mr Kevin Burgoyne and the respondent by Ms Renae Louise Harding. Ms Harding sought a two month adjournment to provide the respondents with advice and because one of the respondents, Mr Gopal, was proceeding on a month's leave out of Australia that evening.
After some discussion about the date, Ms Harding continued:
I would also be seeking some orders from your Honour this morning. We have written to the prosecution requesting copies of relevant documents relating to each of the different charges; namely, being all statements that they have taken regarding the different charges, any transcripts of interviews that they have for the interviews that the WorkSafe inspectors conducted in the three years post the incident, as well as copies of CCTV footage that our client Canon Foods had actually provided but hadn't foresaw to keep copies of.
I am instructed by my friend - - -
HIS HONOUR: What's the order you're seeking.
HARDING, MS: The order I am seeking, your Honour, would be that an order be made that the prosecution provides to us in respect of each of the accused copies of all statements that were taken by WorkSafe in relation to the charges, copies of all transcripts of interviews - in relation to all interviews that were conducted by WorkSafe - - -
HIS HONOUR: There will be an order for disclosure. That is all I will make it.
HARDING, MS: Fantastic, your Honour.
BURGOYNE, MR: Your Honour, in relation to these matters, these matters are simple offences and in relation to disclosure there is no requirement for disclosure for this type of offence under the Criminal Procedure Act. I have voluntarily said to my friend that the CCTV footage and any transcripts of interviews between the inspectors and the accused and any signed statements would be provided on a voluntary basis, however, your Honour, looking at the Criminal Procedures Act indictable offences and prescribed offences certainly have the procedures for them but certainly not for simple offences.
HIS HONOUR: I have said I will order it and I am going to so order it. I am going to adjourn the matter to 17 August. A prosecution notice will issue to each of these four accused and I order the prosecution to give disclosure in all these matters. (ts 3, 4)
It would have saved a lot of trouble and expense if the magistrate had taken the time to hear submissions on the issue of disclosure. It may have avoided him falling into error. At all events none of the respondents entered pleas either of guilty or not guilty and the matter was adjourned.
On 10 August 2009 Jenkins J made a review order and programming orders on the applicants' motion, the single ground of which is:
The learned Magistrate did not have jurisdiction or power to make the order identified in paragraph 1 of this Originating Motion before the Accused had entered a plea to the charge described in the Prosecution Notice made by Patricia Ann Hughes on 21 May 2009.
Disclosure under the Criminal Procedure Act 2004 (WA)
The Criminal Procedure Act was introduced following a comprehensive enquiry into civil and criminal justice by the Law Reform Commission. That Commission had noted the need for pre‑trial disclosure. Recommendation 27.2 noted the need to balance the advantages of disclosure against the expense associated with it. For the purposes of disclosure the Criminal Procedure Act creates a hierarchy of offences according to their seriousness as follows:
•Indictable offences
•Prescribed simple offences
•Listed simple offences
•Simple offences
It is unnecessary to examine the disclosure requirements and procedures for indictable offences and prescribed simple offences. The charges laid against the respondents are listed simple offences. Under the Criminal Procedure Regulations 2005 (WA) sch 4 Item 6 offences under the Occupational, Safety and Health Act 1984 (WA) are listed simple offences for the purposes of Criminal Procedure Act s 60.
The respondent submitted that the charges are serious by reason of the onerous burdens under the Occupational, Safety and Heath Act 1984 (WA) and the maximum penalties. So much may be accepted but it is an irrelevant consideration. Parliament has deemed the offences as listed simple offences for the purposes of the Criminal Procedure Act and that is an end to the matter.
No power until a plea of not guilty
Section 60 is within pt 3 - Prosecutions in courts of summary jurisdiction. Division 6 procedure for dealing summarily with any charge. Section 60 provides:
(1)In this section and sections 61 and 62, unless the contrary intention appears -
listed simple offence means a simple offence that is prescribed to be a listed simple offence for the purposes of this section.
(2)This section applies if an accused pleads not guilty to -
(a)an either way charge that is to be dealt with summarily; or
(b)a charge of a simple offence, whether orally or by means of a written plea,
and the court does not discharge the accused under section 128(2) or (3).
…
(4)In the case of a charge of a listed simple offence, the court -
(a)may order the accused to comply with section 62; and
(b)in any event must adjourn the charge to a new court date that allows a reasonable time for -
(i)the prosecutor to comply with section 61; and
(ii)the accused to comply with section 62 if ordered to do so under paragraph (a).
The Criminal Procedure Act (s 61) imposes obligations of disclosure on the prosecutor under s 61(5) and (6). Confessional material and evidentiary material are defined by s 42.
In the present case the prosecutor's obligation to disclose has not yet arisen. Section 60 does not apply because the accused has not yet pleaded and therefore s 61(5) does not apply. Any power to order the prosecutor to make disclosure does not come from those sections or indeed any part of div 6.
There is no power under s 60(4) to make a disclosure order. Leaving aside the power to order disclosure by an accused, the only power in the magistrate, which must be exercised, is to adjourn for a reasonable time to allow the prosecutor to comply with the disclosure requirements: s 60(4)(b)(i).
The present case illustrates why the magistrate has no power to make a disclosure order. Some of the material sought by counsel arguably may not be covered by the prosecution's disclosure requirement. A magistrate might consider making an order but would do so only after disclosure had been made and in order to manage a case to trial.
Is there any other source of the power?
The respondents point to s 138 which is entitled 'Disclosure requirements' and s 137 which is entitled 'Case management powers'.
In the course of argument the respondents' counsel resiled somewhat from the written submission that the magistrate had the power to order the applicant to provide disclosure under s 137(3)(a)(iii) by reason of the enabling provisions conferred on the magistrate under s 138. He was right to do so.
Criminal Procedure Act s 138:
Disclosure requirements, orders as to
(1)In this section, unless the contrary intention appears -
disclosure requirement means a requirement under section 35, 42, 61, 62, 95 or 96 to disclose material, other than a requirement under section 62(4)(a) or 96(3)(a).
(2)The powers in this section may be exercised by a court on its own initiative or on an application by a party to a case.
(3)A court may, in respect of a disclosure requirement, make an order -
(a)that dispenses with all or part of the requirement, if it is satisfied -
(i)there is a good reason to do so; and
(ii)no miscarriage of justice will result;
(b)that shortens or extends the time for obeying the requirement;
(c)that amends or cancels an order made previously under this section, whether by the court or some other court; or
(d)as to any other matter that the court considers is just.
(4)An application for an order under this section may be made by a prosecutor without notice to the accused and may be dealt with in the absence of the accused.
(4a)Despite section 171, an application by a prosecutor for an order under this section that is made without notice to the accused must not be dealt with in open court and the only people who may be present when it is dealt with are the applicant and those permitted by the court.
(5)If an order is made under this section in the absence of an accused, the order must not be given or disclosed to the accused without the permission of the court that made it or, if it was made by a court of summary jurisdiction and the accused is committed for trial or sentence to a superior court, of the superior court.
Section 138 has nothing to say about the present issue. It is principally to relieve the prosecution from its statutorily imposed duty of disclosure when the interests of justice require. Section 138 defines disclosure requirement by reference to other sections in the Act. Section 35 deals with initial disclosure by prosecutor; s 42 deals with indictable offences; s 95 deals with disclosure by prosecutors in superior courts and s 96 is also not relevant as it deals with disclosure by accused. I have already explained how s 61 is not relevant and s 62 refers to disclosure by accused.
The respondents' argument centres on s 138(3)(d) which reads:
as to any other matter that the court considers is just.
However, s 138(3)(d) is conditioned. The court's power to make an order that the court considers just may only be exercised 'in respect of a disclosure requirement'. As there is no disclosure requirement s 138 is irrelevant.
The respondents then argues that the magistrate had power under the case management powers. Section 137(3) provides:
Unless this Act or the rules of court or another written law provides otherwise, a court may do any or all of the following for the purposes of controlling and managing cases before it -
(a)order the parties to a case -
(i)to confer on a “without prejudice” basis or to take other measures before trial to try to identify those facts and issues in the case that are agreed between them and those that will be in issue at the trial of the case;
(ii)to attend before the court before trial for the purpose of dealing with case management and pre‑trial issues;
(iii)to do anything that in the court’s opinion will or may facilitate the case being conducted and concluded efficiently, economically and expeditiously;
The respondents concede that s 137(3) is a general provision. So it is. But again s 137(a)(3) is conditioned. The Criminal Procedure Act 'provides otherwise' in respect of disclosure before a plea of not guilty. Keeping in mind the need to balance disclosure requirements and expense, the clear scheme of the Criminal Procedure Act is for no disclosure beyond the minimum necessary: Criminal Procedure Act s 35(6) until there is a plea of not guilty. The Criminal Procedure Act provides specific disclosure requirements and case management orders are not necessary in respect of them. In Anthony Hordern & Sons v The Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 the court held:
When the legislature expressly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed it excludes the operation of general provisions in the same instrument which might otherwise have been relied upon for the same power. (7)
I have reached my conclusion on the construction of the Criminal Procedure Act without reference to extraneous material. However, reference to both the Law Reform Commission Recommendation 287 and reference to the Second Reading Speech confirms that conclusion both as to the disclosure obligation not arising until a plea of not guilty and as to case management powers being exercised to manage cases to trial.
For these reasons I am satisfied that the magistrate had no power to make a disclosure order before there was a plea of not guilty.
The power to make an order under the Magistrates Court Act s 36(4) is discretionary. In Re An Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151 Beech J examined the exercise of discretion and I accept and adopt his analysis.
In the present case I hold that the magistrate acted in excess of jurisdiction in ordering prosecution disclosure. There is no factor which in discretion would deny the applicant the relief she seeks. I make a review order setting aside the magistrate's order for prosecution disclosure in each case.
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