Ian Cornwell v Mark Curran

[2006] ACTSC 119

IAN CORNWELL v MARK CURRAN [2006] ACTSC 119 (14 December 2006)

PRACTICE AND PROCEDURE – informations alleging breaches of Occupational Health and Safety Act 1989 (ACT) – failure to specify elements of offence – whether such elements pleaded by implication – whether informations invalid.

Occupational Health and Safety Act 1989 (ACT), ss 29, 79
Magistrates Court Act 1930 (ACT), s 28
Legislation Act 2001 (ACT), s 192
Archbold; Criminal Pleading, Evidence and Practice 44^th ed, vol 1 at 75

Walsh v Tattersall (1996) 188 CLR 77
R v Holloway Prison [1916] LJ KB 689
Lillyman v Pinkerton (1982) 45 ALR 543
Davies v Ryan (1933) 50 CLR 379
Cooks Hotel Pty Ltd v Pope (1983) 34 SASR 240
John L Pty Ltd v The Attorney-General for the State of NSW (1987) 163 CLR 508

No. SCA 16 of 2006

Judge:             Crispin J
Supreme Court of the ACT

Date:              14 December 2006

IN THE SUPREME COURT OF THE       )
  )          No. SCA 16 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

BETWEEN:IAN CORNWELL

Plaintiff

AND:MARK CURRAN

Defendant

ORDER

Judge:  Crispin J
Date:  14 December 2006
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The informations be quashed.

1. The convictions and orders set aside.

1. This is an appeal against the appellant’s conviction on two charges of contravening provisions of the Occupational Health and Safety Act 1989 (ACT) (“the Act”).

1. As the learned magistrate observed in her reasons for judgment, the matter had had a protracted history, with many days of hearing spread over a number of months.  Her Honour explained that this had been attributable to a number of factors.  The evidence of prosecution witnesses had sometimes been adduced in a confusing manner and the appellant, who had been unrepresented at the hearing, had not only cross-examined in a laborious and repetitive manner but had also attempted to make lengthy statements from the bar table.  Even after the hearing had been completed the respondent withdrew two of the six charges initially laid and sought leave to amend two others.  The appellant’s wife, Ms Davidson, who is a legal practitioner, subsequently filed written submissions on his behalf and there was some initial confusion as to whether she was on the record as acting for him and hence as to whether they could be received.  Ms Davidson subsequently explained that she had previously appeared for the appellant and had continued to advise him throughout the hearing.  She had not appeared as his advocate only because she had anticipated that she might be called as a witness and been advised that she should not be in court to hear his evidence and that of other witnesses.  Whilst that issue was being resolved the respondent, filed additional submissions and she had to be given further time to respond to them.

1. Two of the remaining four charges were ultimately dismissed and Ms Davidson, who appeared for the appellant on the appeal, challenged the convictions on the remaining two charges on a range of grounds, some of which I have found unnecessary to address because of the view I have formed as to the form of the charges.

1. Charge 51320 of 2004 (“the first charge”) alleged that between 30 October 2003 and 22 December 2003 at 5 Flockton Place, Chisolm in the ACT the appellant contravened s 29 of the Act “in that he failed to take all reasonably practicable steps to ensure that the workplace was safe and without risk to health, in that he placed persons at risk of injury from working at height without fall protection and by supplying non-compliant scaffold, and by not ensuring the site was free from debris”.

1. It is apparent from the reasons for judgment that the appellant had contended that this charge was void for duplicity.  As Dawson and Toohey JJ said in Walsh v Tattersall (1996) 188 CLR 77 at 84, the rule against duplicity, as stated in Archbold; Criminal Pleading, Evidence and Practice 44^th ed, vol 1 at 75, is that the “indictment must not be double; that is to say no one count of the indictment should charge the defendant with having committed two or more separate offences”.  Duplicity is a matter of form not evidence (ibid).

1. Her Honour rejected the contention that the charge was void on this ground, observing that the information disclosed a single offence of failing to ensure that the workplace was safe and without risk to health and indicating that the ensuing words should be regarded as particulars of the state of the site rather than as allegations of discrete offences.

1. It is not difficult to understand why the appellant might have questioned whether the charge was duplicitous. The first two of the clauses that followed the primary allegation were not framed in adjectival terms but in a manner that suggested the commission of further offences relating to an unsafe system of work and/or a failure to comply with regulations or standards concerning the provision of scaffolding and other equipment. Whilst her Honour charitably limited her criticism of the charge to an observation that it had been inelegantly expressed, the language employed in these clauses was really quite inapposite for their apparent purpose as particulars of an unsafe workplace. Nonetheless, I agree with her Honour’s conclusion that the charge was not duplicitous. Properly construed, it alleged a single offence of contravening s 29 of the Act and provided particulars of that offence, albeit in a manner that gave rise to some potential for confusion.

1. During the hearing of the appeal, however, Ms Davidson mounted a more fundamental challenge, submitting that the charge had not disclosed an offence known to law. She argued that it had omitted any reference to control of the workplace and that this had been an essential ingredient of any offence under s 29 of the Act.

1. The relevant portion of s 29 of the Act was then in the following terms:

(1)      A person who has, to any extent, control of –

(a)      a workplace; or

---

shall take all reasonably practicable steps to ensure that it is safe and without risk to health.

1. As Ms Davidson pointed out, it is clear from the words of this section that it was an essential ingredient of the offence that the person charged had had control of the workplace, at least to some extent, at the relevant time.  The statutory duty is clearly imposed only upon persons with some such control.  Indeed, an allegation that a person has failed to take “reasonably practicable” steps to ensure workplace safety may have to be considered by reference to the extent to which the person had control of the workplace and hence had the capacity to take steps of the kind suggested.

1. Mr Clynes, who appeared for the respondent, conceded that some control of the workplace was an essential ingredient of the offence but argued that it had been pleaded by implication.

1. Mr Clynes sought to support his contention that it was sufficient for an ingredient to be implicit in an information by reference to the early case of R v Holloway Prison [1916] LJ KB 689 in which Lord Reading CJ, with whom Sankey and Low JJ agreed, upheld the validity of a charge alleging that the applicant had been drunk and incapable of taking care of herself at a certain time and place, notwithstanding a failure to expressly mention an ingredient of the offence charged, namely that she had been “found” in that condition.  His Lordship accepted that this ingredient had been necessarily implied in the charge.  His Lordship did not explain the basis for this implication but it was presumably based upon the obvious fact that no one would have known that she had been in the proscribed condition at the time and place specified had she not been so found.  In the present case there is no similar basis for any conclusion that the relevant ingredient was necessarily implicit in the first charge.

1. I might also mention that his Lordship concluded his judgment by observing that it would be better that there should be more exactness is dealing with these matters and that it would save both time and trouble if more care were taken to comply with the forms and provisions of statutes.  Whilst this observation was made ninety years ago, it is obviously still relevant.

1. Mr Clynes also relied upon the decision of the Full Court of the Federal Court of Australia in Lillyman v Pinkerton (1982) 45 ALR 543 in which Woodward and Keely JJ, contra Gallop J, managed to uphold the validity of an information despite observing that it would have been difficult to conceive of one which gave less notice to the defendant of the case he had to meet. It should be noted, however, that even the majority acknowledged the distinction drawn in Davies v Ryan (1933) 50 CLR 379 between the statement of the offence, which is crucial to the validity of the information, and the supply of particulars necessary for a fair trial. Whilst finding that it had been sufficient for the offence to be described in the words of the section, even if the absence of adequate particulars left the precise nature of the allegations unclear, their Honours did not suggest that an essential ingredient of the relevant offence could be omitted.

1. In Supreme Court of South Australia in Cooks Hotel Pty Ltd v Pope (1983) 34 SASR 240 Wells J said, at 308, that a complaint will not defective merely because the reader must carefully read its text in conjunction with the enactment on which it is founded. The case did not address the issue of whether an unspecified ingredient of an offence could be implied in this manner and neither Zelling nor Bollen JJ, who agreed as to the result in that case, expressed agreement with this statement. In any event, I do not take his Honour to have intended to suggest that an information would be valid notwithstanding a failure to specify one or more of the essential ingredients of the offence intended to be charged, so long as a defendant who approached its construction with due intellectual rigour could ultimately deduce the nature of the offence from the clues contained in the text and relevant statutory provisions. If that was intended, then I would, with due respect, disagree. A defendant is entitled to a clear statement of the offence with which he or she is charged.

1. These cases were all decided before the High Court’s decision in John L Pty Ltd v The Attorney-General for the State of NSW (1987) 163 CLR 508. In that case the majority, consisting of Mason CJ, Deane and Dawson JJ, affirmed at 520 the common law requirement that a valid information “must at least condescend to identifying the essential factual ingredients of the actual offence”. Their Honours added that, since the proceedings with which they were concerned had not been commenced by a valid information within the twelve month period required, they had been incompetent and the judge who had heard the initial appeal had been right to quash the orders appealed from. I am, of course, bound to follow this decision.

1. The first charge did not condescend to identify one of the essential factual ingredients of the offence, namely that the appellant had, to any extent, control of the workplace.  Hence, in my opinion, the information was invalid.

1. I should mention that Ms Davidson submitted that the charge was also defective because it did not specifically aver that the premises at 5 Flockton Place, Chisolm constituted a workplace but I am satisfied that this ingredient was implicit in the reference to the workplace in the particulars.

1. The validity of charge 51325 of 2004 (“the second charge”) was also challenged on the ground that it did not disclose an offence known to law.

1. This charge alleged that between 30 October 2003 and 22 December 2003 at 5 Flockton Place, Chisolm in the ACT the appellant contravened s 79 of the Act “in that he failed to ensure Improvement Notice 007173 was complied with, being a person who has, to any extent, control of the workplace”.

1. Whilst it did allege that the appellant had had “to any extent” control of the workplace, Ms Davidson pointed out that it did not refer to other essential ingredients of an offence under s 79 of the Act.

1. That section then provided as follows:

A person to whom –

(a)      an improvement notice; or

…

has been given shall, to the extent that the notice … relates to a matter over which the person has control, ensure that the notice … is complied with.

1. It may be noted that the charge did not describe the appellant as a person to whom the relevant improvement notice had been given and did not allege that the failure that was said to have constituted the offence had related to a matter over which he had had control.  Both of these matters were essential ingredients and in my opinion the failure to plead them again invalidated the information.

2. Both informations could have been amended pursuant to s 28 of the Magistrates Court Act 1930 (ACT) but no application was apparently made to her Honour for such amendment. It may have been open to the respondent to make a similar application on appeal but, having regard to the nature of the charges, the manner in which the proceedings were conducted in the Magistrates Court and the time and expense already consumed by them, I would not have acceded to such an application even if it had been made.

3. Since the institution of fresh proceedings would now be barred by s 192 of the Legislation Act 2001 (ACT), it would seem pointless to address the issues raised by other grounds of appeal.

4. The appeal must be allowed, the informations quashed and the convictions and penalties set aside.

5. I will hear counsel as to costs.

   I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

   Associate:
   Date:    14 December 2006

Counsel for the appellant:  Ms C Davidson
Solicitor for the appellant:  Daryl Perkins Solicitors

Counsel for the respondent:  Ms M Hunter with Mr R Clynes
Solicitor for the respondent:  ACT Director of Public Prosecutions

Date of hearing:  18 August 2006
Date submissions received:  1 December 2006

Date of judgment:  14 December 2006