CHANGES AND PARTICULARS IN OHS CASES. Dr Gregory Lyon QC Barrister

Transcription

1 CHANGES AND PARTICULARS IN OHS CASES Dr Gregory Lyon QC Barrister

2 CHARGES AND PARTICULARS IN OHS CASES by Greg Lyon QC Introduction For some years now, one of the hot topics in OHS prosecutions has been the proper particularisation of charges. The debate in a nutshell, is this: how much information must a charge contain in order to comply with the Criminal Procedure Act? The issue really first arose with the High Court's seminal decision in Kirk v Industrial Relations Commission. The matter is now being squarely litigated before the Court of Appeal next month. How the Issue Arose For years, OHS charges in this State would particularise a contravention as being a failure to ensure - whether it was a failure to ensure that plant was maintained or a failure to ensure that systems were implemented and maintained etc. This was how the charge was prosecuted, and often without query. Examples of this style of charging can be found in the old cases such as Chugg v Pacific Dunlop (1990); Ancon Towers (1998) and Esso (2001); however, the many of the older Court judgments are replete with charges drafted in this manner. The charges therefore closely followed the legislation provisions. Of course this is similar to how traditional criminal charges are usually drafted. For example, in a charge of murder, it would be normal to expect a charge to read: X at Melbourne on 18 June 2015 murdered Y. 1

3 No more is required; there is usually no fuss and no argument about particulars. 1 So why should there be a requirement for particulars in OHS cases? In my view, there are three fundamental aspects that demand particulars: The contravention is charged as a breach of duty (akin to negligence) yet prosecuted to the high criminal standard. The contravention is proved as an exposure to risk to health and safety rather than as a specific causative act or omission. It is necessary to prove the negative and positive of there being a reasonably practicable means of maintaining the workplace in a safe manner. By contrast, traditional criminal charges in injury or homicide cases largely depend upon proof of a specific act or omission, and always require proof that the act or omission caused the injury or death. Kirk v Industrial Relations Commission The High case of Kirk arose through the NSW legislation. The NSW legislation in operation at the time differed in a fundamental way from the Victorian legislation. In Victoria, the prosecution must prove the duty holder's breach of duty, and that it was reasonably practicable to maintain the plant or systems etc. in an alternate way. In Victoria therfore, the duty is on the prosecution to prove reasonable practicability. In NSW, the legislation provided for the prosecution to prove the breach of duty and no more. It was for the defence to prove that it was not reasonably practicable to do more. The prosecutors in Kirk laid charges against Mr. Kirk and his company for a fatal quad bike accident on a farm run by the Kirk company. The charges against the 1 Of course, there are also disclosure requirements, and obligations to file Prosecution Opening Statements which provide the manner in which the case is put. 2

4 individual and the company pleaded no more than the words of the statutory provision.2 The High Court held that the charges were deficient. The charges did not say anything about what should have been done to avoid exposing workers to the risk from the use of the quad bike. Accordingly, the High Court held that Kirk and the company were deprived of knowing what measures they were required to prove were not reasonably practicable. 3 February 2010 therefore marked a change in the OHS landscape in relation to how charges are to be formulated. But the consequences of the decision and its impact on the Victorian legislation were debated for a little longer. Opinion was divided as to whether and how Kirk applied in this state. It took a little while to work out what Kirk meant in Victoria. Some thought Kirk could be confined to its facts and was peculiar to the NSW legislation. More importantly, it took a little while for prosecutors in Victoria to change the manner in which they particularise charges. But, the application of the essence of Kirk is universal. Here in Victoria, s.21 OHS Act requires proof of the breach of duty under s.21(1) and 21(2)(a) and (e). It can be seen from an examination of these provisions that reasonable practicability is an element of the charge. The Criminal Procedure Act in the Common Law There is of course another consideration. The Criminal Procedure Act provides what is required for a valid charge to be instituted. Section 6 and Schedule 1 of the CPA requires a charge to: state the offence charged; and to give reasonable information as to the nature of the charge. Further, the common law cases state that the particulars must contain: 2 See paras. Kirk [22] and [25]. 3

5 Essential legal elements, and Essential factual elements: The particular act, matter or thing alleged as the foundation of the charge. A recent judicial statement put the issue this way. If the charge and particulars are read as a whole in their context, do they bring home to a reasonable defendant the elements of the offence they face? In other words, can a reasonable defendant understand the allegation to be met? Baiada v R (High Court) In the meantime, there was another important case in the High Court though not directly relating to particulars. In the case of Baiada v R, the HCA looked at questions of: the relationship between the principal Baiada and contractor transporters, and the meaning of the critical element reasonably practicable. Importantly, the High Court distinguished between proving that a step was possible and one that is reasonably practicable. The two are not necessarily the same thing. As we will see, the issue of how to particularise what is reasonably practicable is under consideration before the Court of Appeal at the moment. The Current Litigation This takes us to the precise issue in the current litigation. In Glenister v Baiada Poultry (SCV 2014) Ginnane J. determined an appeal from a Magistrate's decision striking out charges brought against Baiada Poultry. The Magistrate had refused amendments proposed to the charges by the prosecutor. In the case before Ginnane J., the employee of a contractor was killed whilst cleaning the chicken processing line. 4

6 The issue was raised as to what constitutes an essential factual element which must therefore be particularised so the charge complies with the CPA. Practitioners are familiar with the operation of s.21(3). By that provision, the definition of employee may extend to contractors and to that contractor's employees. Significantly, Ginnane J. considered that a charge will be defective if it does not refer to or particularise that a principal owes the duties of an employer to a contractors employee, because that employee was employed by the contractor who in turn had been engaged by the principal, and the principal had control of the workplace or the part of the workplace alleged. As the charges brought by WorkSafe had not identified and particularised this aspect of the relationship, Ginnane J. determined that the first three charges under s.21 were defective. This however was not the end of the matter. The most significant aspect of Ginnane J.'s judgment springs from the principles of Kirk meeting the principle of Baiada on the question of particulars. There was a fourth charge, brought under s.26 (the management or control provision). Ginnane J. determined that this charge was not defective and so that aspect of the appeal before His Honour was upheld. The appeal now on foot stems from Ginnane J.'s decision to uphold the fourth charge. At the heart of this appeal is the question to what extent must reasonable practicability be particularised? A number of issues may be considered - Can the alternative system merely be identified and simply asserted to be reasonably practicable? What is sufficient identification of the alternate system? Must a prosecutor identify reasonable practicability by reference to the matters enumerated in s.20? These questions of precision and detail go to the very core of OHS prosecutions in this State. Very shortly, Victorian OHS practitioners will have yet another watershed decision to take into account in this complex and dynamic area of law. 5

7 Conclusion OHS law comes panoply of criminal law. It is not always a comfortable fit, but it is indeed here to stay. The case law in this aspect of OHS law required a vigilance to be exercised in the formulation of cases for the prosecution. Vigilance is required by prosecutors, for the onus is on them to get the charges right. There is however an equal vigilance required of defence practitioners who must ensure that the charges brought against their clients fairly disclose the case to be met so that informed decisions can be made as to how the case should proceed 6