SKM Services Pty Ltd v Magistrates' Court of Victoria (No 2)
[2019] VSC 856
•19 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03289
| SKM SERVICES PTY LTD (ACN 130 867 220) | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA AT BROADMEADOWS | First Respondent |
| MICHAEL O’GRADY (WORKSAFE VICTORIA) | Second Respondent |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Submissions filed to 2 August 2019, and again 12 December 2019 |
DATE OF JUDGMENT: | 19 December 2019 |
CASE MAY BE CITED AS: | SKM Services Pty Ltd v Magistrates' Court of Victoria & anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2019] VSC 856 |
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APPEAL – Prosecution on three charges for breach of s 21(1) of the Occupational Health and Safety Act 2004 (Vic) – Appeal on a question of law pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) – Appeal allowed – Whether charges should be remitted to the Magistrates’ Court for fresh hearing – Whether second respondent should pay the appellant’s costs of the hearing before the Magistrates’ Court.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Taylor with Ms K Grinberg | Herbert Smith Freehills |
| For the First Respondent | No appearance | |
| For the Second Respondent | Mr C Carr | Worksafe |
TABLE OF CONTENTS
Introduction and summary.............................................................................................................. 1
Factual background and legal principles...................................................................................... 1
Legal principles............................................................................................................................. 3
Submissions........................................................................................................................................ 5
Charge 2.......................................................................................................................................... 5
Charge 1.......................................................................................................................................... 5
Respondent........................................................................................................................... 5
Appellant.............................................................................................................................. 5
Charge 3.......................................................................................................................................... 6
Respondent........................................................................................................................... 6
Appellant.............................................................................................................................. 7
Consideration...................................................................................................................................... 7
Charge 1.......................................................................................................................................... 7
Charge 3.......................................................................................................................................... 9
Conclusion and orders.................................................................................................................... 16
HER HONOUR:
Introduction and summary
These are the reasons for the orders I make to give effect to my principal reasons for allowing this appeal, published as SKM Services Pty Ltd v Magistrates’ Court of Victoria and anor[1] (‘Principal Reasons’). The appeal concerns the conviction of the appellant (also ‘SKM’) on three charges arising under the Occupational Health and Safety Act 2004 (Vic) (‘OHS Act’) laid after a worker operating an aluminium baler at SKM’s Coolaroo plant suffered an amputation injury in October 2014. The appeal was pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) (‘Procedure Act’). The contradictor to the appeal is a Worksafe inspector, formally the second respondent, but in the Principal Reasons and these reasons ‘the respondent’.
[1][2019] VSC 460 First Revision. The Principal Reasons were initially published on 15 July 2019. In the course of preparation of these reasons, I became aware of two clerical errors, which are now corrected in the First Revision of the Principal Reasons, published with these reasons.
Following delivery of my Principal Reasons the parties filed written submissions as to the orders they considered appropriate. They were not in agreement, save as to the order that should be made in respect of one charge.
For the reasons I now give, I will quash the conviction and sentence on Charge 1, and remit that Charge to the Magistrates’ Court for hearing according to law. I will quash the conviction and sentence on Charge 2 and enter a verdict of acquittal. I will quash the conviction and sentence on Charge 3, but decline to enter a verdict of acquittal or remit the Charge to the Magistrates’ Court for fresh hearing.
Factual background and legal principles
All three charges alleged failure to comply with s 21(2)(a) of the OHS Act. Section 21(1) requires employers to provide, as far as is reasonably practicable, a working environment for their employees that is safe and without risks to health. Section 21(2) provides that, without limitation to subsection (1), an employer contravenes that subsection if the employer fails to do any of a number of things, identified in the paragraphs that follow, including paragraph (a) which states:
(a)Provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
The first charge (‘Charge 1’) related to the plant, being the aluminium baler, that the worker was operating at the time of his injury. The second charge (‘Charge 2’) also related to plant, but in this instance a steel can baler. The third charge (‘Charge 3’) alleged an offence by failure to provide, so far as was reasonably practicable, a safe system of work in relation to both balers. All three Charges charged that the offence was committed ‘on or about 24 October 2014’, which was the day of the injury to the worker.
In my Principal Reasons I concluded that SKM had established vitiating errors of law in relation to Charge 3, being a failure to dismiss that Charge for duplicity; Charges 2 and 3 in relation to the steel can baler, being that there was no evidence to support the convictions in respect of that baler; and Charges 1 and 2, being that the Magistrate applied the wrong test as to reasonable practicability.
Shortly after the Principal Reasons were first published, an order was made for the winding up of a related company to the appellant, SKM Corporate Pty Ltd. The Court made enquiry of the parties in August shortly after receipt of their submissions on orders as to whether a similar step was likely or proposed in respect of the appellant, as I thought it possible that this may be relevant to the orders to be made or their timing. The appellant replied that liquidation was likely, without objection or comment from the respondent.[2] In October of this year, the appellant informed the Court and the respondent that the appellant was now in the hands of a receiver, who had confirmed that it was likely that the appellant would in due course be placed into liquidation. No comment was received from the respondent. The Court was subsequently informed by the respondent that liquidators were appointed to the appellant pursuant to a creditors’ resolution for its voluntary winding up made on 20 November 2019. The Court then requested that the parties confer as to whether orders were required or appropriate. On 12 December 2019, the parties confirmed that they maintain their original positions in relation to the orders that they seek.
[2]The solicitors for the respondent later complained that they were not copied into exchanges between the appellant and the Court but this does not appear correct on the Court’s records.
Legal principles
Section 272 of the Procedure Act provides as follows in relation to the right of appeal, and orders that the Court may make on allowing an appeal:
272 Appeal to Supreme Court on a question of law
(1)A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.
(2) …
(3)An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.
(4) - (8) …
(9)After hearing and determining the appeal, the Supreme Court may make any order that it thinks appropriate, including an order remitting the case for rehearing to the Magistrates' Court with or without any direction in law.
(10)An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for rehearing to the Magistrates' Court, may be enforced as an order of the Supreme Court.
(11) ...
In making enquiry of the parties as to whether orders were necessary or appropriate when it became apparent that liquidators had been appointed to the appellant, I had in mind the consequences on proceedings and enforcement against a company of court ordered winding up pursuant to s 471B of the Corporations Act 2001 (Cth) (‘Corporations Act’). That section provides that leave ’of the Court’ is required to ‘begin or proceed with’ either ‘a proceeding in a court against the company or in relation to the property of the company’ or ‘enforcement process in relation to such property’. Only this Court or superior federal courts may grant such leave. While there is debate on the point, there is some authority that this section also applies to criminal proceedings.[3]
[3]Burwood Council v Pan Pac Investments Pty Ltd (No 2) [2019] NSWLEC 29, [16] (Pain J). The decision refers to the divergence of opinion on the point.
The liquidation of the appellant is not, however, court ordered. It is by way of a creditors’ voluntary winding up pursuant to s 491(1) of the Corporations Act. The section that sets out the consequences of such a winding up is s 500 which provides as follows:
500 Execution and civil proceedings
(1)Any attachment, sequestration, distress or execution put in force against the property of the company after the passing of the resolution for voluntary winding up is void.
(2)After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company except by leave of the Court and subject to such terms as the Court imposes.
(3)The Court may require any contributory, trustee, receiver, banker, agent, officer or employee of the company to pay, deliver, convey, surrender or transfer forthwith or within such time as the Court directs to the liquidator any money, property of the company or books in his, her or its hands to which the company is prima facie entitled.
In contrast with s 471B, s 500(2) is expressly restricted to civil proceedings.[4] There may also be a question as to whether the making of orders to give effect to the Principal Reasons and the order allowing the appeal, both of which preceded the resolution to liquidate the appellant, are properly to be considered as ‘proceeding with’ the appeal after that resolution. In any event, it would appear that leave is not required to make these orders, and neither party has suggested to the contrary. If I am wrong in that conclusion, then the respondent may seek leave from an appropriate court in respect of any charges which are remitted.
[4]The difference is discussed by Schmidt J in Workcover Authority of NSW v Josef & Sons Contracting Pty Ltd (in liquidation) & ors [2002] NSWIRComm 226.
Submissions
Charge 2
Both parties agree that the conviction and sentence on this Charge should be quashed and a verdict of acquittal entered. I agree. Charge 2 related to the steel can baler and in my Principal Reasons I found that there was no evidence that it was in operation or even operable on the day charged. Indeed, the Magistrate accepted that it was not in operation on that day.[5] In these circumstances, acquittal is the only possible result.
[5]Principal Reasons (n 1) [114], [137].
Charge 1
Respondent
The respondent seeks that the conviction and sentence on Charge 1 be quashed, but that the Charge be remitted for hearing to the Magistrates’ Court.
The respondent submits that ‘in considering whether to remit a charge for rehearing where there was evidence that permitted a guilty verdict, the necessary signposts are to be found in the cases concerning a permanent stay of a criminal proceeding’.[6] On the basis of those principles, the respondent submits that remitting for rehearing is the appropriate course. In particular, the respondent observed in its written submissions that SKM had not led any evidence that it has suffered, or indeed will suffer, any oppressive consequences from being subject to the court process to date, or, indeed, remittal for rehearing.
[6]Michael O’Grady (WorkSafe Victoria), “Second Respondent’s Submissions as to Orders”, submissions in SKM Services Pty Ltd v Magistrates’ Court of Victoria & anor, S CI 2017 03289, Lansdowne AsJ, 21 July 2019 [3].
Appellant
SKM seeks that a verdict of acquittal be entered in respect of Charge 1, or that the conviction and sentence be quashed and I decline to remit the Charge for further hearing.
The matters on which it relied in its written submissions are essentially three - delay; that the public interest in accountability for the injury was secured by the prosecution of the supplier of the plant, and its subsequent entry into an enforceable undertaking; and the significance of the error made by the Magistrate. SKM submits that it would bring the system of criminal justice into disrepute, and in effect amount to an abuse of process, to require it to meet Charge 1 again ‘because of a fundamental and basic error of law made by the Magistrate’.[7] SKM disputes that the principles relating to a permanent stay are relevant to the determination of the appropriate order.
[7]SKM Services Pty Ltd, “Appellant’s Submissions as to Orders”, submissions in SKM Services Pty Ltd v Magistrates’ Court of Victoria & anor, S CI 2017 03289, Lansdowne AsJ, 29 July 2019 [8].
In the email to the Court conveying the information that the parties maintain their former positions in respect of the orders that they seek, notwithstanding that the appellant is to be wound up, the solicitors for the appellant make the further submission that the appellant would be unable to fund any defence if any Charge is remitted, and would not have sufficient assets to meet any penalty, if one was imposed.
Charge 3
Respondent
The respondent submits that the Court should amend Charge 3 to delete reference to the steel can baler (i.e. so that it applied only to the aluminium baler), quash the sentence, and remit the Charge for re-sentencing before the Magistrates’ Court at the conclusion of the rehearing of Charge 1.
In support of this submission, the respondent submits as follows. Duplicity (the error I found established in relation to Charge 3) does not mean that a charge should be dismissed. Rather, the prosecution should be put to its election by splitting the charge, and this should have occurred before the hearing commenced. The respondent notes that the explanation for the failure of counsel for the appellant to raise the question of duplicity before the hearing commenced may lie, as I discussed in the Principal Reasons, in the then current view of defence counsel that it was appropriate for such a contention not to be put until after the prosecution case had closed.[8] An unwitting failure to conduct the litigation appropriately should not, however, result in the profit to the appellant of the Charge being quashed without remitter.
[8]Principal Reasons (n 1) [147]-[148].
The respondent submits that had the complaint been raised at the proper time, then the complaint would have been upheld with the consequence that the prosecution would have been required to amend or split Charge 3. The consequence would have been that ‘[t]he appellant would inevitably have then faced, and been found guilty of, a charge that related only to the failure to provide a safe system of work associated with the task of external strapping of bales on the aluminium baler’.[9]
[9]Second Respondent’s Submissions as to Orders (n 6) [19].
The respondent submits that the Principal Reasons do not disturb the finding of the Magistrate that there was no safe system of work for external strapping of bales, and that that task was carried out on the aluminium baler. As such, the respondent submits, that aspect of the Charge sufficed to secure a verdict.
Appellant
The appellant relies on the analysis I undertook in the Principal Reasons in relation to the failure to raise duplicity prior to SKM’s no case submission, and submits that the no case submission was an opportunity for SKM to seek to amend, or to elect, which it did not take up. On that basis, the appellant submits that it cannot be said that had the point been taken at the commencement of the hearing the respondent would have sought to elect or amend.
Consideration
Charge 1
I consider that this Charge should be remitted to the Magistrates’ Court for rehearing according to law. What then occurs will be a matter for the respondent, should he decide in all the circumstances now pertaining not to take further action; and for the Magistrates’ Court should the liquidators for the appellant make any application to that Court for a permanent stay. I reach this conclusion for the following reasons.
First, having regard to the seriousness of the Charge. The consequences of the risk the subject of the Charge were serious, and shown to be so by what in fact occurred.
Secondly, by way of comparison of the respective roles of this Court on an appeal and the Magistrates’ Court on a prosecution. The task before this Court on an appeal pursuant to s 272 is principally to ascertain whether any vitiating error of law is shown. Issues relating to prosecutorial discretion, utility or abuse of process are in my view more appropriately to be determined by the court before which the prosecution may continue, than in this Court.
These issues may include the matters on which the appellant relies, such as the significance of the delay since the incident; the current circumstances of the appellant, including the liquidation and any financial consequences for a proper defence that flow therefrom; and the question as to whether the interests of justice and protection of workers have been sufficiently addressed by the undertakings entered into by the supplier. Further, before the Magistrates’ Court those issues should be addressed on evidence, and not just by way of submission. In particular, if the appellant through its liquidators wishes to submit that it would be unable to fund a proper defence, and to that extent further prosecution would be oppressive, then that must be on evidence and presented to the court by solicitors clearly shown to be retained by the liquidators, as opposed to the company prior to its liquidation.
As stated, I reach this conclusion because of the different roles to be performed by each court, rather than by way of direct application of the principles relating to a permanent stay of a criminal prosecution. Implicit in this conclusion is that it is for the Magistrates’ Court to apply those principles, if application is made to it. For that reason, it is not necessary to determine the extent to which those principles might determine the exercise of this Court’s discretion pursuant to s 272(9).
The third reason for my decision to remit Charge 1 relates to the submission by the appellant, which is somewhat at odds with its stance that the principles relating to permanent stay are irrelevant, that the question of a permanent stay is not confined to instances where prosecution would be unjustifiably oppressive, vexatious or unfair to the accused but can also include consideration as to whether the prosecution would bring the system of criminal justice into disrepute. That is, of course, a correct statement of principle.[10] The appellant seeks to apply this statement of principle to the current situation by asserting that the error made by the Magistrate in relation to the test for reasonable practicability was so ‘fundamental and basic’ that it would bring the system of criminal justice into disrepute.
[10]Rogers v The Queen (1994) 181 CLR 251, 256.
I accept that in some circumstances a vitiating error of law may be so significant that the charge should not be remitted. The agreed outcome in respect of Charge 2 is one such example. However, I do not accept the submission by the appellant that the error I found in respect of Charge 1 was of this character. As I set out in my Principal Reasons, there was a respectable argument that the error was not a vitiating one, because there were other indications in the Magistrate’s reasoning that suggested she had applied the correct test as to reasonable practicability.[11]
[11](n 1) [100]-[111].
I will remit Charge 1 to the Magistrates’ Court for rehearing by a different Magistrate according to law.
Charge 3
The outcome that the respondent seeks is that Charge 3 be now amended to be restricted to the aluminium baler and only the sentence, not the conviction, be quashed with the Charge so amended remitted to the Magistrates’ Court for resentencing at the conclusion of the rehearing of Charge 1.
The most compelling argument in support of this outcome is the proposition that the Magistrate made findings that suffice to support conviction in respect of the aluminium baler only. This submission requires renewed detailed consideration of the Magistrate’s reasons.
As I noted in the Principal Reasons, the Magistrate correctly identified the three contested elements of the Charges, including Charge 3, as risk, failure to take an identified measure which would have eliminated or reduced the risk, and that it was reasonably practicable for the appellant to have taken that measure.[12] Particular 6 to Charge 3 identified the risk in relation to both balers as follows:
The risk that employees operating the balers were exposed to was a risk of death or serious injury from a crushing or shearing in injury by performing the task of strapping the bales of waste in close proximity to the exit point of the balers, with access to the chamber at the exit point when the door was open, and it was not controlled or restricted.
[12]Ibid [67].
Particular 9 to Charge 3 identified the measure that should have been taken, and asserted that it was reasonably practicable for SKM to have taken it, as follows:
a.Developing and implementing a safe operating procedure involving employees keeping a safe distance away from the front door of the baler including the identification of the risks associated with the task and the balers.
In relation to risk, the Magistrate accepted the evidence of Inspector Taylor that the risks ‘associated with the balers on the relevant day’ (in the plural, but which in accordance with the Principal Reasons must be read as confined to the aluminium baler):
included risks associated with the platen extending past the chamber placing hands or fingers at risk of a shearing injury; the automatic closing of the door created a shearing hazard with the clapper slot; and the heavy vertical doors powered by hydraulics which if lost pressure could fall and cause injury.
The fact that the steel can baler was not in operation on the day in question, or that it was used to bale steel which does not require the strapping function that aluminium does, does not satisfy me that it did not pose a risk to operator safety.[13]
[13]Exhibit SMB-4 to affidavit of Steven Mark Bell sworn 23 August 2017, 3 [6] - 4 [2].
In relation to the measure that should have been taken, the Magistrate found as follows in relation to Charge 3:
In relation to charge three, I am satisfied beyond reasonable doubt that it was reasonably practicable for SKM to have mitigated the risk by developing and implementing safe operating procedures involving employees keeping a safe distance from the front door of the balers irrespective of the function of that particular machine. SKM adopted a procedure of strapping bales external to the baler. The Operation Procedure manual provided by Rowland with these two balers dealt with the process for the internal strapping of the bales – this highlighted a need for SKM to develop a separate and safe operating procedure for the strapping of bales external to the machines.
There was no documented procedure put into place by SKM to require the strapping of bales after a second bale had been ejected from the baler, nor any other directions about a system of work to ensure separation between employees and the balers. It was made clear to SKM by Rowland upon commissioning both of the balers in 2012 that fundamental to the safety of the workplace was to implement this system of work to ensure separation between the worker and the machine.
I heard evidence from no less than two employees of SKM who worked on the balers that a system of work that ensured a safe distance between the baler and the strapper was an available and obvious administrative control which to some extent had been implemented by the workers themselves. The failure of SKM to develop, implement and document such a system of work increased the probability that employees would be exposed to the risk of injury inherent in the use of the balers.
In relation to whether that measure was reasonably practicable, having regard to the reliance on the expertise and assurances of the supplier, the Magistrate found as follows:
I am satisfied beyond reasonable doubt that SKM’s reliance on the supplier’s expertise, assurances and risk assessments was not reasonable in the circumstances and that it was reasonably practicable to take identified measures to reduce the risk namely fitting tunnel guards to create a barrier between the operator and the door and the internals of both balers. Further, to document and implement safe operating procedures for the external strapping of the balers and to stipulate a safe distance that employees must keep from the exit point of machines.
Subject to some observations I will shortly make, I accept the submission of the respondent that these findings are capable of supporting conviction on Charge 3 in respect of the aluminium baler. The real issue is whether the prosecution should now be permitted to correct the defect in the Charge to sustain that conviction.
The appellant did not make any complaint about duplicity in its opening before the Magistrate. It did, however, make that complaint in its no case submission after the prosecution closed its case. The respondent says that was too late, and deprived it of an opportunity to amend that should have been open to it.
In the Principal Reasons I concluded that Charge 3 was duplicitous on its face. In the case of patent duplicity, as the Court of Appeal made explicit in Downer EDI Works Pty Ltd v R[14] (‘Downer’), a decision handed down after the no case submission before the Magistrate had been put, a complaint of duplicity should be raised at the outset of the hearing. However, the Court of Appeal did acknowledge in Downer that until then there had been a widespread view, at least amongst defence counsel, that it was appropriate for such a complaint not to be made until after the prosecution case had closed. It was for that reason that I did not consider that the appellant should be prevented from raising the duplicity point on appeal.
[14][2017] VSCA 27.
I also addressed in the Principal Reasons the possibility that the ambiguity only became evident once all the evidence had been led.[15] On re-reading the no case submissions for the purpose of these reasons, it appears that this is how the appellant put it at that time. Counsel submitted that the complaint of duplicity could not have been made at the outset because it was not how the prosecution had opened its case and was not how the particulars were pleaded. The prosecution case proceeded on the basis that both machines were in operation and were operated in an identical way. The latent ambiguity only became apparent when the evidence was led, which revealed that the steel can baler was not in operation on or about the charged date, and in any event bales from the steel can baler were not strapped. In its no case submissions, the appellant submitted that it was too late now for the prosecution to elect to proceed on Charge 3 in relation to the aluminium baler only because it would occasion prejudice to the appellant, as the prosecution case had closed and particular lines of cross-examination had not been taken.[16]
[15]Principal Reasons (n 1) [160]-[163].
[16]Exhibit SMB-2 to affidavit of Steven Mark Bell sworn 23 August 2017, transcript before Magistrate 19 December 2016, 366-368.
Whichever view of the ambiguity in Charge 3 is correct, I agree with the appellant that it is speculative to assert, as the respondent does, that the respondent would have sought to amend or elect to confine this Charge to the aluminium baler had the allegation that it was duplicitous been raised at the outset of the hearing. I reach this conclusion because the respondent did not take up that opportunity when the claim was made in the no case submission. To the contrary – it argued that the Charge was not bad for duplicity.[17] It is, accordingly, by no means ‘inevitable’ that the appellant would, had the complaint been raised at the proper time, have faced a charge relating to the aluminium baler only.
[17]Ibid 395.
The respondent in his submissions in reply on this appeal relies on the fact that before the Magistrate the appellant submitted that it was even at that stage too late for the respondent to elect, and submits that the appellant should not be permitted to put a contrary submission now. In my view there is no necessary inconsistency between the appellant’s submissions at that time and now. To argue, as the appellant did before the Magistrate, that it was too late to elect did not prevent the respondent from arguing in response at that time that if, contrary to its principal position, the Charge was duplicitous, he could still, and so sought, to elect to confine it to the aluminium baler.
It was for the prosecution in laying its charges to ensure, having regard to the investigations and inquiries it had undertaken, that the charges would be supported by the evidence. Whether the steel can baler was operable on or about the day in question and whether the system of work for that baler differed from the system for the aluminium baler were matters that could have been the subject of those investigations and inquiries, and should have been if a composite charge in relation to both balers was under consideration.
Further, distinct charges were laid in relation to each baler considered as plant. It is striking then that the prosecution chose to bring only one charge in relation to safe system of work in respect of both balers. As set out in the Principal Reasons, this was an error, and in my view a profound one, given that the operation in fact of the two balers was so different. I think it possible that it also had unfortunate consequences for the determination of the Charge. The extracts I quote above from the Magistrate’s reasons show that she did not distinguish to any great extent between the two balers in respect of their operation. She expressly identified a difference in relation to risk (in the portion quoted which effectively reversed the onus of proof) and made oblique reference to the necessity for a safe operating procedure ‘irrespective of the function of that particular machine’ in relation to the measure that should have been taken. However, this observation is immediately followed by the statement that SKM ‘adopted a procedure of strapping bales external to the baler’. As I discussed in the Principal Reasons, there was only limited evidence that steel bales were ever strapped, and not on or about the day charged.[18] In my view, the failure to charge the absence of a safe operating procedure separately in relation to each baler may have obscured the necessity for the prosecution to prove their case in respect of each. This factor does not favour sustaining the conviction in relation to the aluminium baler by now allowing amendment.
[18]Principal Reasons (n 1) [136].
A further factor against that outcome is the limitation period within which a prosecution may be launched. This is because amendment now would essentially amount to a fresh charge outside that limitation period.
Pursuant to s 21(4) of the OHS Act, an offence constituted by breach of s 21(1) is an indictable offence, although it may be heard and determined summarily.
At the time the Charges were laid, on 1 September 2015, s 132 of the OHS Act provided as follows:
132 Limitation period for prosecutions
Proceedings for an indictable offence against this Act may be brought—
(a)within 2 years after the offence is committed or the Authority becomes aware the offence was committed; or
(b)at any time with the written authorisation of the Director of Public Prosecutions.
Section 132 of the OHS Act was amended by the Worksafe Legislation Amendment Act2017 (Vic). Section 132 now allows potentially a longer period for the commencement of a prosecution. It now provides as follows in relation to limitation periods:
132 Limitation period for prosecutions
(1)Proceedings for an indictable offence against this Act may be brought within the latest of the following periods to occur—
(a)within 2 years after the offence first comes to the notice of the Authority;
(b)within one year after a coronial report was made or a coronial inquiry or inquest ended, if it appeared from the report or the proceedings at the inquiry or inquest that an indictable offence had been committed against this Act;
(c)if an undertaking has been given under section 16 in relation to the offence, within 6 months after—
(i)the undertaking is contravened; or
(ii)it comes to the notice of the Authority that the undertaking has been contravened; or
(iii)the Authority has agreed under section 16(2) to the withdrawal of the undertaking;
(d)at any time with the written authorisation of the Director of Public Prosecutions.
(2)A proceeding for an indictable offence may be brought after the end of the applicable limitation period in subsection (1) if fresh evidence relevant to the offence is discovered and the court is satisfied that the evidence could not reasonably have been discovered within the relevant limitation period.
The amendments do not, however, apply to Charge 3. By s 185 of the OHS Act, the amendments in relation to limitation periods only apply to prosecutions commenced after the commencement of those provisions, which was on 26 October 2017. That date was after all of the following events: the laying of Charge 3; the conviction of the appellant on that Charge; and the commencement of the appeal. On the basis that the relevant provision is s 132 as it stood at the time Charge 3 was laid, and until amendment in 2017, the usual limitation period has well and truly expired.
Worksafe attended the premises of the appellant on the day of the accident. I infer that pursuant to s 132(1)(a), the usual limitation period for the charging of an offence constituted by breach of s 21(1) expired on 23 October 2016. The hearing in the Magistrates’ Court did not commence until 5 December 2016. In other words, even if the appellant had made its complaint of duplicity at the outset of the hearing, the time for a fresh charge had already expired. It had well and truly expired by the time the appeal in this Court commenced. Section 132 as it then stood did allow, in paragraph (b), for the commencement of a prosecution after the expiration of the two years with the authorisation of the Director of Public Prosecutions. However, in my view the construction of the section means that this was intended to be the exception.
On balance, I do not consider that the prosecution should now be permitted to amend Charge 3 so as to confine it to the aluminium baler only, whether that was to occur in this Court or on remitter. I will quash the conviction and I decline to remit the Charge for fresh hearing.
Conclusion and orders
For these reasons I will quash the conviction and sentence on Charge 2 and enter a verdict of acquittal. I will quash the conviction and sentence on Charge 1, and remit that Charge to the Magistrates’ Court for hearing according to law.
The conviction and sentence on Charge 3 must in my view be quashed in total, notwithstanding that the findings of the Magistrate are capable of supporting conviction in respect of the aluminium baler. That fact means that if the Charge could now be appropriately amended, the conviction in respect of the aluminium baler could stand, and only the sentence would need reconsideration. However, it is not in my view appropriate to now allow the Charge to be amended to be restricted to the aluminium baler, whether that were to occur in this Court, or on remitter. Nor is it appropriate to enter a verdict of acquittal on that Charge, as the appellant seeks. Accordingly, I quash the conviction and sentence but decline to remit that Charge to the Magistrates’ Court for fresh hearing.
As part of the sentence on Charge 1, the Magistrate ordered the appellant to pay $45,000 by way of the respondent’s ‘statutory costs’. She made no distinct costs order in respect of Charges 2 and 3, of which the appellant was also convicted, and so I infer that the costs order was intended to relate to the whole of the prosecution’s costs. The parties did not, however, adduce any evidence, or make any submissions on this point, and so this inference is preliminary only, and is not intended to bind them in any subsequent costs dispute.
The parties agree as to the costs orders that should be made, with the exception of the costs of the hearing in the Magistrates’ Court. They agree that the respondent should pay the appellant’s costs of the appeal. The appellant also seeks that the respondent pay the appellant’s costs of hearing before the Magistrates’ Court.
In my view, that would be an appropriate outcome in respect of Charges 2 and 3, given that both fail because of the nature of the evidence adduced by the prosecution in respect of the operation of the steel can baler. It is not necessarily an appropriate outcome in respect of Charge 1. That Charge may be reheard; it is not clear if and to what extent some of the evidence already given may be relied on; and the outcome is unclear. Nor is it clear on the material before me to what extent the appellant’s costs can be divided as between the Charges. The parties’ submissions do not address these complexities.
Viewing the allocation of costs to Charges in a global sense, as being one third to each of the three Charges, I will order that the respondent pay the appellant’s costs of the appeal and two thirds of the appellant’s costs of the hearing before the Magistrates’ Court. I will remit the question of the remaining one third of the appellant’s costs in the original hearing before the Magistrates’ Court to that Court.
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