John Holland Pty Ltd v Hanel - [2016] SASC 192

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] SASC 192
Decision Date: 15 December 2016

CaseChat Overview and Summary

The case of John Holland Pty Ltd v Hanel involves a dispute over the validity of charges laid by the defendant against the appellant. The case was heard in the South Australian Supreme Court. The primary legal issue before the court was whether the charges laid against the appellant were sufficient under the law to be considered valid. The court was tasked with determining if the charges met the legal requirements for specifying the essential elements of the alleged offence.

The court examined the principles established in previous cases regarding the sufficiency of charges. It noted that a charge must be interpreted in a manner that a reasonable defendant would understand it, and that it must include the particular act, matter, or thing alleged as the foundation of the charge. The court also highlighted that the charge must specify the essential factual ingredients of the actual offence. The decision in Kirk v Industrial Relations Commission was particularly relevant, as it established that charges must specify the reasonably practicable measures that the accused should have implemented.

In this case, the court found that the charges did not properly state a case against the appellant as required by law. The charges were considered ineffective because they failed to allege the essential elements of the crime known to law, specifically the reasonably practicable measures that the accused should have but did not implement. Given that a critical averment of the charge was missing and the limitation period had expired, the court concluded that the complaint did not disclose an offence and could not be amended to rectify the deficiency. Therefore, the conviction was set aside, and the complaint was dismissed.

The court's final orders were to set aside the conviction and dismiss the complaint, finding it to be ineffective and a nullity due to its failure to adequately specify the essential elements of the offence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 appeal1. 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].