Santos Limited v Markos; Diemould Tooling Services Pty Ltd v Oaten

[2008] HCATrans 372

[2008] HCATrans 372

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2008

B e t w e e n -

SANTOS LIMITED

Applicant

and

IAN MARKOS

Respondent

Office of the Registry
  Adelaide  No A22 of 2008

B e t w e e n -

DIEMOULD TOOLING SERVICES PTY LTD

Applicant

and

LYNETTE OATEN

Respondent

Applications for special leave to appeal

FRENCH CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 13 NOVEMBER 2008, AT 9.30 AM

Copyright in the High Court of Australia

__________________

MR B.W. WALKER, SC:   May it please the Court, in the first matter I appear with my learned friend, MR J.D. EDWARDSON, QC, for the applicant.  (instructed by Kelly & Co).  In the second matter, I appear with my learned friend, MR A.J. CROCKER, for the applicant.  (instructed by Rosey Bart & Associates)

MR M.G. HINTON, QC, Solicitor-General for the State of South Australia:   If the Court pleases, in the first of those matters I appear with MR S.G. HENCHLIFFE, on behalf of the respondent; in the second with MR K.W. SOETRATMA, on behalf of the respondent.  (instructed by Crown Solicitor’s Office)

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, the provisions stipulating for the standards, contravention of which constitutes an offence, may be found starting at page 197 of the application book. Subsection 19(1) of the Occupational Health, Safety and Welfare Act 1986 repeats the formula “as is reasonably practicable”, as your Honours will see in the second line of the chapeau as well as in paragraph (c). That is a hallmark of the nature of the offence constituted by failing to provide what may be summarised as a safe workplace.

Subsection 22(2), which you will find relevantly on page 200 of the application book, has a similar important attribute, namely, the requirement to “take reasonable care”.  These are matters which, in our submission, are of real significance when evaluating the nature of the charges which have been the subject of the complaint on our part.

Your Honours, those charges may be illustrated as to what we have submitted unsuccessfully are the vices presented for the prosecutions by an illustration to be found on page 187 of the application book – the important particulars, 2.5 and 2.6, which are repeated in various ways.  Your Honours will have seen first the variety in terms of the substantive content of each of those items, plus the unhappy linguistic device of the “and/or”, which is repeated throughout them.

This is no mere linguistic device which happens, conveniently for my present argument, to be explicit on page 187.  Exactly the same approach can be seen without using that device explicitly – implicitly in the particulars that one will find at page 241 in the Diemould case; again, a thoroughgoing differentiation of the substantive content of the particulars with the prosecution position amply clear as a result of the objection taken, the questions referred and the arguments in the two Full Courts below, namely, that the prosecution says that they may succeed in Diemould, as in Santos, by proving any one or any one or more in any of the possible combinations from those particulars to make out the one offence.

FRENCH CJ:   To the extent that you rely upon arguments that the complaints are bad for duplicity, that turns upon characterisation of the particular statute, does it not?

MR WALKER:   It does indeed.

FRENCH CJ:   So how does that raise a general matter of principle?  Each of these statutes will vary in their detail and it will be a matter for the relevant courts to construe them and characterise them.

MR WALKER:   There are, I think, three or four parts to my answer to that question.  The first is a general point, namely, the matter the Chief Justice has raised is, by definition, always true of every case in relation to a statutory offence brought to this Court from a State or Territory.  Second, one therefore looks for whether or not the statute in question is – if I can call it this way without being rude to Parliaments – idiosyncratic, that is, unlikely to have any degree of emulation anywhere else or any other time.  And that is clearly not the case; the reverse is the case for this kind of statute, which has been emulated ‑ ‑ ‑

HAYNE J:   But the bottom line, Mr Walker, is what is it that you would have us say by way of general principle as distinct from particular application of known and accepted principles?

MR WALKER:   The bottom line is that where there is what has been, we submit, unfortunately called a “state of affairs offence”, that the question remains the same for those offences as for any offence.  What is the conduct by way of act or omission which may be proved against the defendant which suffices to make an offence, so that if more than one item of conduct sufficient to impose penal liability be alleged there is more than one offence charged, contrary to the requirements of law?

HAYNE J:   But take, for example, page 241 of the application book, the particulars, paragraph 4(1) and 4(2).

MR WALKER:   Yes.

HAYNE J:   Where you are concerned with the standard of reasonableness here you have the prosecutor saying, “Well, what you could have and should have done was either this or that”.  Where is the duplicity in that?

MR WALKER:   If there is a simple “either this or that” by way of particulars of the allegation in the statutory terms there would be no objection; in short, there is no duplicity in the approach your Honour takes.  May I volunteer another one where there is no duplicity?  I hope we have made this clear in our written submission.  There is no duplicity if there is a combination alleged where it is the combination of acts or omissions which is said to constitute the lack of safety.  So that if it is said for want of (a), (b) and (c) the statutory prohibition has been breached then there is no duplicity simply because there are three items.  That is because the prosecution undertakes to prove (a) and (b) and (c) and to resist the defence argument that it was not, for example, reasonably practicable to take one, let alone all three, of those.

HAYNE J:   Is it wrong to characterise the offences alleged here as requiring the prosecution to essay proof of the negative, namely, fail to take reasonable steps, fail to take steps reasonably practicable?

MR WALKER:   In one sense these offences, like offences, committed by company directors for want of diligence, et cetera, always amount to proving a negative in the sense that you have to prove a shortcoming or failure.

HAYNE J:   At the bottom is not the complaint you make about the particulars that you get a range offered, connected by “and/or”, of steps that might, could or should have been taken?

MR WALKER:   Yes.

HAYNE J:   Where is the duplicity in that?

MR WALKER:   The duplicity is that, according to the prosecution case, each one – I will call them “items” – each one of the items is sufficient itself to make out the offence.  Now, that is the point about the “and/or” and that is what distinguishes this case from the position which is, with respect, correctly contemplated in the Full Court of the Supreme Court as being unexceptionable, which we accept as unexceptionable.  If it is (a) plus (b) plus (c) which is said to produce the failure, or even if it is (a) or (b) or (c), then it is clear what the shortcoming is and the contest concerning reasonable practicability, reasonable necessity or reasonable care can be framed according to discrete and understandable singular charges.  However, the combination here is (a) and/or (b) and/or (c), and in fact I am being charitable by restricting myself for brevity only to three; it goes much further down the alphabet in fact in this case.

HAYNE J:   You say the prosecution case is advanced on the footing that proof of one is sufficient.

MR WALKER:   Yes.

HAYNE J:   Where do I identify that?

MR WALKER:   The “and/or” is sufficient for that.  They have always taken the position that they can come to the end of their case, having proved only one of those particulars, or perhaps to be more realistic in this case, only, say, 10 per cent of the particulars, which is many more than one, and still succeed in obtaining a conviction.  Our simple proposition is that to dub these kinds of offences “state of affairs” offences – and I would now add – to say that they involve, in a sense, the proof of a negative, does not remove them from the discipline required of identifying just what it is that is alleged which suffices to impose penal liability, in other words, which constitutes the offence.

Once one sees that what is charged constitutes many more than one offence this then fits exactly the use by Sir Owen Dixon of the word “repetitions” in his words at page 483 of 59 CLR in Johnson v Miller, where he described each of the unnamed person leaving the pub as being “repetitions, not continuations, of the state of facts which exposes the licensee to penal liability” – that is, if the licensee failed to prove one or other of the matters of exculpation provided in that case.  As your Honours have seen from our written argument, the exact analogy conceptually to the matters of exculpation, as Justice Dixon put it in Johnson v Miller, are the tailor‑made cases for the defence which will apply to each and every – and I stress each and every – of the several particulars, items in the particulars, concerning reasonable practicability – the time, trouble, efficacy, expense, et cetera, of each of the different expedients proposed.

It can be seen that the substantive content of the offence provided by section 58, in combination with subsection 19(1) and subsection 22(2), requires attention to different substantial items of what I will call “safety avoidance” both from the point of view of the prosecution – does it fall short of the stipulated standard – and from the point of view of the defence – what is the position concerning practicability?

Once that can be seen and once it is clear that the prosecution does not undertake to prove all of the items in order to obtain a conviction – and that is the critical thing – it can be seen that they must be saying that some one of the many possible combinations and permutations from among that long list of items of alleged shortcoming will suffice to make for a conviction.  It follows that there are substantive differences, both from the prosecution and defence points of view, in the conduct and the circumstances against which that conduct falls to be judged in relation to safety assurance which is differentiated as a matter of factual content and that is the hallmark of several offences.  Once it can be seen that combination (a), (b), (c) and combination (d), (e), (f) and combination (a), (d), (f), et cetera, each is alleged by the prosecution to suffice to obtain a conviction.  It can be seen that there many many offences alleged by this form of charge.

Could I take your Honours to where we submit that the vice in the case was incorrectly understood and dealt with in the Full Court of the Supreme Court?  In the application book, at page 125, in paragraph 22, at about line 8 or so, your Honours will see the Chief Justice starting with a proposition which we, of course, accept, namely:

If, taken together, the relevant acts and omissions in their factual context give rise to a single contravention of the statutory command, there is but one offence.

Yes, we say, and were that the case there would be no complaint of duplicity.  The prosecution would have set itself the task – this is the combination that constitutes the offence – and commonsense suggests in safety assurance cases that may often be the case where it is a combination of matters each in themselves venial which combine to something much more serious.  That is not this case, though, either in the way it has been alleged or argued so far by the prosecution.

The Chief Justice then goes on in the next sentence to attribute a reason for that conclusion by words which include, at the end of the sentence:

and a particular contravention may be (but will not necessarily be) the result of a number of acts or omissions.

That really means that the single contravention being talked about is to be found by an unspecified combination or permutation.  In paragraph 24, just above line 40, there is, in our submission, a disturbing mystery introduced by the Chief Justice’s reasons when one contemplates the future course of these proceedings.  He says:

I do not agree that s 58(1), in conjunction with s 19(1), indicates an intention to penalise in all circumstances each and every separate act or omission that amounts to a failure to observe or comply with the affirmative statements found in s 19(1).

Your Honours, we have looked in vain for any explanation of how it is, how it could be said, that this is a statute which does not inculpate a person who commits one act or omission, itself sufficient to show a shortcoming in safety assurance.  That would be anti‑purposive and, with respect, perverse.  His Honour has ‑ ‑ ‑

FRENCH CJ:   You do not have a difficulty with either conjunctive or disjunctive particulars.

MR WALKER:   Quite so.  It is the combination or permutation problem which sets up different offences.

FRENCH CJ:   But does not the combination or permutation problem really reduce to a disjunction described of circumstances described by each of those combinations?  I mean, they could have done it another way and just linked it with “or” – you know, three “ands” and an “or”.

MR WALKER:   Your Honour, in our submission, they could have and should have done it in another way.

FRENCH CJ:   Does not “and/or” do the same thing logically?

MR WALKER:   No.

FRENCH CJ:   You have just got to work it out.

MR WALKER:   No, because what your Honour calls “just working it out” is something which is entirely inscrutable to the court and to the defence, and we would go so far as to say and to the prosecution, until one knows about the results of proof.  It is just not possible to know what are the facts which constitute the alleged offence.

HAYNE J:   Can I just understand that better by reference to the particulars at 240, 241?  It is alleged there was a workplace death.

MR WALKER:   Yes.

HAYNE J:   It is alleged, further, that there were deficiencies in plant, system, training, is that right?

MR WALKER:   Yes, and supervision.

HAYNE J:   And supervision.  Is your complaint that identification of the deficiencies alleged in respect of want of safe system contains a number of permutations and combinations?

MR WALKER:   It does in this case.  It need not, it could be done differently.

HAYNE J:   Of course things could be differently, but the complaint is because there are perms and coms of safe system that is enough to demonstrate duplicity.

MR WALKER:   Yes.

HAYNE J:   What is the best authority you have to say that that suffices to establish duplicity?

MR WALKER:   Your Honour, probably the best one would be Vrisakis, the Full Court in Western Australia.  We have canvassed I think all of these authorities in our written submissions.  But it has to be said that Byrne v Baker, which of course preceded Vrisakis, in Victoria – that is ‑ ‑ ‑

HAYNE J:   He is the company director.

MR WALKER:   Yes, they are both company director cases and they both give rise in exactly similar fashion to the permutations and combinations problems.  In our submission, the principled outcome in each of those cases is precisely in accordance with what ought to have been the result in this case.

And to return, at long last, to finish my answer to the Chief Justice with which my address commenced, these kinds of provisions are by no means idiosyncratic; they are emulated in the area of industrial safety around the country in the way we have pointed out.  None of the so‑called subtle distinctions which are referred to in the written submission against us are explained as providing ratio for radical distinction of outcome.  Certainly, the Chief Justice in the Supreme Court did not consider so.

It also provides the opportunity for this Court to make statements which are immediately, without the need for any adaptation, applicable to other important criminal regimes like company director and company officer delinquencies.  It will apply in short to all those matters, now more numerous than ever, where Parliaments have regulated the conduct of responsible persons by stipulating standards to be met where commonsense and also, in some cases, statutory or legislative exemplification tells one that there are many, many ways in which the offence can be committed.  Our submission simply is that this is a case where that will not be known, to the detriment of the administration of criminal justice, until the end of the prosecution case, and for those reasons there should be special leave.

FRENCH CJ:   Thank you, Mr Walker.  Mr Solicitor.

MR HINTON:   If the Court pleases, in my submission, this application is premature.  The point will remain live if ‑ ‑ ‑

HAYNE J:   Why is a complaint about duplicity premature?  The complaint is either good or bad.  If it is good, why is it premature?

MR HINTON:   The complaint focuses upon the particulars and how ‑ ‑ ‑

HAYNE J:   Maybe, and if the particulars reveal duplicity, why is that premature?

MR HINTON:   The complaint about the particulars is the difficulty in defending the charge.  That is something that a trial judge will be able to see in far better light than this Court.  The actual problem ‑ ‑ ‑

HAYNE J:   At the moment the trial judge has found to hold, has he not – or has she not – that these charges are not duplex?

MR HINTON:   The charges are not, but the difficulties, the practical difficulties, that were pointed out before the Chief Justice in the Full Court, and indeed which are alluded to today, knowing exactly what is in effect the path of reasoning to guilt that the Crown relies upon, were crystallised before the trial judge.  They can be raised again in a Full Court.  They may well be moot, they may not be, but they remain live for this Court and are crystallised and are visible.  The practical difficulties then can be considered not in perhaps an unrealistic light but in a very practical, obvious revealed light.

That is not to concede that the question whether or not section 19(1) – because ultimately you must come back to the section – creates more than one offence.  That is not to concede that whether or not it creates more than one offence it should be a grant of special leave.  As your Honour the Chief Justice pointed out, at the end of the day we have to come back to the statute.  It is not a question of law of public importance in the submission of the respondent because, firstly, it does involve a question of statutory construction.  That statute does not have a mirror image interstate.  The differences, although subtle, are sufficient to warrant a difference in construction and in interpretation, such that any decision of this Court will not really go beyond what is required in this State.

In this State, since 1991, this provision has been construed consistent with the decision of the Full Court.  It has not produced an authority that your Honours have been referred to highlighting this practical problem.  That does not mean we do not have one for the first time, but it has not shown one that has actually occurred as opposed to a possible, anticipated one.  The miscarriage forecast is potential but cannot be guaranteed until such time as the prosecution begins to make its case.

HAYNE J:   But the miscarriage, if there be one, is now, because if the offence is duplex, how does the defendant answer it?  It seems to me, Mr Solicitor, that the point of prematurity is not one that has too many feathers.

MR HINTON:   When one strips away the complaint today, there are numerous ways in which the Crown invites the Court to reason to guilt on one charge.  That has never ever given rise to duplicity.  The case that your Honour was referred to, Vrisakis, was one where there were two paths of reasoning to guilt for two separate offences.  That becomes problematic.  That is not this case.  What you are offered here is numerous paths of reasoning to guilt to one offence.  Now, that is not unknown.  Juries every day in murder charges are invited to reason to guilt on numerous different paths.  In conspiracy we particularise the agreement by reference to numerous overt acts – not required to establish each act, particularised in terms of “and/or”, “and/or” – any one which suffices to prove by inference the agreement is sufficient.

HAYNE J:   I would not want you to go out of this courtroom, Mr Solicitor, thinking that at least for my part this is a model of criminal pleading.

MR HINTON:   If your Honour pleases, I will take that on board.  But my point is we are talking about paths of reasoning to guilt – inadequately disclosed perhaps by the particulars that can be sorted out in advance of the trial.  But if there is more than one path of reasoning to guilt on one charge, it is not duplicitous.  One must be very careful to separate out evidence relied upon that opens up more than one path of reasoning to guilt on one charge and to distinguish that from evidence that gives rise to two paths and

two different charges.  The complaint, as I understand it, is two paths of reasoning to guilt and no more.

HAYNE J:   No, the complaint is two offences charged, or more than two; that is the complaint.

MR HINTON:   In which case we come back to section 19(1) and we come back to the power to reason to guilt on the command in subsection (1) by more than one path.  If the Court pleases, in my submission, in actual fact all the particulars show are more than one path of reasoning to guilt which with perhaps greater disclosure the practical difficulties for trial judge and indeed defendant can be overcome.  To that extent the application is premature, in my submission.  If that is not accepted then in any event it does not give rise to a question of general importance such that a grant of special leave should be given.  If the Court pleases.

FRENCH CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, as to the suggestion that there can, as it were, be practical expedience adopted, in our submission this is a question fundamental to the course which is set at the commencement of a prosecution.  It is not a matter of practical expedience, whether that be by negotiation between legal representatives as to what the Crown will do, or the question of costs, which is the practical expedient raised by the Chief Justice – application book, page 132, paragraph 52 – in our submission, another inappropriate approach which, if special leave not be granted, remains as authority in this State, that this is a matter, the difficulties which the Chief Justice agrees may arise, have been addressed by questions of costs.  In our submission, that is in principle a completely different and, we say, with respect, wrong area of discourse to have been introduced into an area which ought to be, we accept, considered one governed by well‑understood principles.

The well‑understood principles, as your Honours appreciate, we very much urge from the reasons, especially of Sir Owen Dixon, but also of Mr Justice Evatt in Johnson v Miller.  The perhaps odd facts of Johnson v Miller really serve to demonstrate very instructively the fundamental importance that the principle involved, which was not understood to be novel then, and no case has suggested was either misunderstood in that famous authority or has changed in the meantime.  It is very important nationally because it applies to statutes which, in general cases, leaving aside specific provisions to the contrary, regulate criminal procedure in each jurisdiction in this country along the same lines of one offence, one charge, with Jervis Act or other provisions for amendment, et cetera, and defects to be dealt with.

In our submission, the notion that the form, say, of 19(1) or 22(2) supplies the answer of a single offence is to ignore the fact that what has been charged, or alleged, I should say, by these disparate items – they are disparate because they are substantively different as to their content and will attract different facts concerning reasonable practicability, et cetera – they are each alleging something which the prosecution says severally, or in multiple different combinations, would make out an offence.  That absolutely fits ‑ ‑ ‑

HAYNE J:   Just as to that, is it important to recognise that the offence charged is a failure to ensure a result charge?

MR WALKER:   Yes.  In our submission, that is why, notwithstanding it is a failure case in that sense ‑ ‑ ‑

HAYNE J:   But to ensure a result.

MR WALKER:   Failure to ensure a result – one needs to know what are my acts or omissions which constitute the culpable failure.

HAYNE J:   The central fact is there was a workplace death.

MR WALKER:   There has to be a result at the end, but that, of course, is a most familiar form of criminal statute, namely, the criminalising of conduct because a certain consequence has followed.  In our submission, it is of the essence to recognise that the conduct, the acts or omissions attributable to the defendant, are never in such a case receding from the attention of the court as the focus of attention with respect to the defendant answering the case.  They are just as important when one is looking at questions of duplicity or as it truly is in this case, multiplicity, as in a case where a result is not an element of the charge.

Your Honours, in our submission the present position completely fits the way in which Mr Justice Dixon put it in Johnson v Miller, where he said that if the argument were accepted, which his Honour rejected and which we submit is exactly similar to what has been held below, then this would follow, that the prosecution “can prove all or any of them” – that is, the alleged contraventions – “in support of his complaint, which ex hypothesi”, and that is exactly true here, “is capable of applying to each of them indifferently”, and of course that is right.  The prosecution says all of these, let us say, 100 acts or omission, of all of them each demonstrates completely and sufficiently a shortcoming.  Of course, bearing in mind that it is a shortcoming or failure to ensure offence, those words which create the offence can apply indifferently to each of the items.

HAYNE J:   But you would accept, would you not, that to charge each omission separately would be vexatious and abusive, would it not? 

MR WALKER:   Your Honour, prosecutorial discretion is something which is ‑ ‑ ‑

HAYNE J:   No, not as a matter of discretion – to charge them.  Whether or not the discretion is exercised would be abusive, would it not?

MR WALKER:   In this case one imagines that probably would be so, but we are not caught between two poles with no middle course.  It is not a matter of they must be multiplex or else be abusive – far from it.  There are combinations.  We stress there are combinations which, as combinations which the prosecution undertakes to prove as a combination, so they fail if they do not make out the combination, then of course that would be entirely unexceptionable.

FRENCH CJ:   Thank you, Mr Walker. 

Whether the particulars of the offences supplied in these matters reveal that the charges brought are duplicitous depends upon the application of well‑established principles to the particular charges brought under particular legislation.  No question of general principle would fall for consideration if special leave were to be granted.

We are not persuaded that the decision of the Full Court of the Supreme Court of South Australia in these matters is attended by sufficient doubt to warrant the grant of leave.  Special leave will be refused.

What is the position with costs in the circumstance, Mr Hinton?

MR HINTON:   If the Court pleases, there is an agreement that the parties will bear their own costs.

FRENCH CJ:   All right.  So be it.  Thank you.

AT 10.04 AM THE MATTERS WERE CONCLUDED