Noakes v Star Aviation Services Pty Ltd
[2017] ACTIC 1
•31 May 2017
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | NOAKES v STAR AVIATION SERVICES PTY LTD |
| Citation: | [2017] ACTIC 1 |
| DecisionDate: | 31 May 2017 |
| Before: | Industrial Magistrate Walker |
| Decision: | See [72] |
Catchwords: | INDUSTRIAL LAW – recusal – reasonable apprehension of bias – impartiality – prejudgment - particulars – description of an offence - defective information – defective charge – amendment out of time |
Legislation Cited: | Magistrates Court Act 1930 (ACT) ss 25, 28, 27(2) Mining and Quarrying Safety Act 1999 (Qld) Occupational Health and Safety Act 1983 (NSW) Work Health and Safety Act 2011 (ACT) ss32, 33, 232 Work Health and Safety (National Uniform Legislation) Act (NT) |
Regulation Cited: | Work Health and Safety Regulation 2011 (ACT) regs 19(1)(a), 19(3)(a), 19(3)(c), 19(3(f), 79(2) |
Cases Cited: | AG NSW v Tho Services Limited [2016] NSWCCA 221 |
| Parties: | A Noakes (Informant) |
| Representation: | Informant Defendant |
| File Numbers: | CC 40022 of 2016 CC 40023 of 2016 |
INDUSTRIAL MAGISTRATE WALKER
The application
Star Aviation Services Pty Ltd is being prosecuted for breaches of the Work Health and Safety Act 2011 (ACT) (‘the Act’). On 8 December 2016, the prosecution commenced an application orally that I should recuse myself from hearing the matter on the grounds of bias arising from the circumstances of my identification of an issue regarding the validity of the charges. As the grounds of the application were unclear, the prosecutor was directed to file a written application. That application was returnable before the court on 13 February 2017. Further argument was heard on that day. Since then, further enquiries have been made of the parties. I have determined that it is not appropriate to recuse myself. I also conclude that the charges, whilst defective, may be capable of remedy. These are my reasons for those decisions.
History of the prosecution
The charges
There are two charges relating to breaches of ss 32 and 33 of the Act alleged to have occurred on 30 or 31 January 2014. The limitation period in respect to these charges is two years (s232 Work Health and Safety Act 2011).
Charges 40022-3 of 2016 read:
CC16/40022 – Star Aviation Services Pty Ltd, who had a health and safety duty, contravened s33 of the Work Health and Safety Act 2011, by failing to comply with the duty.
CC16/40023 – Star Aviation Services Pty Ltd, who had a health and safety duty, contravened s32 of the Work Health and Safety Act 2011, by failing to comply with the duty and that failure exposed an individual, namely, Emmanuel Poulis, to risk of serious injury.
Both offences were alleged to have occurred on 30 January 2014 or 31 January 2014 at the Canberra Airport.
On 29 January 2016, the informations were sworn before a deputy registrar of the Magistrates Court pursuant to s25 of the Magistrates Court Act 1930. The charges were thus “brought” within the limitation period. A summons was issued in consequence.
The defendant was served with charges, particulars, a statement of facts and summons for each offence on 5 February 2016 at its registered office, five days outside the limitation period.
The charges do not specify the capacity in which the defendant is alleged to hold a duty nor the duty or duties alleged to have been breached. For example, for duty holders in the form of persons conducting businesses or undertakings, the primary duty appears in
s 19 of the Act and further duties are detailed in ss 20 to 26 inclusive.
7. Particulars provided with the charges do furnish these details; they allege that the defendant was a person conducting an undertaking or business (PCBU), identify what the informant alleges the defendant’s duty was and how it was breached, when and where. Whether those particulars are adequate remains in dispute.
Until receipt of an affidavit from the Director of Public Prosecutions Office on 31 March 2017, following an enquiry to the parties through my associate, there was no reliable basis to conclude that the particulars were filed in court along with the charges on 29 January 2016. The defendant does not contest this.
The offences are ambulatory in nature in that the sections relied on in the charges create offences by reference to duties arising elsewhere in the Act. The charges fail to specify those duties. The capacity in which the duty is held and the duty alleged to have been breached are essential elements of the offences. The charges are defective.
The bias application
There were a number of mentions prior to the date set for hearing of this matter. On 25 May 2016, it was listed for a three day hearing in September 2016. However, on 22 August 2016, relying on assurances by the parties as to a substantial level of agreement as to the facts in the matter, the time allocated for the hearing was reduced to a one day, being 6 December 2016.
On that day, defence counsel opened by stating that he had received notice the previous afternoon that facts served on the prosecution prior to 16 August 2016 which he had
thought they were agreed, were not. As a result, the defence would be prejudiced if the court permitted all issues to be ventilated and the matter would take in excess of the allocated day. The defence relied on Environment Protection Authority v Ramsey Food Processing Pty Ltd [2009] NSWLEC 152 to the effect that a party might be bound to an agreement where another party had relied upon it to its prejudice.[1]
[1] At paragraph 16, Biscoe J stated:
“The onus is on the party seeking leave to contradict or qualify agreed facts to make out a case for leave including as to the circumstances in which they came to agree the facts. An application to contradict or qualify agreed facts after considered negotiation and legal advice, particularly when made as late as the hearing, challenges the integrity of the agreed facts procedure and should be approached with caution. There has to be an incentive for parties to agree facts. To allow a party to back out of such an agreement easily does not encourage agreement in the first place. In a general sense, there is prejudice in denying to a party the right to rely on something that they reasonably thought was agreed.”
In light of the pressure on court listings, it was apparent that the matter would be delayed many months if it could not be completed that day. As I was concerned about the defect on the face of the charges, and it seemed pointless to delay the prosecution further if it was doomed to fail, I sought submissions from the parties on this issue.
I referred the parties to a decision I had delivered orally the previous week which touched upon the issue.[2] I had specifically asked the prosecutor in that matter to draw the issue to the attention of his colleagues dealing with work, health and safety prosecutions. The prosecutor in this case was unaware of it. The court was again presented with charges which on their face did not disclose a criminal offence. Any likelihood of that issue being addressed as between the parties appeared to have evaporated because the issue had not been considered and the anticipated discussions had not taken place.
[2] Carnall v Gibbons [2016] ACTIC 1
My regrettably intemperate response reflected frustration at the prospect of resolution of the matter being derailed. I said to the prosecutor, without criticism of her personally, that the Director’s office was running “these prosecutions”, being a reference to prosecutions under the Act, “abysmally” and that the particular case was “a mess”. Based upon my experience as the dedicated Industrial Court magistrate, I observed that there were problems every time such prosecutions came to hearing and that the lack of effective prosecution caused delay which disadvantaged defendants.
Following a further exchange regarding the issue, I posed the question: “the charges being defective, why should I allow the prosecution to proceed?”
The prosecutor requested time to consider the issue which was allowed. I stated:
“We will not be proceeding with the matter today to hearing so any witnesses can be called off. It will be a matter of either relisting, if I form the view that that can be done appropriately, or dismissing the charges. But I’ll give the parties an opportunity to consider that”.
The matter was stood down. The parties were provided with a draft of the Gibbons decision. The Court resumed when the prosecutor indicated that she was ready to resume. There was no application for further time.
In summary, the prosecutor submitted:
·that the Court had power to amend the charge pursuant to s28 Magistrates Court Act 1930;
·that there was no prejudice to the defendant in doing so because firstly, she asserted, there was no lack of clarity in the Charge and secondly, if there was, the responsibility for it lay with both defendant and prosecution in not having communicated about agreed facts before the hearing;
·it was not in the public interest to dismiss the charge without consideration of the evidence.
The prosecutor was asked if she had completed her submission and indicated that she had.
Having been referred to Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332, I adjourned to 8 December 2016 to consider the matter.
The defendant’s legal team again attended, now for the eighth time. When the Court was assembled, prior to delivery of my decision and without notice to the defendant or the Court, the prosecution made an oral application that I recuse myself. When I adjourned briefly to consider the application, it was unclear to me whether that application was made on the grounds of actual or apprehended bias. I therefore directed that a written application be filed.
That application was filed on 15 December 2016. Unfortunately, it was not possible to relist the application until 13 February 2017. On that date, the prosecution filed written submissions in court, not having previously served them on the defendant. Both parties made oral submissions.
The written application
Although clarification was again required at the hearing of the application, the prosecution ultimately confirmed that its application for recusal was based solely on the ground of apprehended, rather than actual, bias.
The prosecution submitted that this arose as a result of my conduct which evidenced prejudice, partiality or prejudgment and also as a result of my reference to extraneous material, being generally other prosecutions in the Industrial Court and specifically, the Gibbons decision of the previous week.
In particular, the prosecution referred to comments made by me said to evidence partiality or prejudgment by “inviting a challenge to the charge” and evidencing prejudgment of the outcome of that invitation by asking "the charges being defective, why should I allow the prosecution to proceed?"
It was submitted that in criticizing the prosecution’s running of matters, it could be apprehended that the prosecution would not be heard fairly on the preliminary issue of the charge and the substantive hearing would not be determined fairly, impartially and on its legal and factual merits.
The defendant did not cavil with the authorities relied upon by the prosecution nor the principles extracted from those authorities but submitted:
“that based upon the test of the fair-minded lay observer, who is informed and with an understanding of all the relevant circumstances and facts of the case at hand, the only conclusion that such a lay observer would make in regard to this application is that it is one of judge shopping by the prosecution.”
Legal principles - bias
Wilson J in R v Merrick (No 4) [2016] NSWSC 309 observed at [57]:
“The question of bias or apprehended bias is determined objectively. Legal principle is applied to established fact. It is an unpleasant application for a judicial officer to have to determine, because it involves a review of the conduct of the Court and a consideration of whether that conduct is such as to establish actual prejudice or to cause a fair minded, reasonably well-informed lay observer to apprehend bias. Because of the unpleasant nature personally of such applications one must endeavour to apply legal principle to established fact, with rigor, lest a fundamental element of our system of justice, its impartiality in the administration of justice, be compromised.”
An application to recuse on the grounds of bias may be brought in criminal proceedings by either party: Rozenes and Anor v Kelly and Ors [1996] 1 VR 320 per Tadgell, Callaway JJA and Crockett AJA.
However, “courts, when asked to exercise their supervisory jurisdiction...are reticent to interfere in criminal proceedings before the completion of those proceedings”: see Lazarus v Director of Public Prosecutions [2015] NSWSC 426 at [99]; Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [84]; W O v Director of Public Prosecutions [2009] NSWCA 370 at [19].
The test of apprehended bias is that detailed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63, as applied in the Australian Capital Territory in Eastman v R [2015] ACTCA 24 at [6]: “...a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
The question is one of real, not remote, possibilities as opposed to probabilities (Ebner at [7]).
Ebner identifies a two stage process:
1.the identification of what it is said might lead a judge to decide a case other than on its legal and factual merits; and
2.an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
The lay observer may be assumed to “have knowledge of the material objective facts” [3] and “is also assumed to be someone not wholly ignorant of legal matters” and with some understanding of the factual circumstances of the case[4].
[3] Webb v R [1994] HCA 30 per Deane J at [2].
[4] Johnson v Johnson [2000] HCA 48per Kirby J at [53] applied in R v Merrick (No 4) [2016] NSWSC 309 by Wilson J. See also Ormiston J A in State of Victoria v Psaila & Anor; State of Victoria v Lamb [1999] VSCA 193 at [47].
In determining the application, the judicial officer must prioritise the need to maintain confidence in the judicial system[5]. However, in doing so, the judicial officer ought not be too ready to accede to applications, having an obligation to perform the judicial functions vested in her and to avoid “judge shopping”[6].
[5] Johnson at [12].
[6] Re JRL; Ex p CJL (1986) 161 CLR 342 at 352; Ebner at [19]; Fitzgerald v Director of Public Prosecutions (1991) 24 NSWLR 45.
A judicial officer has an obligation to case manage matters which ought not be confused with pre-judgment[7].
[7] Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in Johnson at [13]: “…The reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx”.
The test of reasonable apprehension of bias is not whether the judicial officer will determine the matter adversely to the applicant but rather whether she will not decide the case impartially or without prejudice[8]. The test requires that there must be a reasonable apprehension that the trial judge has formed a fixed view, to which it may be expected that she will adhere, regardless of the evidence of submissions made by the complaining party[9].
[8] Mason J in Re JRL at 352; Johnson at 518; British American Tobacco Australia Services Limited v Laurie & Ors [2011] HCA 2 at [71]
[9] per Basten J in Barakat v Goritsas (No. 2) [2012] NSWSC 36 at [40]; see also Kwan v Kang & Ors [2003] NSWCA 336 at [83]
In Webb four categories of bias were identified. The prosecution rely on two in this case, namely pre-judgment and disqualification by conduct.
Prejudgment of factual issues, particularly those involving a determination as to the credit of witnesses, are likely to raise the possibility of bias: see British American Tobacco. By inference, prejudgment of legal issues involves different considerations as the judicial officer is expected to bring some knowledge of the law to matters before her.
When the application is based upon conduct, including comment, the observations of Wilson J in Merrick (No 4) are relevant:
“Fairness cannot be gauged by expressions of disapprobation from the Court to one counsel or another. The Court has no obligation, if it does express disapprobation of one counsel, to express equal disapprobation of the opposing counsel. That is simply a matter related to the conduct of the respective cases”.
Consideration of bias application
I used intemperate language regarding the manner in which work, health and safety prosecutions have been conducted in the Territory. The observations went beyond those strictly necessary for the matter before me. However, I do not consider that a reasonably informed lay minded observer could conclude that this evidenced a real possibility that I would therefore not judge either the preliminary or substantive issues before me fairly because of that expressed concern.
As to my observations about the conduct of the particular case, I am satisfied that they were factual and did not evidence any attitude of impartiality.
As to the issue of prejudgment, it was entirely proper to raise the issue of the defective charges and the possible consequence of this. It was clear that there were problems in the matter proceeding on the day it was listed and certainly in proceeding to finalisation. Further delay or part-hearing was undesirable, although most unfortunately this has happened anyway. If this issue was ultimately to be determinative of the outcome, then it was appropriate that it be addressed at the outset.
The Court reasonably expected that the parties had considered the form of the charge. Based upon defence counsel’s comments and attempted clarification of the issue, the defence clearly had. Both parties acknowledged that the charge was defective. The parties were given time to further to consider and make submissions on the issue. No further time was sought. In allowing that time, I evidenced an openness to persuasion as to how the matter would proceed. Following receipt of submissions, I adjourned to consider the issue further and to review a potentially relevant recent authority.
My conduct was not such as to raise a reasonable apprehension of prejudgment in an informed, fair-minded lay observer that I would decide the preliminary issue of dismissal of the charges, nor the outcome of the prosecution if it was not dismissed at that stage, other than on its legal merits.
The bias application is dismissed.
The defective charges
Submissions
The prosecution submitted that either:
·the charges were in proper form having regard to the provisions of sub-s 27(2) of the Magistrates Court Act which provides: “The description of any offence in the words of the Act, ordinance, law, order, by-law, regulation, or other instrument creating the offence, or in similar words, is sufficient in law”;
·or if they were not they should be read in conjunction with the particulars;
·or, if necessary, they should be amended pursuant to s28 of the MCA which provides:
(1) If at the hearing of any Charge or summons any objection is taken to an alleged defect in it in substance or form or if objection is taken to any variance between the Charge or summons and the evidence adduced at the hearing of it, the court may make any amendment in the Charge or summons that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided.
(2) The court must not make an amendment under subsection (1) if it considers that the amendment cannot be made without injustice to the defendant;
·and, if the charges were to be amended, the appropriate way to address any prejudice which might flow was to allow an adjournment of the hearing.
The defendant submitted that the charges as laid were defective in failing to characterise the defendant as a person conducting a business or undertaking and failing to specify in either the charge or the particulars of the actual worksite, being the aircraft. The defendant submitted that it had been “almost misled as to the nature of the case” and invited the court to dismiss the charges.
Legal principles – defective charges
In the Australian Capital Territory, the proper form of a charge to be heard summarily is determined by application of s27 MCA unless other legislation applies a different provision that is that the description of the offence in the words of the Act creating it, or similar words, is sufficient in law.
A detailed analysis of the evolution of the law as to the form of summary charges was recently provided by Mossop AsJ in the decision of Burridge v Chief Magistrate of the Magistrates Court of the Australian Capital Territory [2016] ACTSC 332. His Honour concluded at [76]:
“.... This means that the description of an offence in a charge is sufficient in law if it adopts the words of the statute creating the offence or similar words. Any requirement for further particulars may be necessitated by the rules of procedural fairness, but the absence of those particulars from the charge itself does not render the charge a defective one. John L is not to the contrary of this approach because it was a decision which applied the common law and did not involve circumstances where statutory provisions the equivalent of ss 27 (2) or 28 applied.”
His Honour was referring to the decision in John L Pty Ltdv Attorney-General (New South Wales) [1987] HCA 42 in which their Honours had applied the common law position in respect to the correct formulation of a charge as the statutory provision akin section 27 did not apply, thus requiring that the charge identify the ingredients of the actual offence including any material particular relied upon.
The High Court in Kirk v Industrial Relations Commission (New South Wales) [2010] HCA 1 concluded that it is a jurisdictional error for an inferior court to determine and convict on a charge not known to law. In that particular case the question was whether the charge brought by the regulator, which failed to particularise what “reasonably practicable” measures the defendant could but did not take in order to fulfil its duty pursuant to the Occupational Health And Safety Act 1983 (NSW), was one upon which the Court could convict. The Court concluded that it was not.
The nature of the duty holder and the content of the duty alleged to have been breached are essential elements of offences under this Act and like provisions under the national uniform legislation.[10]
[10] see AG NSW v Tho Services Limited [2016] NSWCCA 221; Kidman (supra); Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58; Safe Work NSW v Tamex Transport Services P/L [2016] NSWDC 295.
In DPP v Kypri [2011] VSCA 257, the Court was required to consider the validity of a criminal charge. The DPP submitted that a defendant could be in no doubt as to the nature of the allegation against him because he had been served with the full brief of evidence. Nettle JA, as he then was, stated: “The validity of a charge is to be determined according to the contents of the summons and charge and a defendant is entitled to insist upon a valid charge before the matter proceeds to evidence.”
Significantly, and unlike the particular facts in Burridge, where the offence is ambulatory in nature, it is necessary to incorporate both the words of the offence creating provision and those of any relevant provision in so far as they are required to provide essential elements of the offence[11].
[11] Almaston J in Woolworths (Victoria) Ltd v March Unreported SCT Vic 12 June 1986: “It cannot have been intended that [the section] should be relied upon merely by the recitation of the words of the “offence” section for that would tell the defendant nothing.” See also Kypri per Nettle JA at [15] “Further, because section 49(1)(e) operates in an ambulatory fashion, creating offences by reference to contraventions of obligations otherwise appearing in several different subsections of the act, it is semantically inapt to speak of something as framed in terms “similar” to s. 49(1)(e) unless it is specifically identifies the particular obligation which is alleged to have been breached. Furthermore, and perhaps for that reason, it has been held that a provision like section 27 has no application in relation to an ambulatory provision like s.49(1)(e)” and at [16]: “a charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context. If, therefore the contents of the charge in the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid... Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the subsection of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.”
S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5 dealt with an appeal in relation to the Work, Health and Safety (National Uniform Legislation) Act (NT). The Court, referring to Kypri, observed at [72]:
“Generally no difficulty will arise in circumstances where the offence is created by a single provision which contains all the elements of that offence. Different considerations arise where, as here, one provision creates the offence by reference to basic elements, and recourse is required to some other provision or provisions in order to determine the content of one or more of those basic elements”.
These observations are consistent with the approach taken in relation to the framing of charges in the occupational or work health and safety area both under previous legislation and more recently in cases involving the national uniform legislation. In Harrisonv President of the Industrial Court of Queensland & Ors [2016] QCA 89, the Queensland Court of Appeal dealt with a case stated in relation to a prosecution pursuant to the Mining and Quarrying Safety and Health Act 1999 (Qld). Their Honours considered whether defective complaints were a nullity because the charges failed to specify the particular health and safety obligations which the defendant was said to have failed to comply with and, further, whether if the charges were a nullity because of defects, they were amenable to an amendment. Their Honours observed at [120]:
“The industrial court looked at the defects in the complaints by reference to both the text of the charge, the particulars included in the complaint and further particulars provided by the complainant. It assists analysis to confine attention to the charge and the particulars in the complaints because, as the industrial court observed, if the complaints as originally laid were nullities, the later particulars were irrelevant”.
As in Kidman and Kypri, their Honours observed that if a particular obligation was alleged to have been breached, that should be stated in the charge.
The fact that a charge is defective in formulation does not, at least in the Australian Capital Territory, mean that an inferior court has no jurisdiction to deal with the matter. In relation to the legislative scheme prescribed in the MCA, Mossop AsJ observed that whilst a magistrate is required to determine if she has jurisdiction when presented with a defective charge, it is a jurisdictional error to proceed to hearing on such a charge (Burridge at [46-7]).
Determination of the adequacy or sufficiency of a charge or charge is made by reference to the terms of the charge itself and not by reference to extraneous material. Other evidentiary material may be relevant, not to cure any defect but in relation to assessing the understanding of the defendant as to the charge he, she or it faces. That understanding may be relevant in determining whether an amendment should be allowed (Kidman at [66]).
Amendment of a defective charge is available in accordance with s 28 of the MCA, even after evidence is received. Both Kypri and Kidman concluded that amendment should be allowed in the circumstances of those cases as the defendant was aware of the true nature of the application within the limitation period. In Kypri, Nettle JA at [27] noted that as a matter of principle amendment was allowed before expiration of the limitation period provided the true nature of the charge was discernible from particulars or otherwise. Nettle JA commented that this approach may create practical difficulties, such as disputes over what was received and when but this issue was one of fact and degree ([39]-[40]).
However, amendment outside the limitation period which in effect purports to create a new offence will not be allowed (see Kypri at [23] and Kidman at [117]).
Thus the provision of particulars which provide details of the essential elements of the offence may be relied on to cure a defective charge if brought to the defendant’s notice within the limitation period but not thereafter. To do so would amount to allowing a charge to be brought outside the limitation period, effectively defeating the intention of the legislature in limiting the period of exposure to criminal sanction.
Whether such notice has been given is a question of fact. Whether it should be taken to have cured a defective charge may be arguable in the circumstances. A consideration will be whether such a conclusion would be unfairly prejudicial to the defendant.
Their Honours in Kidman considered the form in which injustice might manifest from amendment of charges outside the limitation period [119]. They include:
·the impact on the manner in which an hearing might be conducted when the amendment comes late in the process,
·an increased likelihood of lost evidence,
·oppression of the defendant as a result of delay,
·that the defendant’s ability to defend itself may be reduced because of how it has arranged its affairs in light of its understanding of what it faced and
·the public interest in expeditious resolution of criminal litigation.
Application of principle to these facts
The charges in their current form are defective in that they fail to specify essential elements of the offences, including the nature of the duty holder and the content of the duty or duties alleged to have been breached.
The particulars relied upon do specify the alleged nature of the duty holder, do identify particular duties which that duty holder is said to hold, being those arising pursuant to sub-ss 19(1)(a), 19(3)(a), 19(3)(c), s19(3)(f) of the Act and sub-s79(2) of the Work Health and Safety Regulation 2011, do identify to whom the duty is alleged to be owed and provide details of manner in which it is alleged the duty was breached and indeed what steps were reasonably practicable to prevent that breach.
Whilst the defence submits that this particularisation is insufficient to allow it to know what it is to meet at hearing, the particulars are sufficient to identify the essential elements of the offences. But those particulars do not form part of the charges in this matter; they are extraneous documents, like the statement of facts also filed in court.
It is at this point that the chronology of bringing the charges, what was filed with them and service of them and related documents relied upon by the prosecution becomes critical. It is now unchallenged that the particulars and statement of alleged facts were filed in court along with the information and summons. It is also common ground that they were not served on the defendant within the limitation period.
That being the case, the charges before the court cannot now be considered cured in the sense of being sufficient by having put the defendant on notice of the case it is to meet within the limitation period.
There was no application to amend the charges within the limitation period. Indeed, there was no application to amend until the Court raised its concern regarding the apparent defect in the charges at the hearing. The authorities make it clear that a defective charge cannot be amended out of time if doing so creates a new offence or the defendant was not on notice of the true nature of the charge within the limitation period. That would be so if amendment was allowed in this case. Section 28 MCA cannot apply in these circumstances.
Orders:
1.The application to recuse is dismissed.
2.The application to amend is refused.
3.Charges 16/40022 and 16/40023 are dismissed.
4.I make no order as to costs.
5.Order 4 is stayed for 28 days with liberty to apply within that time on 48 hours notice.
L.A. Walker
Industrial Magistrate
31 May 2017
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Industrial Magistrate Walker. Associate: Christina Karolis Date: 31 May 2017 |
0
24
0