JMAL v Director of Public Prosecutions (Ruling No 2)

[2019] VCC 433

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised Not Restricted

Suitable for Publication

Case No. CR-17-01447

Indictment No: C1711353.2

The JMAL Group Pty Ltd (ACN 165 661 414)  Applicant v

The Director of Public Prosecutions  Respondent

---

JUDGE:	HIS HONOUR JUDGE TRAPNELL
WHERE HELD:	Melbourne
DATEOF HEARING:	26, 28 March, 3 April 2019
DATEOF RULING:	5 April 2019
CASE MAY BE CITEDAS:	JMAL v DPP (Ruling No 2)
MEDIUMNEUTRAL CITATION:	[2019] VCC 433 (1st Revision)

RULING No 2

---

Subject:  CRIMINAL LAW

Catchwords:               CRIMINAL LAW – Occupational Health and Safety Act prosecution – Prosecution of employer under s 23(1) – Application by accused

company for permanent stay of proceeding – Whether charge fails to

allege an essential element of the charge Legislation Cited: Occupational Health and Safety Act 2004 s 23

Cases Cited:              DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 – Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204 – DPP v Kypri (2011) 33 VR 157 –

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Ruling:  Application granted in part

---

APPEARANCES:Counsel  Solicitors

For the Applicant  Dr D Neal S.C. with Mr S T Russell

Sparke Helmore Lawyers

For theRespondent  Mr P J Hannebery S.C. with Ms S J Keating

Mr J Cain, Solicitor for Public Prosecutions

HIS HONOUR

1This is an application by The JMAL Group Pty Ltd (‘JMAL’) for a permanent stay of this proceeding on the ground that charge 1 on Indictment No C1711353.2 fails to allege an essential element of the charge.

2Charge 1 alleges an offence against s 23(1) of the Occupational Health and Safety Act 2004 (‘the Act’). That sub-section provides:

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.

3Charge 1 is in the following terms:

CHARGE 1 The Director  of Public Prosecutions charges that THE JMAL GROUP PTY LTD (ACN 165 661 414) at Dandenong, Pakenham and divers other places in the State of Victoria on or about the 29th day of June 2015 being an employer failed, so far as was reasonably practicable, to ensure that persons other than its employees were not exposed to risks to their health and safety arising from the conduct of its undertaking in that it:

Particulars:

a)  The JMAL GROUP PTY LTD ACN 165 661 414 (‘JMAL’) is and was at all material times a body corporate.

b) JMAL was an employer for the purposes of the Act as defined in section 5.

c)  JMAL is a towing company specialising in the transport of mobile plant.

d)  JMAL conducted an undertaking on 29 June 2015 in both Dandenong and Pakenham, namely the loading, transporting and unloading of powder coating cabinets (‘the plant’).

e)  The persons other than employees exposed to risks to their health and safety from the undertaking of JMAL included Leon Unmack.

f)    The health and safety risks to which those persons were exposed were serious injury or death as a result of the load falling from the float trailer during the task of unloading the plant.

g)  JMAL had a system of work in relation to the unloading task contained in 'Odrocs safe work method statement - Loading / Unloading material on float truck' dated 6 August 2014, ('the SWMS') in respect of which employees were required to be instructed.

h)  JMAL failed to maintain its system of work when on 29 June 2015, Leon Unmack, who was not employed by JMAL and not inducted and/or instructed in relation to that SWMS, performed the unloading task.

i)    It was reasonably practicable for JMAL to have reduced the risk by ensuring that the only persons who performed the unloading task were those who had been inducted and trained in respect of the unloading procedure contained in the SWMS.

4The circumstances giving rise to this charge are set out in the Summary of Prosecution Opening, filed 25 March 2019 pursuant to section 182 of the Criminal Procedure Act 2009 and do not need repeating here.

5The applicant submits that the charge is defective in that it fails to state the measures that JMAL was required to take to ensure, so far as reasonably practicable, that persons other than employees of the employer were not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.

6The respondent submits that the measure the applicant is alleged to have failed to take is sufficiently set out in particular i) of the charge and there is accordingly no basis to stay the trial. The respondent submits that particular ‘sets out with sufficient specificity the manner in which the system was not maintained’.1 The respondent relies on a passage from the judgment of the Victorian Court of Appeal judgment in DPP v Vibro-Pile (Aust) Pty Ltd2 (‘Vibro-Pile’), which applied a passage from that Court’s judgment in Baiada Poultry Pty Ltd v Glenister (‘Baiada Poultry’).3

7It is common ground that a trial for a charge under the Act should not proceed unless ‘full and proper particulars’ have been provided.4 It is, I think, also common ground that ‘a charge which lacks an essential element of the alleged offence is defective and, at common law, may be described as a nullity’.5 Subject to any power of amendment, a trial on such a charge cannot proceed and should be stayed.

8The applicant relied on the decision of the High Court of Australia in Kirk v Industrial Court (NSW).6 In that case the plurality said:

A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many

1. Outline of Argument dated 29 March 2019 (Exhibit P1) (‘Outline’) [10].

2. (2016) 49 VR 676, 708–9 [132]–134] (Maxwell P, Redlich and Whelan JJA).

3. (2015) 257 IR 204 [48]–[49].

4. Outline [8].

5. DPP v Kypri (2011) 33 VR 157, 165 [24] (Nettle JA, Tate JA substantially agreeing).

6. (2010) 239 CLR 531 (‘Kirk’).

instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer’s obligations. … But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.7

9Later their Honour’s said:

Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply “with the provision of this Act”. It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer.8

…

The measures which must be taken are those which are reasonably practicable.9

…

What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risks and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable for the employer to have undertaken, is directed to the measures so alleged. It is the employer’s act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16.10

10Still later their Honours said:

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 [reasonable practicability]. …

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

1. Kirk 553 [14] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

2. Kirk 554 [17] (emphasis added).

3. Kirk 555 [18].

4. Kirk 555 [19] (emphasis added).

appellants could not have known what measures they were required to prove were not reasonably practicable.11

11Turning to the present charge, in my opinion it suffers from the same vice as did the charges in Kirk, albeit the New South Wales legislation differs from our legislation in significant ways. While the present charge identifies the risk to health and safety to which persons other than employees were exposed in particular f), and identifies the cause of that risk coming to fruition in the relevant incident in particular h), the charge fails to identify what JMAL should have done, and failed to do, to avoid exposing persons other than employees to a risk to their health and safety from the task of unloading the plant.

12While particular i) asserts that it was reasonably practicable for JMAL to have reduced the risk by ensuring the only persons who performed the unloading task were those who had been inducted and trained in respect of the unloading procedure contained in the SWMS, the charge fails to identify what measures the company should have taken to ensure this occurred. In the words of the Court of Appeal in Baiada Poultry as applied in Vibro-Pile, the charge fails to specify ‘the act or omission of the applicant that constituted the contravention specified’.12 In other words, the charge fails to ‘specif[y] with sufficient precision what [the applicant] ought to have done’.13 As Dr Neal put it, some link needs to be made in the charge between the act of the non-employee which caused the risk to eventuate and the measure the applicant should have taken to have avoided or minimised the risk to health and safety. To my mind, the applicant is not seeking particulars of ‘the detailed actions which it was reasonably practicable’ for JMAL to take.14

13Accordingly, I find the present charge is defective for failing to allege an essential element of the offence under s 23(1) of the Act.

1. Kirk 558 [27]–[28] (emphasis added).

2. Baiada Poultry [49].

3. Vibro-Pile 709 [134].