John Holland Pty Ltd v Hanel
[2016] SASC 192
•15 December 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
JOHN HOLLAND PTY LTD v HANEL
[2016] SASC 192
Judgment of The Honourable Justice Peek
15 December 2016
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - INITIATING PROCESS: INFORMATION, COMPLAINT, NOTICE OR CHARGE
MAGISTRATES - COMMENCEMENT OF PROCEEDINGS - PARTICULARS AND CONTENT OF INITIATING PROCESS
Permission to appeal against interlocutory decision.
The defendant is charged with three counts of failing to comply with a health and safety duty contrary to s 32 of the Work Health and Safety Act 2011 (Cth). The defendant filed an application in the Magistrates Court for each of the charges to be struck out on the basis that they do not properly state a case against them in the manner required by law, and that they do not provide sufficient particulars as to the alleged breach.
This application was dismissed and permission to appeal was refused by the Magistrate.
The defendant filed a notice of appeal and sought permission to appeal from the Supreme Court pursuant to s 41(1a)(c) of the Magistrates Court Act 1991.
Discussion regarding the power of a trial Court to require the prosecution to furnish additional particulars.
Held (refusing permission to appeal):
1. The proposed arguments that one or more of the counts charges an offence not known to the law or does not comply with the requirements of s 22A of the Summary Procedure Act 1921 have a very low prospect of success.
2. In all of the circumstances, including the presumption against fragmentation of criminal litigation, permission to appeal is refused.
Work Health and Safety Act 2011 (Cth) ss 19, 32; Magistrates Court Act 1991 s 42; Summary Procedure Act 1921 (SA) ss 22A, 181, referred to.
Murphy v Police [2011] SASC 138; Kirk v Industrial Court (2010) 239 CLR 531; Dietman v Feast [2015] SASC 148; Reedy v O'Sullivan [1953] SASC 114; Baiada Poultry Pty Ltd v VWA [2015] VSCA 344; Obeid v The Queen [2016] HCA 9; DPP v Vibro-Pile (Australia) Pty Ltd [2016] VSCA 55, discussed.
Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418; Tregilgas v Howie [1926] SASR 122; Schultz v Pettit (1980) 25 SASR 427; Weldon v Neal (1887) 19 QBD 394; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 467; Johnson v Miller (1937) 59 CLR 467; DPP Reference No 2 of 2001 [2001] VSCA 114; Contract Control Services Pty Ltd v Brown [2012] VSC 369; John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338; Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204; O'Sullivan v Reedy (1953) 27 ALJ 290; Lafitte v Samuels (1972) 3 SASR 1; Giles v Samuels (1972) 3 SASR 307; Dalton v Bartlett (1972) 3 SASR 549; Prowse v Bartlett (1972) 3 SASR 472; Hayes v Quinn (1992) 57 SASR 6; Police v McLeod [2011] SASC 160, considered.
JOHN HOLLAND PTY LTD v HANEL
[2016] SASC 192Magistrates Appeal
PEEK J
Introduction
As part of a national framework, the Work Health and Safety Act 2011 (Cth) (‘the Act’) creates duties and obligations requiring a person, business or body corporate to take ‘reasonably practicable’ measures to ensure the health and safety of workers and the workplace. Section 19 creates the primary duties of care.
Section 32 creates a category 2 offence (applicable to individuals, businesses and bodies corporate) which penalises a failure to comply with a ‘health and safety duty’ that exposes an individual to a risk of death, serious injury or illness. It relevantly states:
32 Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if:
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c)the failure exposes an individual to a risk of death or serious injury or illness.
The proceedings in the Magistrates Court
On 23 July 2015, John Holland Pty Ltd (to whom I will continue to refer as ‘the defendant’) was charged on complaint with the following offences:
Count 1
Between 9 July 2012 and 27 July 2013, at Angle Park in the State of South Australia, the Defendant failed to comply with a health and safety duty to ensure, so far as is reasonably practicable, that the health and safety of workers was not put at risk from work carried out as part of the conduct of the business or undertaking and exposed Brett Ogden to a risk of death or serious injury or illness, contrary to section 32 of the Work Health and Safety Act 2011 (Cth).
Particulars
The Defendant being a person conducting a business or undertaking, and having a health and safety duty, failed to ensure the provision and maintenance of safe systems of work in that it did fail to implement and maintain effective communication measures to minimise risk to health and safety associated with plant colliding with plant in the workplace, in particular a portal crane and an elevated work platform. The communication measures included the use of two-way radios and/or procedures and processes for effective communication practices.
Count 2
Between 1 January 2012 and 27 July 2013, at Angle Park in the said State, the Defendant failed to comply with a health and safety duty to ensure, so far as is reasonably practicable, that the health and safety of workers was not put at risk from work carried out as part of the conduct of the business or undertaking and exposed Brett Ogden to a risk of death or serious injury or illness, contrary to section 32 of the Work Health and Safety Act 2011 (Cth).
Particulars
The Defendant being a person conducting a business or undertaking, and having a health and safety duty, failed to ensure the safe use and handling of plant in that it did fail to implement and maintain effective isolation measure to minimise risks to health and safety associated with plant colliding with plant in the workplace, in particular a portal crane and an elevated work platform. These isolation measures included the implementation of an exclusion zone when moving and operating a mobile plant.
Count 3
Between 1 January 2012 and 27 July 2013, at Angle Park in the said State, the Defendant failed to comply with a health and safety duty to ensure, so far as is reasonably practicable, that the health and safety of workers was not put at risk from work carried out as part of the conduct of the business or undertaking and exposed Brett Ogden to a risk of death or serious injury or illness, contrary to section 32 of the Work Health and Safety Act 2011 (Cth).
Particulars
The Defendant being a person conducting a business or undertaking, and having a health and safety duty, did fail to provide workers with suitable and adequate information, training, instruction and supervision on the use of communication measures in the activity of segment storage. The communication measures included the use of two-way radios and/or procedures and processes for effective communication practises.
On 8 March 2016, the defendant filed an application that ‘each of the three charges be struck out and the proceeding be quashed’ with the grounds of application being stated as follows:
The basis of the application is that all three of the Charges contained in the Complaint and Summons dated 23 July 2015 do not properly state a case against the Defendant in the manner required by law. We refer to the High Court’s decisions in Kirk v Industrial Relations Commission of NSW (2010) 239 CLR 531 and Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92 in this regard.
In support, the defendant supplied written submissions dated 29 March 2016 and a list of authorities. The Commonwealth Director of Public Prosecutions (‘the CDPP’), appearing on behalf of the complainant, opposed the application and supplied written submissions dated 6 April 2016 and a list of authorities.
On 4 July 2016, the application was heard by Magistrate Bennett. Essentially, the issues raised were first, whether the offences were validly stated; second, whether the particulars are sufficient; third, whether the charges or particulars require amendment; and fourth, whether the charges or particulars can be lawfully amended. His Honour stated:
Defence argued the particulars in relation to the three charges on complaint are so deficient in the essential legal and factual elements of each offence, that none of the three charges constitute an offence known at law. As a result, the complaint is ‘incurably bad’ and cannot be amended, as to do so, would be to create (in effect) new and different offences. Consequently, it was argued, the only remedy available is to dismiss the complaint.
Defence made a number of criticisms of the three charges; some of a general nature, others specific to each charge.
First, it was argued, whilst the general principles in Johnson v Miller apply, that occupational health and safety offences are unusual in that they, generally, rely on acts of omission, rather than acts of commission, as do most criminal offences. Consequently, it was submitted where an offence (such as these offences) relies upon an act of omission, prosecution must identify unambiguously three elements. First, the acts of omission that are alleged to constitute the offence. Secondly, the particulars must include the remedial measures the defendant ought to have taken to comply with their health and safety duty. Finally, the particulars must state, as a legal requirement, those remedial measures that are ‘reasonably practicable’. In support of these submissions, a number of ‘charge sheet(s) and summonses’ laid in Victoria in relation to similar types of charges were tendered as an example of the degree of particularisation required for ‘health and safety’ charges (based on acts of omission) to be valid at law.
It was submitted that the particulars in the three charges were wholly inadequate to inform the Defendant (and the court) as to what measures should have been taken and the reasonable practicability of such measures. On the latter point, it was argued the failure to mention or identify the requirement of ‘reasonable practicability’ was a fatal omission from the particulars of the three charges. These deficiencies meant no valid offences are made out on the complaint.
In support of these submissions, the Defendant referred to a number of authorities (see the Defendant’s written submissions and list of authorities). It was argued Baiada Poultry v VWA (2015) VSCA 344 (‘Baiada (2015)’), stated any remedial measures which were reasonably practicable for a defendant to adopt to ensure the health and safety of workers (or a workplace) should be particularised ‘unambiguously’ – [171-73]. Unless the remedial measures are particularised to this extent, the charge(s) ‘lacks an essential element and will be invalid’ – [173]. If so, an order for further and better particulars cannot remedy this deficiency – [172-173].
A number of specific criticisms were made of the charges. As to count 1, first, it was submitted the date of the offence was cast in unnecessarily imprecise terms (‘between 9 July 2012 and 27 July 2013’), since the incident occurred on 26 July 2013. Secondly, if count 1 was intended to allege a breach of the Defendant’s duty of care under section 19(3)(c) to provide and maintain ‘safe systems of work’, it was submitted the legal and factual basis of the alleged breach should have been stated explicitly in the particulars.
The latter criticism was also made of count 2, as the particulars suggest a breach of the Defendant’s duty of care to ensure ‘the safe use, handling and storage of plant, structures and substances’ (under section 19(3)(d)). Secondly, the mention of ‘isolation measures includ(ing) the implementation of an exclusion zone when moving and operating mobile plant’ was criticised as too vague and ambiguous. The term ‘exclusion zone’, it was argued, has various meanings which differ, in an occupational health and safety context, according to the type of worksite. For instance, an exclusion zone will (in practical terms) have different applications on a building site, compared to other worksites (such as a traffic management zone).
A number of criticisms were made of count 3. First, on the facts alleged by prosecution, it was unclear why the period ‘between 1 January 2012 and 27 July 2013’ was used. Secondly, the use of the words ‘suitable and adequate’ qualifying the duty of care to provide, if reasonably practicable, ‘information, training, instruction and supervision’ to ensure workers’ health and safety (under section 19(3)(f)) was criticised as vague and not establishing any objective standard. Terms such as ‘suitable’ or ‘adequate’, it was argued, may be properly used if the act or omission is sufficiently particularised; but if not, these terms qualifying the remedial measures ‘will add nothing’ – Baiada (2015) at [50].
Defence conceded the criticisms of the ‘between’ dates in counts 1 and 2 are not material particulars and do not, alone, render the charges invalid – R v Jiri Fiala Ex Parte G J Coles Co Ltd (1986) 46 SASR 47, 63. However, it was argued the uncertainty of the dates in counts 1 and 3 were relevant to the application of the ‘reasonably practicable’ test.
The Magistrate reserved judgment. On 19 September 2016, his Honour dismissed the application and delivered extensive reasons (‘the Magistrate’s decision’).
On 6 October 2016 the defendant sought permission to appeal from the Magistrate’s decision pursuant to s 42(1a)(c) Magistrates Court Act 1991. Section 42 provides as follows:
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a) An appeal does not, however, lie against an interlocutory judgment unless—
(a) the judgment stays the proceedings; or
(b)the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
On 7 October 2016, the defendant was informed that the Magistrate declined to grant permission to appeal from his decision.
The proceedings in the Supreme Court
On 11 October 2016, the defendant filed a notice of appeal to the Supreme Court and sought from the Court permission to appeal. The orders sought are as follows:
1. The order made by Magistrate Bennett on 19 September 2016 be set aside.
2. The three charges issued to the Appellant under the Work Health and Safety Act 2011 (Cth) be struck out.
3. The proceedings in Phillip Hanel (Comcare) v John Holland Pty Ltd (AMC-15-8243) be quashed.
4. Any other order(s) the Court deems appropriate.
The proposed grounds of appeal are as follows:
1. The Charges contained in the Complaint and Summons dated 23 July 2015 do not properly state a case against the Appellant in the manner required by law and are liable to being struck out.
2. Magistrate Bennett erred in rejecting the Appellant’s application made on 8 March 2016 seeking that the three charges be struck out and the proceedings be quashed.
3. Magistrate Bennett should have found that the Complaint and Summons dated 23 July 2015 was invalid, as it does not comply with section 22A of the Summary Procedure Act 1921 (SA) on the grounds that each statement of offence charged contained in the complaint fails to provide reasonable information as to the nature of the charge by failing to allege the essential legal and factual elements of the alleged offences.
It was submitted that permission to appeal should be granted because:
1. A decision in favour of the Appellant on this appeal negates the need for a hearing regarding the three charges in the Magistrates’ Court of South Australia, thus saving the Court’s time and resources, and importantly, results in witnesses not being required to attend court to give evidence.
2. See further the Affidavit of Luke Dominic Paul Holland sworn 11 October 2016 filed with this Notice of Appeal.
At the hearing on 12 December 2016, this Court heard the application for permission to appeal concurrently with the submissions from both parties that were wished to be made should permission be granted. Judgment was reserved as to all matters.
Consideration of proposed ground 1 of appeal
1. The Charges contained in the Complaint and Summons dated 23 July 2015 do not properly state a case against the Appellant in the manner required by law and are liable to being struck out.
Latent in this proposed ground is a danger that conflation of different concepts may occur; this danger subsequently became patent. Thus the defendant’s outline of argument asserted:
His Honour Magistrate Bennett erred in law when he concluded that the information in the particulars of the complaint describe the essential legal and factual elements of the offences and is therefore sufficient to render the three charges valid under section 22A of the Summary Procedure Act.
The complaint and charges are ineffective, invalid and a nullity, because they do not allege the essential elements of a crime known to law and are therefore invalid under section 22A of the Summary Procedure Act. Further, they do not comply with the requirements of a valid charge as explained by the High Court in Kirk,[1] in that they do not specify the reasonably practicable measure(s) that it is alleged the accused should have but did not implement, the reasonably practicable measure being an essential factual element of the charges (among other essential elements not specified).
[1] Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531. See also Dietmen v Feast [2015] SASC 148, [111]-[117].
A submission that a charge is bad for not stating an offence known to the law
It is necessary to note that a submission that a charge is bad for failing to state an offence known to the law raises the question of whether each of the essential elements of the charge has been sufficiently averred as distinct from whether sufficient particulars of the alleged breach of the law have been supplied.
A relatively recent discussion of this matter appears in Murphy v Police.[2] In Murphy, it was held that the sole count in the complaint was incurably defective because it entirely failed to aver a critical element of an offence.[3] The statutory time limit had elapsed. I there stated:[4]
[2] [2011] SASC 138.
[3] There were different possibilities under s 47E(1)(c) of the Road Traffic Act 1961 regarding what test it was to which the appellant was required to submit corresponding to different charges that might be laid, namely an alcotest, or a breath analysis, or both.
[4] [2011] SASC 138.
In my view, the authorities establish that a complaint which fails to aver an ingredient of this importance in fact charges no offence known to the law and, accordingly, a conviction which purports to be founded on such a complaint is bad.[5] The features of the present case that lead me to this conclusion are that: a critical averment of the charge itself is missing; there was no application for an amendment made by the prosecution at any time; and the complaint may not now be amended since the limitation period has expired thus invoking the principle in Weldon v Neal.[6] As Gray J observed in Australasian Meat Industry Employees Union v Sunland Enterprises Pty Ltd[7] in the context of a problem with a complaint very similar to the present situation:
[5] The position in relation to an Information subject to a different statutory regime and not subject to a statutory time limit may be different but it is unnecessary to consider that matter.
[6] (1887) 19 QBD 394.
[7] (1987) 36 A Crim R 418, 421-422.
It is a fundamental principle of law that a court will not permit amendment of a proceeding where to do so will remove an immunity given to another party by a statutory period of limitation. In civil cases, this principle is known as the rule in Weldon v Neal (1887) 19 QBD 394, that no amendment will be permitted which will add a new cause of action which is statute-barred at the time when the amendment is sought. This principle also applies in the criminal law. As Fitzgerald J said in Linehan v Australian Public Service Association (1982) 66 FLR 90 at 112 “ ... it is readily comprehensible that, in the context of ss 21 and 21A of the Crimes Act, it should be seen as impermissible for the prosecutor to add essential allegations for the first time after the time for a prosecution has expired”.
In such circumstances, the purported conviction must be set aside. The authorities are many. For example, in the central decision of Tregilgas v Howie,[8] Murray CJ stated:[9]
[8] [1926] SASR 122.
[9] Ibid 126.
… [I]f the complaint (I will use that term only for the sake of brevity) discloses no offence, it must be dismissed, unless the justices are of opinion that it ought to be amended. It is also clear, in my judgment, that if no offence is disclosed in the complaint until it is amended, the time from which it becomes a good complaint is the time of the making of the amendment. There might have been some such provision in the Act as that the amendment should be retro-active, or that, after amendment, the complaint should be deemed to have been a good complaint from the time when it was first laid, or there might have been some words used that would carry an implication to that or the like effect. But the Act is silent upon the matter. All that there is to go by is the actual fact that the complaint is not a good complaint until it is amended, and that necessarily involves the consequence that its validity as a complaint dates from the amendment.
The question is probably only of importance in relation to the time-limit which is prescribed for laying informations or complaints. … These provisions are as much a part of the Licensing Act and the Justices Act as the sections giving power of amendment, and cannot be disregarded when a question of amendment is being considered. And it is obvious that if the effect of an amendment would be to create a valid information or complaint for the first time after the statutory period for taking proceedings has expired, the amendment cannot be made.
Similarly, Cox J stated in Schultz v Pettit:[10]
A complaint may not be amended, under s 183 or any other power, if the result would be to convert a bad complaint into a good one, or to charge the defendant with a different offence. … Certainly, if the effect of an amendment or a variance would be to take the offence outside the relevant limitation period, that would provide a compelling reason why an amendment to the complaint should not be made or a variance disregarded.
South Australian decisions include (chronologically): Tregilgas v Howie,[11] Arnold v Hughes,[12] Reedy v O’Sullivan,[13] Jurekic v Menz,[14] Fred Wakefield Pty Ltd v Dowd,[15] Schultz v Pettitt,[16] Davidson v Kennelly,[17] Tiver v Brewster[18] and Surman v Police.[19] See also decisions such as Traveland Pty Ltd v Doherty,[20] Gilmour v Bannister Nominees Pty Ltd,[21] John L Pty Ltd v Attorney-General (NSW)[22] and Kirk v Industrial Relations Commission of New South Wales.[23]
This matter constitutes a second independent reason why the conviction in the present case must be set aside and the “complaint” dismissed. (Emphasis added)
[10] (1980) 25 SASR 427, 433.
[11] [1926] SASR 122.
[12] [1926] SASR 360.
[13] [1953] SASR 114.
[14] [1961] SASR 322.
[15] (1979) 20 SASR 328.
[16] (1980) 25 SASR 427, 433.
[17] (1982) 103 LSJS 281.
[18] (Unreported) Supreme Court of South Australia, Bollen J, 27 July 1988, Judgment No 924.
[19] (1996) 65 SASR 421, 424.
[20] (1982) 63 FLR 41, 49-51.
[21] (1982) 60 FLR 308, 311-313.
[22] (1987) 163 CLR 508, 519-521; 525-529.
[23] (2010) 239 CLR 531, 557-558 [26].
Decisions that a count is incurably defective for failure to state a charge known to the law of the jurisdiction are almost always found in the context of a statutory time limit for the laying of a complaint having expired. Putting the matter perhaps a little simplistically, that is because a fresh complaint with correct averments can be laid if the time limit is still running at the time of a dismissal on the basis of “no offence known to the law”.[24] As a practical matter, this has led to the courts being willing to amend a charge which does not validly charge an offence known to the law where the time limit has not expired and to refuse to amend such a charge where the time limit has expired (since to amend in the latter circumstances offends the rule in Weldon v Neal).[25]
[24] An autrefois plea will not be upheld if the first complaint was incurably bad since the defendant was never in lawful jeopardy of a valid conviction.
[25] It may be noted that there is no South Australian provision corresponding to s 8(4) of the Criminal Procedure Act 2009 (Vic).
In the present case, the statutory time limit has indeed expired, but I consider that it is clear that the three counts did each charge an offence known to the law. Section 32 creates the offence charged in each of the counts, and relevantly states:
32—Failure to comply with health and safety duty—Category 2
A person commits a Category 2 offence if:
(a) the person has a health and safety duty; and
(b) the person fails to comply with that duty; and
(c)the failure exposes an individual to a risk of death or serious injury or illness.
As to the element (a) in s 32 of the Act, that the person has a health and safety duty, the defendant contended that the charges do not aver this element. I reject that submission. While it might have been better to aver expressly the matter in the charge, I consider that the averment “failed to comply with a health and safety duty …” in fact amounts to such an averment, since an asserted failure to comply with a duty necessarily intends that the defendant in fact has such a duty. Further, it is additionally averred in the particulars to each of the three charges that “(t)he Defendant being a person conducting a business or undertaking, and having a health and safety duty …”. Without going into the matter fully, I consider that it is not necessary to ignore that statement in the particulars and that it can be taken, in conjunction with the terms of the charge, to confirm that the construction I suggest above is correct.
As to the elements (b) and (c) in s 32 of the Act, I consider it plain that each of these elements is properly averred in each of the three charges and that none of the three counts purports to charge an offence unknown to the law.
Ground 3 of appeal: A submission that the charges are bad for not satisfying the statutory requirements for particulars
As to the quite different question of whether the charges are bad for not satisfying the statutory requirements for particulars, it might be said that the words of proposed ground 1 of appeal are broad and unspecific enough to raise that question as well. However, it is expressly raised by proposed ground 3 of appeal which states:
3. Magistrate Bennett should have found that the Complaint and Summons dated 23 July 2015 was invalid, as it does not comply with section 22A of the Summary Procedure Act 1921 (SA) on the grounds that each statement of offence charged contained in the complaint fails to provide reasonable information as to the nature of the charge by failing to allege the essential legal and factual elements of the alleged offences.
The defendant here submits that the particulars stated in the respective counts do not satisfy the statutory requirements for particulars as they have been interpreted by the courts. The relevant provisions of the Summary Procedure Act 1921 appear as follows:
22A—Description of offence
(1) Every information, complaint, summons, warrant, or other document under this Act in which it is necessary to state the matter charged against any person shall be sufficient if it contains a statement of the specific offence with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2) The statement of the offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence.
(3) After the statement of the offence, necessary particulars of the offence shall be set out in ordinary language, in which the use of technical terms shall not be required.
181—Charges
(1) An information or complaint is not invalid because of a defect of substance or of form.
(2) The Court may—
(a)amend an information or complaint to cure a defect of substance or form (but if the defendant has been substantially prejudiced by the defect, no amendment may be made); or
(b)dismiss an information or complaint if the defect cannot appropriately be cured by amendment.
The complainant states of a passage in his outline of argument that “the following principles of general application emerge from the case law and appear to be uncontroversial”. The defendant agreed with that statement, as do I, and the passage appears thus:
a. ‘…a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context’.[26]
b. In assessing the validity of a charge, a court is ‘entitled-and the defendant must be expected-to use common sense in drawing any inference that is apparent on the face of the document’.[27]
c. 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.[28]
d. ‘The question that arises…is whether the… charge contained the particulars necessary to give reasonable information as to the nature of the charge. The “nature of the charge” involves the conduct making up the actual ingredients of the offending’.[29]
e. 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”.[30]
f. These facts need not be as extensive as those which a defendant might obtain on an application for further and better particulars.[31]
[26] DPP Reference No 2 of 2001 [2001] VSCA 114, [40]; cited by Kyrou J in Contract Control Services Pty Ltd v Brown [2012] VSC 369, [33].
[27] Reedy v O’Sullivan [1953] SASR 114, 129.
[28] Johnson v Miller (1937) 59 CLR 467, 486 and 501; Kirk v Industrial Relations Commission (2010) 239 CLR 531, [26].
[29] Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204, [16].
[30] Kirk v Industrial Relations Commission (2010) 239 CLR 531, [26].
[31] Kirk v Industrial Relations Commission (2010) 239 CLR 531, [26]; see also John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338, [78]-[79], [123], [141]; Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204, [52]
The decision of the High Court in Kirk
The defendant naturally seeks to rely on the decision of the High Court in Kirk v Industrial Court where the plurality stated:[32]
[19] 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.
…
[26] 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.[33] In John L Pty Ltd v Attorney‑General (NSW),[34] 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.[35] 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.[36] 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”.[37] These facts need not be as extensive as those which a defendant might obtain on an application for particulars.[38] In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”.[39] McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.[40]
[32] (2010) 239 CLR 531 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
[33] Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J); [1937] HCA 77.
[34] (1987) 163 CLR 508, [1987] HCA 42.
[35] John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 519.
[36] John L Pty Ltd (1987) 163 CLR 508, 519.
[37] John L Pty Ltd (1987) 163 CLR 508, 520.
[38] De Romanis v Sibraa [1977] 2 NSWLR 264, 291‑292, referred to in John L Pty Ltd (1987) 163 CLR 508, 520.
[39] (1937) 59 CLR 467, 486.
[40] (1937) 59 CLR 467, 501 and see Smith v Moody [1903] 1 KB 56, 60.
The correctness of those statements of principle is in no way in issue here. What is of present importance is that the decision of the High Court in Kirk must be read against the background of the form of the particular counts in that case, which the plurality noted were as follows:
[22] The Kirk company’s offence against s 15(1) was stated in the application as:
… that the Defendant, on 28 March 2001, at ‘Mount Hercules Farm’ … a work place operated by the Defendant FAILED TO ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer, contrary to s 15(1) … .
The following particulars were given of the offence:
The particulars of the offence are that the Defendant failed to:
i. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’);
ii. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’);
iii. to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health;
iv. ensure that the Polaris All Terrain Vehicle (‘ATV’) was only operated by persons with appropriate training.
v. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.
The statement of the offences concluded with the allegation that, as a result of the Kirk company’s failures, its employees, in particular Mr Palmer, were “placed at risk of injury” and that Mr Palmer had suffered fatal injuries.
[23] The second offence, against s 16(1), read:
… that the Defendant, being an employer, on 28 March 2001, at ‘Mount Hercules Farm’ … a work place operated by the Defendant FAILED TO ensure that non‑employees … were not exposed to risk of injury arising from the conduct of its undertaking while they were at ‘Mount Hercules Farm’, contrary to Section 16(1) … .
The particulars given of that charge were:
The particulars of the charge are that the Defendant failed to:
i. ensure that persons not in the employer’s employment were not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work in relation to the operation of the Polaris All Terrain Vehicle (‘ATV’);
ii. ensure that the Polaris All Terrain Vehicle (‘ATV’) was only operated by persons with appropriate training; and
iii. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.
In my view, the phraseology of the charges and particulars in Kirk were very clearly inadequate. As their Honours went on to state:
[25] 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.
On the present appeal, the defendant also sought to rely upon my remarks in Dietman v Feast,[41] where it is stated:[42]
The High Court in Johnson v Miller,[43] John L Pty Ltd v Attorney-General (NSW)[44] and Kirk v Industrial Court (NSW)[45] has held that there is an obligation at common law to include material averments on the face of an Information or complaint so as to identify for the defendant the essential factual ingredients of the actual offence. In Johnson v Miller, Dixon J stated (in the context of South Australian legislation):[46]
In stating the offence, the complaint described it in the words of sec 209 (1) of the Licensing Act without specifying or negativing the excuses, and the Justices Act 1921-1936 (secs 55 and 56) provides expressly that such a description shall be sufficient in law. But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions (Smith v Moody).
[41] [2015] SASC 148, [111].
[42] The decision in Dietman v Feast was reversed by the Full Court, but that was on the basis of a question of construction of the somewhat unusual legislation creating the offence there under consideration. I do not understand the statement of general principle here reproduced to have been disapproved.
[43] (1937) 59 CLR 467.
[44] (1987) 163 CLR 508.
[45] (2010) 239 CLR 531.
[46] (1937) 59 CLR 467.
After referring to a lengthy passage in the judgment of Evatt J in Johnson v Miller[47] and to a passage in John L Pty Ltd v Attorney-General (NSW)[48] (both of which need not be reproduced here), and to the passage at paragraph [26] of the plurality judgment in Kirk (which is reproduced above), the passage in Feast continued:
[47] (1937) 59 CLR 467, 495.
[48] (1987) 163 CLR 508, 519-520 (Mason CJ, Deane and Dawson JJ).
Thus, s 120(3) is to be construed against normal common law principles which require specificity of allegation and proof. As Fitzgerald P and Moynihan and Mackenzie JJ stated in R v Thompson:[49]
[49] (1996) 90 A Crim R 416, 419. This was the Court of Criminal Appeal decision from which the appeal in KBT v The Queen (1997) 191 CLR 417 was brought. The decision of the Court of Criminal Appeal was considered and approved by the High Court, the appeal being allowed in relation to the application of the proviso only: (1997) 191 CLR 417, 422-423.
Secondly, the requirement of specificity in allegations made against accused persons has long been accepted as an integral requirement of the criminal justice system, as essential to the protection of an accused; there is no justification for departing from such entrenched principle, so recently reaffirmed by the High Court in Walsh v Tattersall (1996) 88 A Crim R 496 to a greater extent than is provided for by material statutory provision.
It is quite beside the point for the prosecution to say, as they attempt to here, that they are not in a position to formulate a good count which nominates the offender. As Dawson J stated in S v The Queen:[50]
It is not to the point that the prosecution may have found it difficult or even impossible to make an election because of the generally unsatisfactory evidence of the complainant. An accused is not to be prejudiced in his defence by the inability of the prosecution to observe the rules of procedural fairness.
Similarly, Gaudron and McHugh JJ there stated:[51]
While the evidence as given by J at the trial suggests that there may be practical difficulties in particularizing or identifying one or all of the offences charged, it is not obvious that it is wholly impossible so to do. Whatever practical difficulties may exist, those difficulties (even if amounting to an impossibility) cannot justify a criminal trial attended with such uncertainty that the verdict or verdicts must also be seen as uncertain.
[50] (1989) 168 CLR 266, 275.
[51] (1989) 168 CLR 266, 288.
Statutory aids to drafting charges
It is, of course, important to bear in mind that the High Court in both John L Pty Ltd and in Kirk were required to consider the common law requirements in drafting charges unaffected by the various statutory aids to drafting charges encountered in most criminal jurisdictions.[52] In the present case, it is necessary to have regard to the relevant statutory aids in South Australia. The Summary Procedure Act 1921 previously had other relevant provisions, but in its current state[53] the only relevant provisions are s 22A and s 181, which appear as follows:
[52] The reasons why no such provisions there applied are not here relevant but appear in those decisions.
[53] The current state of the provisions applies in the present case.
Sections 22A and 181of the Summary Procedure Act 1921 (which appear in this judgment above) were here reproduced and the passage continued:[54]
As to the meaning of these provisions, the following was stated by Napier CJ in Reedy v O’Sullivan:[55]
It seems to me that the provisions of s 181 and s 22a come to very much the same result. But s 22a goes further than s 181. It does so in two ways: (1) the charge can be stated “without necessarily stating all the essential elements of the offence,” and (2) this is applied to other documents, including the conviction. It follows that, in laying down the law with respect to this complaint, we must be prepared to apply the same rule to convictions, and, for that matter, to indictments under the Criminal Law Consolidation Act, 1935-1952.
So far as s 181 is concerned, the opinion of Poole J in O’Connell v Lee, and my own decision in Arnold v Hughes, are authorities–for what they are worth–in favour of holding that this section does not dispense with the necessity for charging all the necessary elements or ingredients of the offence; but the question that remains is as to the significance of the words used in s 22a, “without necessarily stating all the essential elements of the offence.” It seems to me that this is intended to allow the charge to be stated without crossing every “t” and dotting every “i”, but it does not exempt the complainant from telling the defendant what law he is alleged to have broken, and telling him in addition and with reasonable particularity, how it is alleged that he has broken it (see Pointon v Cox). We are entitled–and the defendant must be expected–to use common sense in drawing any inference that is apparent on the face of the document, but I can see nothing in the language used in s 22a which discloses the intention to abrogate the principle which underlies any proper system of pleading, namely, that the purpose of a pleading is to define the issues for trial, so that the prosecutor, the defendant and the Court are left in no doubt as to the facts to be proved. (Emphasis added; citations omitted)
Thus as to s 181, Reedy v O’Sullivan (and the other South Australian cases cited therein), as well as the decision of the High Court in Johnson v Miller, stand for the proposition that s 181 does not alter the common law position as adumbrated by the High Court in Johnson v Miller,[56] John L Pty Ltd v Attorney-General (NSW)[57] and Kirk v Industrial Court (NSW).[58]As to s 22A, Napier CJ clearly stated the position above, which is binding authority in this State.
[54] At [119].
[55] [1953] SASR 114, 129. An application by the prosecution for special leave to appeal to the High Court against the decision was refused. (O’Sullivan v Reedy (1953) 27 ALJ 290) where Williams ACJ (with whom Webb, Fullagar and Taylor JJ agreed) observed: “I can see no reason for dissenting from anything that was said by the learned Chief Justice in his judgment”. )
[56] (1937) 59 CLR 467.
[57] (1987) 163 CLR 508.
[58] (2010) 239 CLR 531.
In my view those passages in Feast actually lead to a rejection of the defendant’s present submissions. On a general level, I refer to the words of Napier CJ in Reedy v O’Sullivan, reproduced within the passage from Feast above. I consider that the charges as presently pleaded do conform with the requirement of “telling the defendant what law he is alleged to have broken, and telling him in addition and with reasonable particularity, how it is alleged that he has broken it” and that the case now mounted by the defendant is an impermissible attempt to require the prosecution to engage in the process of “crossing every “t” and dotting every “i””, a process which was rejected by Napier CJ in Reedy. As his Honour went on to observe, “We are entitled–and the defendant must be expected–to use common sense in drawing any inference that is apparent on the face of the document”.[59]
[59] [1953] SASR 114, 129.
On a more specific level, I note that the present defendant contends thus in his outline of argument:
A valid charge must set out the essential elements of the offence, including the reasonably practicable measure or step which it is alleged the Appellant should have but did not implement.[60] (Emphasis added)
[60] Kirk at [12]-[14], [19]. R v ACR Roofing [2004] VSCA 215, [31]-[34] [39]. R v FRH Industries [2010] VSCA 18 [48]-[50]. Baiada [2015], [6], [12]-[16], [30]-[45], [48]-[52] (McLeish and Ferguson JJA) and [69], [74], [87]-[147], [154], [157] (Robson JA). John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 519; [1987] HCA 42 (John L).
Thus the defendant contends that the charge must set out “the reasonably practicable measure or step which it is alleged the appellant should have but did not implement”. However, reference to each of the authorities cited in the defendant’s footnote number (60) (reproduced below), including Kirk and Baiada, shows that none of those authorities supports the proposition contended for.
The relevant passage in Kirk is set out above. It refers to “identification” of measures, which is a very different thing to an obligation to set them out within the charge itself. One may similarly refer to the majority judgment of the Victorian Full Court in Baiada Poultry Pty Ltd v VWA;[61] I respectfully agree with the following passages in the joint judgment of McLeish and Ferguson JJA, and again they do not stand for the proposition for which the defendant contends. Their Honours there stated:
[61] [2015] VSCA 344.
[48] It is plain that a charge under s 26(1) of the OHS Act must identify the act or omission which constitutes a contravention of the section. In our opinion, the reasoning in Kirk does not support the proposition that this requires specification of the detailed actions which it was reasonably practicable for the defendant to take. Kirk concerned a trial that had been heard and determined on the basis of charges which were particularised almost entirely in terms of the words of the statute, in circumstances where the onus of proof on the question of reasonable practicability lay on the defendant. Such particulars, as well as failing to inform the defendant of the substance of the charge, amounted in effect to little more than a statement of the statutory offence.
[49] References in the plurality’s judgment to ‘particular measures’ need to be read in that light. The fundamental requirement is that the act or omission that constituted the contravention be specified. Analysis of a failure to do so in terms of the need to specify a ‘measure’ or a ‘particular measure’ does not say anything as to the degree of particularity required. It serves, instead, to emphasize what is the relevant act or omission which gives rise to the offence, namely the measure or measures which the defendant has failed to take to prevent an identifiable risk eventuating. The convictions in Kirk stemmed from charges which wholly failed to identify any such measure. That sufficed to require the convictions to be set aside.
…
[52] There can be little doubt that the present charges should not proceed to hearing unless full and proper particulars have been provided. But that does not mean that without complete particulars the charge-sheet is invalid. We accept that it would be insufficient if the charge-sheet merely recited the statutory language without more. In effect, this was the major defect with the charges in the Kirk case. However, that is not what has been done in this case. The charge-sheet specifies that it was the failure to ensure (so far as it was reasonably practicable):
(a) that the chicken processing line was not operating; and
(b) that there was an adequate system to prevent contact with the processing line when it was being cleaned,
that allegedly resulted in a breach of s 26(1) of the OHS Act. That is, there are two alleged omissions on the part of Baiada which have been identified. They are the things that it is alleged Baiada should have done (or the measures it ought to have taken) to comply with its obligations under the legislation.
[53] Rather than being of general application, or merely reciting the statutory language, these particulars relate specifically to the identified machinery (that is, the chicken processing line) which is at the heart of the incident in question here. Use of the word ‘adequate’ lends itself to standards applicable to the maintenance and operation of such machinery, which the VWA can seek to establish, and Baiada to contest. Taken in conjunction with the rest of what is stated in the charge-sheet (including that it was reasonably practicable for the matters identified to have been done) the elements of the charge have been identified. Baiada’s alleged failures have not been left at large. That is, the charge-sheet goes further than simply saying that Baiada failed to have a safe system in place to prevent the fatality. Baiada knows that there are only two matters that it must focus its attention on in defending the allegations — the operation of and the prevention of contact with the machine during cleaning. (Emphasis added)
I also note that in the recent decision of the Victorian Full Court in DPP v Vibro-Pile (Australia) Pty Ltd, the Court reproduced the above paragraphs [48] and [49] from the joint judgment of McLeish and Ferguson JJA in Baiada, and stated:[62]
We respectfully agree. Applying that analysis to the present case, there was no deficiency in the charge. Particular 4(c) specified with sufficient precision what Vibro-Pile ought to have done. That is, it should have supervised the rigging of the plant to ensure that the correct procedure was followed for attaching the 1.8 metre section. There was no obligation on the prosecution to specify ‘the detailed actions which it was reasonably practicable’ for Vibro-Pile to take. (Emphasis added)
[62] [2016] VSCA 55, [134] (Maxwell P, Redlich and Whelan JJA).
One may refer to a great number of authorities which address various attempts by drafters to formulate charges and particulars in the context of a great number of differing factual situations. But doing so only underlines the fact that the matter remains one of degree. What is required to discharge the present statutory obligation to provide particulars may vary from case to case. In some cases, not much more than the words of a statutory offence may be sufficient; but in other cases, discharging the obligation will require a good deal more.
As to the present case, for the reasons above, I consider that the prospects of the defendant here establishing that any of the charges were so defective that they should be dismissed at this stage are very poor.
Supply of further and better particulars
Obviously, the remarks above are directed to the question of the legal requirements for a valid charge within the borders of the complaint itself, as laid down in s 22A of the Summary Procedure Act 1921.
However, quite apart from that question, there exists a power in the trial court to order the prosecution to furnish additional particulars should a defendant request them and the court considers that the furnishing of them is necessary for a fair trial.[63] Thus McLeish and Ferguson JJA stated in Baiada Poultry Pty Ltd v VWA:[64]
[52] There can be little doubt that the present charges should not proceed to hearing unless full and proper particulars have been provided.
…
[54] … more precise information about what Baiada allegedly should have done to ensure that the processing line was not operating and to prevent contact with it must be known well before a trial. That can and should be done through the provision of further and better particulars. Baiada will then know the boundaries of the case that it must meet at trial. It will have a full opportunity to prepare its defence and to marshal evidence to support it. But for the reasons set out above, it already knows the particulars necessary to give it reasonable information as to the nature of the charge.
[63] This power of a Magistrate to order further particulars has a rich and well known history in South Australia. Decisions include: Johnson v Miller (1937) 59 CLR 467; Lafitte v Samuels (1972) 3 SASR 1; Giles v Samuels (1972) 3 SASR 307; Dalton v Bartlett (1972) 3 SASR 549; Prowse v Bartlett (1972) 3 SASR 472; Hayes v Quinn (1992) 57 SASR 6; Police v McLeod [2011] SASC 160.
[64] [2015] VSCA 344.
This was also the view of the Magistrate in the present case. His Honour first made the following general remarks:
[26] In my view, the complaint is not incurably bad. There are defects in the complaint, which I will consider shortly, but they can be rectified, without prejudice to the Defendant, by amendment and the provision of further and better particulars.
…
[28] … Certainly, occupational health and safety type offences will usually rely on acts of omission which, necessarily, may require greater particularisation than criminal offences laid on the basis of an act of commission. However, the degree of detail required in the statement of offence or particulars, will be determined by the individual case, rather than the type or category of offence.
[29] Secondly, I reject the submission that the absence in the particulars of any explicit reference to the requirement that any remedial measures which ought to have been taken were ‘reasonably practicable’, renders the charges invalid (and, therefore, incurably bad). Though no reference is made to the term ‘reasonably practicable’, otherwise, each of the particulars are worded similarly to the statement of offence, referring to the Defendant having ‘a health and safety duty to ensure, so far as is reasonably practicable’, before stating the nature of the duty pursuant to section 19(3) of the Act. It would have been preferable if the particulars for each count made explicit reference to the statutory requirement that measures taken in regard to the duty to ensure health and safety were ‘reasonably practicable’ (sections 17, 18 and 19 of the Act). However, when the charge and particulars are read together, it is clear enough the particulars are subject to the requirement that remedial measures be ‘reasonable practicable’ as explicitly stated in the corresponding statement of the charge.
The Magistrate made a number of observations concerning specific areas of the charges where further particulars might be given.
At one level, this might be thought to be somewhat hypothetical in that usually the process of supply of further particulars prior to trial depends upon an initial request by the defendant to the prosecutor, followed by supply of some or all of the requested particulars. There may then be a process of argument before the Magistrate as to whether the Court will order the prosecution to supply particulars which they decline to supply voluntarily. The present Magistrate makes it plain that he understands this process very well and correctly concludes his judgment with the following remarks (with which I agree):
[35] The particulars to each count on the complaint contain information as to the legal and factual elements for the respective charges. Consequently, I consider this complaint differs from that in Kirk, where the particulars did little more than recite the legislation without providing a factual basis for the charges. Whilst the degree of detail contained in this complaint is clearly less than that in the Victorian charge-sheet particulars (tendered by the defence), less than full particulars may mean a matter should not proceed to trial (until remedied), but that does not render the charges invalid – Baiada (2015) at [52].
[36] I am satisfied the information in the particulars of this complaint, though limited, describe the essential legal and factual elements of the offences and are sufficient to render the three charges valid under section 22A of the Summary Procedure Act. I consider any shortcomings in the charges or particulars can be rectified by amendment or provision of further and better particulars by prosecution (either by defence request or, if necessary, by court order).
However, the present case is somewhat unusual in that the Magistrate has already recognised a need for further particulars to be supplied prior to trial and, as well, that topic has been ventilated to a degree during the hearing in this Court. Since the complainant here has the status of a model litigant, it may be the best course for the prosecution to consider its position and proceed, of its own motion, to supply, by correspondence with the defendant’s representatives, further and better particulars.
Whether that process does, or does not occur, the defendant will need to consider its position concerning the making of requests for further and better particulars prior to trial. It is sufficient to refer to the recent decision of the Victorian Full Court in DPP v Vibro-Pile (Australia) Pty Ltd where the Court stated:[65]
A complaint about particulars — where it is said that they do not disclose an offence known to the law or would otherwise be productive of unfairness — should be raised at the outset of the trial. There are real difficulties in the way of an accused who waits until the close of the prosecution case, or until an appeal, to complain that unfairness has resulted from the form of the particulars.[66]
[65] [2016] VSCA 55, [131] (Maxwell P, Redlich and Whelan JJA).
[66] Patel v The Queen (2012) 247 CLR 531, 550-551 [66].
Disposition of this application
For all of the reasons above, I consider that the prospects of success of this proposed appeal are very poor.
In considering the question of permission to appeal, I have regard to an assessment of prospects of success and also to the strong stand taken by all Australian courts against the fragmentation of criminal proceedings or quasi-criminal proceedings. Although noting, and making allowance for, the considerable differences between the procedures of this Court and the High Court, I nevertheless find the recent summary of High Court authority by Gageler J in Obeid v The Queen to be of assistance. His Honour there said:[67]
Since Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1], judicial exposition of the conditions under which a stay will be granted in the context of an application for special leave to appeal has uniformly emphasised the need for the existence of “exceptional circumstances”. The standard exposition has gone on to emphasise the relevance, even where the Court or a Justice is satisfied that a stay is required to preserve the subject matter of litigation, of consideration of whether there is a substantial prospect that special leave to appeal will be granted, of whether the grant of a stay would occasion prejudice to a respondent, and of where the balance of convenience might lie in the circumstances of the case. Those factors, however, do not always arise for consideration and collectively they do not exhaust the considerations that may be relevant in every case.
There is a longstanding and general reluctance on the part of this Court in point of policy to make orders which would have the effect of fragmenting a criminal process which has already been set in train. The generality of that reluctance is sufficiently illustrated by the decision and reasoning of the Full Court in the course of refusing special leave to appeal from interlocutory decisions in criminal proceedings in Yates v Wilson and in R v Elliott, and by the much more recent decision of French CJ in Alqudsi v The Commonwealth, which concerned applications for both removal to, and remitter from, this Court in circumstances where an accused in pending criminal proceedings sought to challenge the validity of legislation creating the offence with which the accused was charged.
The reasons given by Kirby J in Frugtniet v Victoria for refusing to stay a criminal proceeding against an accused pending the determination of a proceeding in this Court’s original jurisdiction are particularly instructive in the present context. The proceeding in the original jurisdiction of this Court in that case concerned a challenge to the constitutional validity of legislation which bore on the trial process in a manner which was argued to infringe Ch III of the Constitution. His Honour said:
This Court has more than once ... emphasised how rare it is to make orders which would have the effect of interfering in the conduct of a criminal trial. No case has been brought to my notice where the Court has made a stay order equivalent to the one sought on this summons. Although I do not doubt that, in a proper case, the Court would have the jurisdiction to make such an order to protect the utility of its process, it would be truly exceptional for it to do so. The Court expressed its attitude of restraint most recently in its decision in R v Elliott. There are many earlier such cases. They evidence the strong disposition of appellate courts in Australia – and especially of this Court – not to interfere in the conduct of criminal trials except in the clearest of cases where the need for such interference is absolutely plain and manifestly required. Analogous principles apply ... to the provision of a stay to prevent the commencement of a trial so as to permit a constitutional point to be argued. That point will not be lost to the plaintiff. If need be, at a later stage, it can be raised again.
[67] [2016] HCA 9, [14]-[16].
Having regard to the fact that the accident the subject of these proceedings occurred as long ago as 26 July 2013, and the complaint was laid on 23 July 2015, it is important that this matter should proceed to trial and decision with expedition.
In all of the circumstances, it is clear that I should refuse permission to appeal, and I do so.
I will hear the parties as to the matter of costs.
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