Industrial Relations Commission New South Wales

• Medium Neutral Citation: Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54
• Hearing dates: 1 September 2010
• Decision date: 29 April 2011
• Jurisdiction: Industrial Court of NSW
• Before: Walton J, Vice-President, Kavanagh J, Haylen J, Backman J

Decision

1. The appeals are allowed and the whole of the judgment and orders of Boland J of 1 October 2009 and 7 December 2009 are set aside.

2. Both matters are remitted to another judge to determine according to law.

3. Costs are reserved.

• Catchwords: APPEAL - Occupational Health and Safety - worker injured while assisting a mobile crane driver to lift a steel plate - whether Applications for Order (charges) failed to plead the acts or omissions said to constitute a breach of the Occupational Health and Safety Act 2000 - whether charges failed to disclose offences - whether charges lacked precision and relevant measures were not fully identified - what constitutes a valid Application for Order considered - pre-requisites for jurisdiction considered - charges defective by reason of their failure to plead the acts and omissions relied upon by the respondent - role of accompanying affidavits and prosecution's opening considered as alternative sources by which particulars of alleged acts and omissions absent from the charges may be relied upon - HELD: charges valid but appellants denied procedural fairness by reason of the piecemeal manner during the course of the trial in which the appellants were supplied particulars of acts or omissions relied upon by the respondent - HELD: charges defective by reason of their failure to plead relevant acts and omissions - HELD: defective charges not cured by verdicts - HELD: trial judge fell into error when convicting the appellants on charges that failed to identify either expressly or by implication the corporation's relevant acts or omissions - appeals allowed and whole of judgment of trial judge set aside - form of appropriate relief considered - principles relevant to a re-trial considered - both matters ordered to be remitted to another judge to determine according to law - costs reserved
• Legislation Cited: Crimes Act 1900; Criminal Appeal Act 1912; Criminal Procedure Act 1986; Industrial Relations Act 1996; Industrial Relations Commission Rules; Occupational Health and Safety Act 1983; Occupational Health and Safety Act 2000; Supreme Court (Summary Jurisdiction) Act 1967
• Cases Cited: Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349; Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705; DPP v Esso Australia Pty Ltd [2001] VSC 103; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237; Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481; Frank Hakim and Another (1989) 41 A Crim R 372; Gilmour v EPA; Tableland Topdressing v EPA [2002] NSWCCA 399; (2002) 55 NSWLR 593; Gorman and McLaurin v Fitzpatrick and Barrett (1987) 32 A Crim R 330; Heymann v The Queen (1873) Law Rep 8 QB 102; Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32; Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189; Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163; Inspector Hayes v Santos and Lorenzo (No. 2) [2009] NSWIRComm 208; John Cahill v State of New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187; (2007) 165 IR 213; John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; King v The Queen (1986) 161 CLR 423; Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; Kristen Egan, John Hawkins and Alexander Burr v JG [2010] ACTSC 53; Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39; Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30; Oates v Consolidated Capital Services Ltd [2009] NSWCA 183; (2009) 76 NSWLR 69; (2009) 233 FLR 283; R v Alexanrides (2008) VSCA 126; R v Brendan Healey [2008] VSCA 132; R v Morris (NSWCCA, unreported, 25 November 1996); R v Taufahema [2007] HCA 11; (2007) 228 CLR 232; Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) NSWIRComm 151; (2000) 100 IR 156; Robert Jildo Saga v Jarrod Reid and Tristan Allan Collett [2010] ACTSC 59; Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128; (2007) 165 IR 7; S v The Queen (1989) 168 CLR 266; Saffron v The Queen (1988) 17 NSWLR 395; (1988) 36 A Crim R 262; ST v Regina [2010] NSWCCA 5; Spies v The Queen (2000) 201 CLR 603; Stanton v Abernathy (1990) 19 NSWLR 656; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141; Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48; The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57; The Queen v Aspinall (1876) 2 QBD 48; The Queen v Emmanuel Alexandridis [2008] VSCA 132; The Queen v Brendan Healey [2008] VSCA 132; (2008) 186 A Crim R 433; Tsougranis v Inspector Carmody [2004] NSWIRComm 269; (2004) 135 IR 356
• Category: Principal judgment
• Parties: Jaime Lorenzo (Appellant); Jose Luis Santos (Appellant); Inspector Peter Hayes (Respondent)
• Representation: Mr J Phillips SC with Mr M Moir of counsel (Appellants); Mr S Crawshaw SC with Mr D Chin of counsel (Respondent); KP O'Donnell & Associates (Appellants); WorkCover Authority of New South Wales (Respondent)
• File Number(s): IRC 2064 of 2009; IRC 2065 of 2009

Decision under appeal

• Citation: Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163; Inspector Hayes v Santos and Lorenzo (No. 2) [2009] NSWIRComm 208
• Before: Justice Boland, President
• File Number(s): IRC 654 of 2009; IRC 656 of 2009

Judgment

1 This matter concerns applications for leave to appeal and appeal from two judgments of Boland J, President, who convicted and sentenced the appellants for offences under s 8(1) by virtue of s 26(1) of the Occupational Health and Safety Act 2000 ('the 2000 Act'): Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163; Inspector Hayes v Santos and Lorenzo (No. 2) [2009] NSWIRComm 208.

2 Following the High Court judgment in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 (' Kirk' ), the appellants, who are directors of S&L Steel (NSW) Pty Limited ('S&L Steel'), amended their grounds of appeal in order to rely on issues considered in Kirk relating to the proper construction of s 15(1) of the Occupational Health and Safety Act 1983 (now s 8(1) of the 2000 Act) and the requirement to identify in the applications for order ('the charges') the acts or omissions of the employer said to constitute contraventions of the Act.

3 These issues have been considered at length in a number of judgments following the Kirk judgment, most notably in this jurisdiction, Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 (' John Holland' ); and, Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 (' Chevalley' ). Further, following the hearing of this appeal, the Court of Appeal handed down judgment in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 (' John Holland (Court of Appeal)'). A number of issues raised by the parties in the Court of Appeal were also raised in these proceedings and were the subject of further submissions which we have taken into account. Since that time the High Court has refused Special Leave to appeal the decision of the Court of Appeal. .

4 Before these matters are addressed, it is necessary to provide some background to the prosecutions.

Background to prosecutions

5 The appellants were charged pursuant to s 8(1) and s 26(1) of the 2000 Act because each held the office of director of that corporation. Proceedings commenced against S&L Steel were subsequently withdrawn following its winding up in 2007.

6 At the time of the offences, S&L Steel conducted a business of fabricating structural steel. On 20 May 2006, James Hair (who was employed by S&L Steel as a trades assistant/labourer) was injured when he was assisting a mobile crane driver in the lifting of a steel plate. As the plate was lifted by the crane, hooks used to lift the plate slipped and caused the steel plate to fall on Mr Hair.

7 The appellants were both charged with offences in the same terms in relation to the incident concerning Mr Hair. It was alleged in the charges that S&L Steel, being an employer, on 20 May 2006 had "failed to ensure the health, safety and welfare at work of its employees, in particular, James Hair". The "particulars" of each charge allege that S&L Steel failed to:

(a) ensure compliance with, or adequately enforce, a system of work for lifting and moving steel plates prior to and on 20 May 2006 that was safe and without risks to the health and safety of its employees;

(b) conduct any, or any adequate, risk assessment as was necessary to ensure the health, safety and welfare of its employees whilst lifting and moving steel plates;

(c) provide any, or any adequate, information to its employees, and in particular Mr Hair, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates;

(d) provide any, or any adequate, instructions and training to its employees, and in particular Mr Hair, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates;

(e) provide any, or adequate, supervision to its employees, and in particular Mr Hair and Mr Alvarez, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates.

8 Each charge also alleged that, "[A]s a result of the said failures, Mr James Hair was placed at risk to his health and safety and was injured".

9 The trial judge found that particular (b) had not been established beyond reasonable doubt. The other particulars, his Honour found, had been established beyond reasonable doubt and, accordingly, S&L Steel had contravened s 8(1) of the 2000 Act. The appellants relied on one defence under s 26(1), namely, the "due diligence" defence provided under s 26(1)(b). His Honour found that each appellant had not made out the defence and found each offence proven with respect to the failures particularised in paragraphs (a), (c), (d) and (e) of the charges. The appellants were convicted of the offences and each fined $12,000.

Appellants' submissions

10 The appellants approached the appeal by focussing on what were said to be similarities between the present charges and the charge in Kirk . It was sought to be emphasised by the appellants that Kirk , and the cases following Kirk , focus attention on the charge, that is, the contents of a charge brought under s 8(1) necessary to enable a defendant to know precisely the allegation made against him or her in order to decide whether to plead guilty or to contest the matter, and in order to make a proper determination as to what evidence is relevant and what is objectionable, during the course of the trial. The requirement to focus on the charge would preclude reliance, it was said, on other sources of information such as the affidavit accompanying the charge, the prosecution's brief of evidence and submissions.

11 The appellants' complaint with regard to the charges was that they failed to plead the acts or omissions said to constitute a breach of the 2000 Act. As a consequence S&L Steel could not have enlisted the statutory defences available to it under s 28 of the Act. Because of the way the charges had been pleaded, no conviction could be recorded against S&L Steel and the appellants could not have been properly convicted. The appellants' convictions were said to be "nullities" because of the failure in both charges to identify any acts or omissions. Later, during oral hearing, the appellants contended that the charges did not disclose an offence and were therefore nullities. It was also contended, during oral hearing, that both charges failed to plead a requisite legal element of the offence, that legal element being the act or omission constituting the offence.

12 It was contended by the appellants that because of the lack of precision and certainty in the particularisation of the offences in the charges the appellants were convicted of matters which were outside the scope of the particulars. It was submitted that because of the generality of wording and impression in the charges, the respondent had advanced, in closing submissions, a case that was significantly wider than the case advanced in the opening submissions. A result of this was that the measures upon which ultimate reliance was placed by the respondent were not identified until the closing submissions. The findings made by Boland J, therefore, did not reflect the subject matter of the charges. In the absence of particularisation of the relevant acts or omissions in the charges, the Court below was placed in a position where it would act as "an administrative commission of inquiry rather than undertake a judicial function": Kirk at [30] citing Evatt J in Johnson v Miller (1937) 59 CLR 467 at 495.

Respondent's submissions

13 The respondent sought to distinguish the present charges and the course of the proceedings below from the circumstances which arose for consideration in Kirk . The appellants' submissions, according to the respondent, should be rejected because they are contrary to the true effect of a number of authorities including Kirk ; Doja v R [2009] NSWCCA 303 198 A. Crim. R 349; Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 and, the Full Bench judgment in John Holland .

14 According to the respondent, the charges identify the legal nature of the offences (that is, the legal elements) and expressly state the essential factual ingredients of time and place. The essential factual ingredient of manner is also identified, although it was conceded, only in a general way, by identifying the failures nominated in particulars (a), (c), (d) and (e) of the charges.

15 The respondent advanced two propositions in support of the submission that the charges were not comparable to the charge in Kirk . First, if the affidavits accompanying the charges are taken into account then the charges can be said to identify the measures that it is alleged were not taken by the appellants. Secondly, because the charges clearly identify the nature of the offences, any failure to sufficiently identify the measures in the charges should be treated as an irregularity which does not nullify the proceedings. Kirk , it was said, was not inconsistent with this second proposition. This was because Kirk did not hold that the charge was a nullity: Kirk at [30]. Instead, the majority in Kirk found that there was no proper identification of the measures to be taken by the defendant at any stage of the trial up to and including the passing of sentence: Kirk at [74].

16 The respondent also placed reliance on the opening address in the Court below as providing information of the measures which should have been taken by the appellants, subject to the requirements of procedural fairness. This information was capable of remedying any inadequacy of identification of those measures in the charges. The charges were also, in the event of any perceived inadequacy of identification of the measures, capable of remedy by way of amendment. Moreover, it was contended that the appellants' convictions should stand if there was at least one measure that was sufficiently identified in the charges: Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 and 485 as applied in The Crown in Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [93].

17 In the alternative, the respondent contended that the appellants were not under any misapprehension as to the measures which should have been taken as identified by the prosecution and found by the trial judge. Because the charges could have been amended during the trial, to the extent that they were inadequate, the defects were cured by the convictions.

18 The method proposed by the respondent in order to reveal how the relevant measures (that should have been taken) had been identified in the course of the proceedings below, was to identify those measures found by the trial judge as set out in the judgment and then to "work back" in order to see if, and how, the measures were identified by the respondent prior to, and in the course of the proceedings.

19 In this regard, the respondent relied on five measures found by the trial judge which, it was said, had been identified by the respondent either prior to or in the course of the proceedings. These measures were:

(1) S&L Steel failed to comply with or adequately enforce the prohibition on the use of open hooks when lifting and moving steel plates provided for in its lifting policy ('the Lifting Policy');

(2) S&L Steel should have but did not ensure that sufficient and suitable clamps were available on the crane for lifting and moving steel plates on 20 May 2006;

(3) S&L Steel should have but did not ensure that Mr Hair had received the training and instruction required to hold a certificate of competency in dogging work ("dogging certificate") for the work of lifting and moving steel plates;

(4) S&L Steel should have but did not provide information, instruction and training about the prohibition on the use of open hooks in the Lifting Policy when lifting and moving steel plates;

(5) S&L Steel failed to ensure that the task of lifting and moving the steel plate on 20 May 2006 was supervised by a qualified dogman or a person holding a certificate of competence in dogging work.

20 The first two measures were measures found by Boland J which should have been taken by S&L Steel (but were not) with respect to the system of work allegation in the charge (particular (a)).

21 The first measure, it was conceded, was not identified in the charge. It was, however, said to be identified, by implication, in combination with particular (a) of the charges and the accompanying affidavits, notably in the following paragraphs of those affidavits:

[11] Mr Alvarez (the crane driver) positioned the crane boom over the sheets of steel plate. Mr Hair then attached open hooks directly under the first sheet of steel plate where he believed the centre of the steel plate to be.

[18] Prior to 20 May 2008, the practice adopted by some employees of S&L from time to time was to use open hooks to lift steel plates without the use of clamps or grabs.

[20] Prior to the incident S&L had an internal safety instructions register, and in particular Safety Instruction 17.1 titled "Lifting and Securing" and dated July 2005 which contained lifting guidelines and statement that clamps must be used at all times for the lifting of plates. It also contained a warning that at no time were open hooks to be used for lifting plates unless there were correctly made and attached lifting points. There is no documented evidence of any training being provided to Mr Hair or Mr Alvarez in respect of Safety Instruction 17.1. Mr Hair stated that he had not seen the Safety Instruction document.

22 In addition, the respondent contended that the prosecution's opening address in the Court below expressly identified the failure of S&L Steel to ensure compliance with or inadequately enforce the prohibition on using open hooks in the Lifting Policy. Furthermore, the appellants were undoubtedly aware and, therefore, able to defend themselves against the "allegation" in the terms set out in the first measure found by Boland J. This was apparent, from the appellants' conduct during the trial as illustrated by the evidence led by them which actively challenged the "allegation" as well as the content and approach taken by the appellants in their opening and closing submissions.

23 The second measure, the respondent conceded, was not identified in the charges, or in the accompanying affidavits or in the prosecution's opening. Nevertheless, the respondent said, the appellants were aware of and able to defend themselves against the "allegation" as, again, illustrated by their conduct during the trial, including the evidence led by them which actively challenged the allegation, and their opening and closing submissions which advanced the contrary proposition that S&L Steel did provide sufficient plate clamps to both Mr Hair and Mr Alvarez.

24 The third measure was said to apply equally to particulars (c) and (d) of the charges (alleged failures to provide necessary information, instructions and training). It was also conceded that this third measure was not identified in the charges but was said to be clearly implied in combination with particulars (c) and (d) and the accompanying affidavits at paragraph 23. That paragraph provides:

Mr Hair, at least from time to time, performed the duties of a dogman without the requisite training and qualifications to conduct such duties.

25 The third measure was also said to have been identified in the prosecution's opening and, in addition, reliance was placed on the appellants' "awareness" of this third measure as relevant for the same reasons advanced earlier by the respondent in relation to the first and second measures.

26 The fourth measure was also said by the respondent to apply equally to particulars (c) and (d) of the charges. It was contended that particulars (c) and (d) in combination with the material contained in the accompanying affidavits clearly implied the existence of the fourth measure, namely, that S&L Steel should have, but did not, provide information, instructions and training about the prohibition on the use of open hooks in the Lifting Policy. Paragraph 20 of the affidavits (set out above) was relied upon by the respondent in support of this contention.

27 It was not suggested that the fourth measure had been identified in the prosecution's opening. It was, however, contended that the appellants were aware of the allegation with respect to the fourth measure, as illustrated by their conduct during the course of the trial, which disclosed that the measure had been sufficiently identified to them to enable them to elicit evidence in support of the submission that the respondent had failed to prove the allegation.

28 It was conceded that the fifth measure was not identified in the charges, or in the accompanying affidavits or the prosecution's opening. Instead, the respondent relied on what was said to be the appellants' appreciation of what was alleged against them because they actively contended during the trial that the lifting activity was not complex and did not require any of the participants to hold a dogging certificate.

29 With respect to all five measures, the allegations set out in particulars (a), (c), (d) and (e) of the charges had been sufficiently identified prior to Boland J's judgment in order to enable the appellants to adduce evidence in support of the submission that the respondent had failed to prove the allegations.

Kirk as applied by John Holland and Morrison v Chevalley

30 The majority judgment in Kirk was the subject of recent analysis in this Court in John Holland, Chevalley, and the John Holland (Court of Appeal) . The analysis of Kirk in those judgments also involved a consideration of the extensive body of law dealing with the requirements for a valid charge. A number of propositions relevant to the issues in the present proceedings may be distilled from those judgments. These propositions are summarised below.

31 The term, Statement of Offence (or "Statement of the offence"), which was adopted in Kirk to describe the applications for order under s 15(1) and s 16(1) of the 1983 Act was accepted by the Full Bench (by reference to several passages in Kirk ) as constituting the charge (a description of the legal nature of the offence, that is, the legal elements), the particulars (that is, the essential factual ingredients of time, place and manner) and the consequences (that is, the exposure to risk by reason of a defendant's acts or omissions): Chevalley at [41]. This construction was also consistent with findings in John Holland (Court of Appeal) at [55] and [56] in which Spigelman CJ (with whom Beazley and Giles JJA agreed) said:

Counsel for John Holland submitted that the Court should focus only on the statement of the charge on the first page of each Application for Order. John Holland, but not Parsons Brinckerhoff, submitted that the balance of each Application, which provides particulars of the charge, is not the statement of the offence for the purpose of applying the reasoning of the High Court in Kirk.

This is too narrow an interpretation of that reasoning. Indeed, it is inconsistent with the reasoning in Kirk which, as I have set out above, analysed the particulars provided, as well as the charge. An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked.

32 Kirk did not determine that the acts or omissions of a defendant alleged to cause the risk to safety were legal elements of an offence: John Holland at [67]; Chevalley at [55(f)].

33 It was held by the majority in Kirk that charges under ss 15(1) and 16(1) of the 1983 Act had to plead the acts or omissions of a defendant that created the risk to safety: John Holland at [70] (both legal elements and essential factual particulars are required to be pleaded); Chevalley at [103]. On this issue, Spigelman CJ in John Holland (Court of Appeal) (at [32]) extracted two propositions from the majority judgment in Kirk , necessary to establish a contravention of the provisions:

"A statement of an offence must identify the act or omission said to constitute a contravention" - see [14], [15], [27], [37], [38], [74]; and

The "relevant act or omission which gives rise to the offence" is "a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating" - see [12], [14], [19], [28], [38].

34 A rationale for the requirement that the acts or omissions be pleaded in a charge is to ensure that a defendant knows what specific acts or omissions are alleged against it in order that it may raise a defence: Chevalley at [104].

35 An Application for Order must comply with rule 217B of the Industrial Relations Commission Rules 1996 ('the 1996 Rules') (now rule 16.1 of the Industrial Relations Commission Rules 2009 ('the 2009 Rules')). An Application for Order (for example, under s 8(1) of the 2000 Act) must therefore include the nature of the offence alleged (the legal elements): Johnson v Miller (1937) 59 CLR 476 at 486 per Dixon J; Rockdale Beef at [105]; John Holland at [37].

36 Section 11 of the Criminal Procedure Act 1986 ('the CPA ' ) allows for the description of an offence to be made in the words of an Act creating the offence. Thus, if a charge brought under s 8(1) of the 2000 Act describes an offence in the words of that provision then the charge has met the requirement of identifying the legal nature of the offence, subject to the proviso that in adopting the words of the statute it admits of no uncertainty or ambiguity (per Rockdale Beef at [131]). A charge that meets the requirement of s 11 of the CPA does not dispense with the common law rule requiring identification in the charge of the essential factual ingredients of time, place and the manner of the defendant's acts or omissions: John Holland at [38].

37 If the acts or omissions are not pleaded in a particular place or in a particular form in a charge, this does not amount to a fundamental defect such that the charge should be regarded as a nullity: John Holland at [72]; Chevalley at [55(i)]; [56(b) to (d)].

38 The failure to plead essential factual ingredients (time, place and manner of defendant's acts or omissions) will not amount to a fundamental defect rendering the charge invalid: John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 (' John L' ) at 521-522; Stanton v Abernathy (1990) 19 NSWLR 656 at 667; see also Full Bench in John Holland at [72] to [74] and Chevalley at [55(i)], [56(b) to (d)] [133] (deficiency due to failure to identify in some way the acts or omissions is unobjectionable (s 16(2) CPA) or would be regarded as an irregularity (s 170 of the Industrial Relations Act 1996 ('the IR Act')).

The charges

39 Section 8(1) of the 2000 Act provides that an employer must ensure the health, safety and welfare at work of all the employees of the employer. The charges allege that S&L Steel, a corporation, being an employer, on 20 May 2006 failed to ensure the health, safety and welfare at work of its employees, in particular, James Hair. The charges therefore comply with the requirements of s 11 of the CPA in that they describe the offences in the words of s 8(1), or in similar words, and are therefore "sufficient in law", that is, they state in unambiguous terms, the legal nature of the offence (the legal elements): see also Stanton v Abernathy at 665A-B.

40 The charges also allege two essential factual ingredients, that is, the date of the offence (20 May 2006) and the place in which the offences were alleged to have occurred (59 Glenndenning Road, Rooty Hill, New South Wales). They also state the consequences of the alleged failures, namely, that "as a result of the said failures, Mr James Hair was placed at risk to his health and safety and was injured".

41 The charges fail, however, to allege the third essential factual ingredient, namely, the manner of the alleged omissions of S&L Steel (said to have given rise to the risk). Those omissions have been earlier set out. They constitute the five measures found by the trial judge which should have been taken by S&L Steel but were not. By way of example, particular (a) of the charges alleges that S&L Steel failed to ensure compliance with, or adequately enforce, a system of work for lifting and moving steel plates prior to 20 May 2006 that was safe and without risks to the health and safety of its employees. There is no further particularisation in the charges of how this failure resulted in an unsafe system of work (unsafe in that Mr Hair was exposed to risk). S&L Steel's omission, by reference to particular (a), is revealed in the reasons of the trial judge, who in fact found two omissions, namely, the failure to comply with or enforce the prohibition on the use of open hooks when lifting and moving the plates as provided in the lifting policy, and the failure to ensure that sufficient and suitable clamps were available on the crane for lifting and moving the plates.

42 The risk to health and safety was pleaded in both charges as a risk to the health and safety of Mr Hair who was injured. It was identified with more precision during the course of the proceedings. In the judgment on liability, Boland J characterised it as a risk arising from the use of open hooks to lift the steel plate (which could lead to the steel plate falling and injuring Mr Hair). It is not necessary, however, to further consider this issue. Identification of the risk in the charge was not a ground of appeal relied upon by the appellants in these proceedings. The primary focus of the appellants' submission was that the charges were invalid because of their failure to identify the relevant acts or omissions with the attendant consequence that they were not able to enlist the statutory defences under s 28 of the OHS Act 2000.

43 Applying the propositions distilled from John Holland and Chevalley , it may be concluded that the failure to identify or specify the omissions of S&L Steel constitutes a defect in the charges which is nevertheless capable of remedy by utilising either s 16(2) CPA or s 170 of the IR Act (see also Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [20-27] per Sperling J; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 37 at [11]-[21] per Ipp A-JA; Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32). The respondent, although conceding the absence of identification of the relevant omissions in the charges, submitted that the defect did not require remedy because the relevant omissions were adequately or sufficiently identified either in the accompanying affidavits or in the prosecution's opening in the proceedings below, or both; and, where there was a complete absence of identification of the omissions in any of the material, that the convictions nevertheless operated to cure the defect.

The accompanying affidavits

44 Rule 217B(3), of the Industrial Relations Commission Rules in force at the time of the commencement of the proceedings, provided that, "the Commission may require the prosecutor to file, in support of the application for an order filed under sub-rule (1) ... an affidavit verifying the allegation made in the application". In Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 at [28], the Court (Wright J, President, Walton J, Vice-President, Hungerford J) held that proceedings were validly commenced in accordance with a predecessor rule (rule 219 of the 1996 Rules) by the filing of an application for summons (now Application for Order). Under the predecessor rule, it was mandatory for the summons to be accompanied by an affidavit verifying the allegations in the summons. Under rule 217B, in force at the time of the proceedings, it was no longer mandatory for an Application for Order to be accompanied by an affidavit. Nothing turns on this distinction for present purposes. It would seem to us, however, that any submission that the accompanying affidavit forms part of, or is incorporated into, the pleadings, such that the requirement for identification of relevant omissions in the charge has been met, would be incorrect. The accompanying affidavit is not a document which is required under the rules to commence the proceedings. Its function is to verify the allegations in the charge. It does not follow from that function that the affidavit may provide, or be relied upon to provide, necessary or essential particulars of the acts or omissions of a defendant when they are otherwise absent either expressly or by implication from the charge. The affidavit may be relevant, however, to the issue of procedural fairness and what was actually disclosed to the defendants as to their alleged acts or omissions.

45 In Rockdale Beef, Basten JA made a number of observations with regard to the use which may be made of the accompanying affidavit as a source of further particulars of a charge. The defendant, Rockdale Beef, had been charged with an offence under s 10(2) of the 2000 Act. An issue before the Court of Appeal was whether the charge had failed to plead a legal element of the offence, namely, that plant (a drag chain conveyor) was controlled by Rockdale Beef, "in the course of a trade, business or other undertaking" (s 10(3)(d)).

46 According to Basten JA, the control of the relevant plant in, "the course of a trade, business or other undertaking" was a legal element of an offence under s 10(2) of the 2000 Act. The fact that the charge alleged that the plant was "used by people at work", and asserted that the plant was in the control of the defendant meant, however, that the complaint that the charge had failed to plead a critical element had little substance. This was because the allegation that a person had control of plant identified as a drag chain conveyor used by people at work was not advanced by saying that the plant was controlled in the course of a business: at [131]; (see also Doja at [27], [28] per Spigelman CJ (the parts of the charge could be understood as referable to the omitted element).

47 Basten JA also considered whether it was necessary to expressly refer to the "relevant business" in the charge. His Honour took the view that it was not, because there was material in the accompanying affidavit upon which, he said, the prosecution could rely (which explained that the drag chain conveyor was in the "boning room" and the boning room was "at the abattoir owned by Rockdale Beef"). This material provided a sufficient description of the relevant business. His Honour doubted that any further particulars would be required but added that if there were a difficulty, amendment of the pleading would have been available.

48 Basten JA considered that recourse to the accompanying affidavit was a permissible source, outside of the pleadings, of particularisation of a legal element (whether plant was controlled, "in the course of a business") otherwise absent from the charge. His Honour's remarks, however, need to be understood in the context of other findings made in the judgment. Those findings were to the effect that, notwithstanding the absence in the pleadings of a legal element, it was nevertheless inferred, or implied, because the charge stated that the plant, "was used by people at work", and it asserted that the plant was in the control of the defendant. The complaint, therefore, did not involve a fundamental issue going to the fairness of the prosecution but was better described as a complaint "at the level of technical validity". No such construction of the charges is available in the present proceedings. The respondent frankly (and correctly) conceded the absence of essential factual ingredients which were required to be pleaded in the charges.

49 The accompanying affidavits in these proceedings contain information which identifies some of the omissions of the appellants ultimately described by the trial judge in the judgment on liability (the five measures). To this extent, the present charges fall into a different category from the Kirk charges in relation to which the High Court found that no acts or omissions had been identified, "at any point in the proceedings up to and including the passing of sentence, as constituting the offences ...": Kirk at [74] (it is unclear whether the High Court had before it the affidavit in support of the Application for Order in that matter although it was referred to during oral hearing).

50 The present affidavits do not refer to, or otherwise identify, the relevant omissions of the appellants with respect to particular (a) in the charges (the second measure found by Boland J) and particular (e) (the fifth measure found by Boland J). According to the respondent, the affidavits otherwise adequately identify, by implication, the relevant omissions of the appellants with respect to particulars (a) (the first measure), (c) and (d) (the third and fourth measures).

51 The information contained in the accompanying affidavits, relied upon by the respondents, has been earlier set out. Apart from issues of procedural fairness, any reliance on the information by the respondent as a source of identification of the relevant omissions is inconsistent with the requirement that essential factual particulars are to be pleaded in a charge. Nevertheless, as we have earlier observed, the affidavits provide particularisation of some of S&L Steel's alleged omissions. With regard to particular (a), for example, the affidavits at paragraphs 11, 18 and 20 inform the appellants of the following matters which are consistent with the first measure found by Boland J:

(a) Mr Hair attached open hooks directly under the first sheet of steel plate in accordance with a practice adopted by employees of S&L Steel prior to the accident; and

(b) prior to the accident S&L Steel had a policy in writing directing that clamps be used at all times when lifting steel plates and that at no time were open hooks to be used for the task unless there were "correctly made and attached lifting points".

52 In addition, at the bottom of each charge appears the following notation:

My affidavit dated 16 May 2008 verifying and providing further particulars of the allegations in the application is attached.

53 The notation invites the appellants in a general way to refer to the accompanying affidavits for further particulars of the allegations. Merely directing the appellants' attention to the affidavits, however, without informing them of which aspects of the allegations are the subject of particulars or where the particulars may be found would not ordinarily constitute adequate particulars. We do not consider they have been adequate in the present case. Where procedural fairness is an issue raised by the defendants, an affidavit that adopts this language, nevertheless, requires the prosecutor to proffer such measures that are identified as further and better particulars or, alternatively, to rely upon those matters in order to make a formal application to amend the Application for Order.

The opening

54 These observations apply with equal force to particulars which may be provided by the prosecution in its opening address. Identifying the essential factual ingredients of a charge for the first time in an opening infringes the requirement that essential elements are to be identified in the pleadings (that is, in the charge: Kirk at [14]). Non-essential particulars may be provided where they have not earlier been sought. That is because non-essential particulars are not required to be pleaded in a charge. They may be supplied outside of the pleadings in order to clarify matters in the pleadings so that, for example, a defendant can propound a defence: Lodhi v The Queen (2006) 199 FLR 303 at [104]. Where particulars, or inadequate particulars, of this latter type have not been supplied, the Court has an inherent jurisdiction to order them: see for example Saffron v The Queen (1988) 17 NSWLR 395 at 447; 36 A Crim R 262 at 313 per Hunt AJA.

55 Similar observations apply with respect to the respondent's submission that the appellants were aware of the omissions by reason of their conduct during the course of the trial. Awareness on the part of a defendant of critical elements which may emerge during the course of a trial cannot be a substitute for the absence in the charge of those critical elements. A defendant must be notified of the relevant omissions to be relied upon by the prosecution by reference to the charge, not by recourse to the evidence which reveals the prosecution case without the degree of certainty or precision required to be present in a charge.

Consequences of failure to plead essential factual ingredients

56 While there was a proper charge before the Court, the acts and omissions of the appellants and the measures they should have taken arose in greater detail during the hearing and were admitted without objection. It is unclear how his Honour treated these matters having regard to the way in which the Court received them in evidence: it does appear, however, that his Honour made findings that were not based upon the more limited and indefinite allegations contained in the charges. The difficulty that arises from that approach is that, as acts and omissions were specified and measures identified on an ongoing basis throughout the trial, the appellants were placed at a significant disadvantage and one to which they were entitled to object. That approach did not give the appellants a full opportunity to consider their defences by reference to the measures that were being identified during the running of the case and the further specification of acts or omissions for which they were said to be responsible. The unfairness of that process alone requires intervention on appeal.

57 The need for the provision of appropriate particulars has its roots in the requirements of procedural fairness and the need for the defendant to be fairly informed of charges it has to meet. Further, the structure of the Act requires that the defendants know what measures it is alleged that they did not take so that they could properly address available defences. In Oates v Consolidated Capital Services Ltd (2009) 233 FLR 283, the Court of Appeal at [176] observed that particulars supplied may not be decisive if evidence is allowed to be brought beyond them - if fresh matters are raised during the proceedings then there should be an amendment. While Oates was a civil case, the issue of particulars is, at least, one of procedural fairness. Similarly, the approach in Stead v State Government Insurance Commission (1986) 161 CLR 141 ('Stead'), whilst arising in civil proceedings, has been applied in criminal proceedings (see Saga v Jarrod Reid and anor , Supreme Court ACT, per Refshauge J [2010] ACTSC 59 at [124]; Egan v J. G. [2010] ACTSC 53 and R v Brendan Healey [2008] VSCA 132 and R v Alexanrides (2008) VSCA 126). These cases have applied the procedural fairness aspects of Stead to criminal proceedings.

58 In short, Stead is authority for the proposition that not every departure from the rules of procedural fairness at a trial will entitle the aggrieved party to a new trial.

59 The case stands for the following principles that are relevant to these proceedings:

(a) everyone is entitled to a trial at which a defence can be put properly before the judge;

(b) that general principle is subject to one important qualification - an appellate court will not order a new trial if it would inevitably result in making the same order as made in the first trial by the primary judge;

(c) all the appellant needs to show is that the denial of procedural fairness deprived him of the "possibility" of a successful outcome. To negative that possibility it is necessary to show that a properly conducted trial could not possibly have produced a different result.

60 The judgment in Stead was drawn to the attention of the parties during argument in the current proceedings but was not addressed by them with any attention to the detail of the case. In this matter, little attention was directed to the likely outcome of a further trial. Despite these deficiencies, and doing the best that we can with the facts before the Court, the denial of procedural fairness fundamentally affected the defendant's right to consider how the evolving particulars could be met by s 28 defences.

61 In the present proceedings, the appellants contended that the failure to plead the acts and omissions (whether they be legal elements or essential factual ingredients) in the charges, together with the failure to provide the necessary particulars at any stage of the trial, renders the charges null or invalid, with the attendant consequences that the convictions are bad and should be quashed.

62 Basten JA in Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 identified a further distinction between essential elements which are required to be pleaded in a charge and non-essential particulars which are not, but which a court in its discretion can require the prosecution to supply. Basten JA (with whom Allsop P and MacFarlan JA agreed) in commenting on the different roles of non-essential particulars and the legal elements of an offence in the context of an issue raising the validity of the charges said (at [53]):

If the pleadings were deficient in failing to identify an essential element of either offence, it may not matter whether the issue was raised by a challenge by way of demurrer before the trial, or in the course of the trial, or not at all in the trial court. A conviction based on a charge not revealing an offence against the law will be invalid. However, if the complaint is in truth one of a failure to provide particulars, which were not sought at or during the trial in the Local Court or on appeal, a different analysis is required and invalidity will not usually result. In the present case, the complaint is no more than a failure to provide particulars which were not sought but may (though not inevitably) have been ordered if sought. The challenge to the validity of the proceedings and the resulting conviction on this ground is rejected.

63 Kirk did not decide that the acts or omissions of the corporate defendant, causing the risk, were legal elements of the offence: Chevalley at [56(b)]; Taylor v EPA; McConnell Dowell v EPA and Childs v Serena . The Full Court in John Holland held that the acts or omissions of the corporate defendant were not legal elements (at [67]), but added that it mattered not whether those acts or omissions were to be properly characterised as legal elements or essential factual ingredients since both were required to be pleaded in a charge: Chevalley at [73].

64 The distinction, however, has relevance to the issue as to whether the failure to state essential elements in a charge is curable and, if so, the relevant statutory provisions which may be available to cure the defect. If the relevant acts or omissions may be characterised, as we have done, as essential factual ingredients, this has the consequence that the charges although defective are capable of amendment under s 170 of the IR Act: John Holland at [72] to [74], citing with approval John L at 521-522 and Stanton v Abernathy at 667. However, neither s 16(2) of the CPA or s 170 of the IR Act will obviate the need to observe procedural fairness or cure any failure in that respect: Stanton v Abernathy at 667, 669 to 671; DPP v Esso Australia Pty Ltd [2001] VSC 103 at [24] and [25].

65 The Full Court in John Holland noted that Kirk did not refer to Rockdale Beef . The majority in Kirk (at [30]) found it unnecessary, however, to consider the effect of s 6 of the Supreme Court (Summary Jurisdiction) Act 1967 (a provision in similar terms to s 16(2) CPA), no application having been made to quash the Orders made under s 4(1) of that Act. Accordingly, the Full Court in John Holland took the view that it was bound by the majority judgment in Rockdale Beef : John Holland at [40].

66 In Rockdale Beef , Basten JA dealt with the requirements for the commencement of proceedings, seen to have two distinct purposes, each purpose having different consequences:

The requirements with respect to the commencement of proceedings may be seen to have two purposes: the first is to engage the jurisdiction of the Court to hear and determine the case; the second is to ensure procedural fairness to the defendant, by providing the defendant with sufficient information to allow it to defend the charge. The distinction is one of some importance. If insufficient has been done to engage the jurisdiction of the Court within any period of time limited for the institution of proceedings for an offence, then the proceedings may be a nullity. On the other hand, if properly commenced, questions of procedural fairness may be addressed once the defendant has been served with relevant process and had an opportunity to seek such particulars as it may require. The distinction may be identified by reference, on the one hand, to "the nature of the offence" and on the other to "the necessity of specifying the time, place and manner of the defendant's acts or omissions": see Johnson v Miller (1937) 59 CLR 467 at 486 (Dixon J), referring to the Justices Act 1921-1936 (SA), s 55 (see Johnson v Miller 59 CLR at 468-469 - footnote) which had its equivalent in s 11 of the Criminal Procedure Act . In the present case, the statutory requirements which form a precondition to the exercise of jurisdiction to hear and determine a case, pursuant to s 248 [sic] of the Criminal Procedure Act , require only, relevantly for present purposes, a statement of "the nature of the offence".

67 In this jurisdiction, the Application for Order must comply with rule 16.1 of the 2009 Rules: John Holland at [36(h)]. Rule 217B, which was the applicable rule in force at the time these proceedings were instituted, required relevantly that:

(1) Proceedings before the Commission in Court Session for an offence (other than contempt) must, unless otherwise provided, be commenced by an application for an order under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996).

(2) The application must state:

(a) the name and address of the person by whom the proceedings are brought (the prosecutor), and

(b) the capacity in which the prosecutor is taking the proceedings, and

(c) the name and address of the person against whom the proceedings are brought (the defendant), and

(d) the Act and the section under which the defendant is alleged to have committed an offence, and

(e) the nature of the offence that is alleged.

68 Section 4(1) of the Summary Jurisdiction Act has been replaced by s 246 of the CPA. Section 246 requires that an "application" (that is, a charge), "must be in accordance with the rules". There was no issue during the proceedings that the respondent had complied with the requirements under rule 217B(2)(a), (b), (c) and (d). We have found, for reasons earlier stated, that the charges also allege the nature of the offences. The requirements of the rule have, therefore, been satisfied and the pre-conditions to the exercise of jurisdiction have been met. The defective charges, by reason of their failure to state the essential factual ingredients, therefore, fall to be decided on a different basis. The defects in the charges could have been remedied, but were not, by recourse to relevant statutory provisions, such as, ss 170(1) and (2) of the IR Act, which, together with s 168(3) of the IR Act, provide for amendments to the proceedings which may be considered necessary "in the interests of justice".

Whether defects cured by verdicts

69 An alternative submission advanced by the respondent in the event this Court found that the charges failed to identify the relevant acts or omissions of the appellants was that the defect in the charges may be cured by the verdicts (the convictions) in the proceedings at first instance and, therefore, the convictions may be sustained on appeal if the charges could have been amended during the course of the trial. Doja (at [130]) and Rockdale Beef (at [123]) were authorities cited by the respondent in support of the submission.

70 In Doja , the Court of Appeal considered whether the failure to expressly state the mental element of an offence under s 178BB of the Crimes Act 1900 (' Crimes Act' ) in two counts out of eight counts, constituted a defective indictment otherwise curable by the verdict. The remaining six counts in the indictment alleged the necessary mental element (reckless disregard). Spigelman CJ held, relying on s 16(1)(b) of the CPA, that the indictment properly understood, "necessarily implies" the mental element otherwise absent in the two counts: at [33]. McClellan CJ at CL, delivering the main judgment, held that the indictment was defective but the jury's verdict operated to cure the verdict: at [130]. The basis upon which his Honour formed this view appears to have been that the indictment could have been amended during the course of the trial and the appellant had not contended otherwise.

71 Both Spigelman CJ and McClelland CJ at CL extensively considered relevant authorities on the issue of whether a defective indictment could be cured by the jury verdict. Their Honours referred to a number of English cases on the issue including Heymann v The Queen (1873) Law. Rep. 8 QB 102 ( 'Heymann' ) and The Queen v Aspinall (1876) 2 QBD 48 ( 'Aspinall' ).

72 In Heymann , it was held that the guilty verdict operated to cure a defective indictment. Blackburn J, speaking for the Court, said (at 105):

Where an averment which is necessary for the support of the pleading is imperfectly stated, and the verdict on an issue involving that averment is found, if it appears to the court after verdict that the verdict could not have been found on this issue without proof of his averment, then, after verdict, the defective averment, which might have been bad on demurrer, is cured by the verdict.

73 Heymann was applied in Aspinall in relation to a defective averment in the indictment. McClellan CJ at CL (at [115]) in commenting on Aspinall , noted that in the judgment, Brett JA (with whom Mellish LJ concurred) had emphasised that it was only an averment that was imperfectly stated which would be cured. In Aspinall , Brett JA (at 57-58) said, of the rule with regard to averments imperfectly pleaded which may be cured by verdict, that "... it is not applicable to the case of the total omission of an essential averment. If there be such a total omission, the verdict is no cure".

74 The above passage extracted from Aspinall was referred to with approval by Gleeson CJ in R v Morris (NSWCCA 25 November 1996, unreported) at p11.

75 Spigelman CJ in Doja remarked that the distinction referred to in Heymann and Aspinall between the kinds of defects which are capable of being cured by verdict (an averment imperfectly stated) and those which are not (an essential averment totally omitted from the indictment) remains a good one: at [45]. His Honour added in the same passage:

A verdict does not cure every defect in an indictment. If I had come to this conclusion that the mental element of the offence had not been pleaded, then I would not have concluded that the defect was cured by verdict.

76 In the present proceedings, the charges fall squarely within the second category of defective indictment, namely, an essential averment omitted from the indictment. Although the present proceedings are summary in nature, there is no good reason to suggest that the principle espoused in Heymann and in Aspinall may not be applied to summary proceedings. The absence of particularisation of the relevant omissions from the present charges compels, in these circumstances, the result that they are not cured by the convictions.

Conclusions and Orders

77 Given our conclusions, it follows in the aftermath of Kirk , as followed in John Holland (Court of Appeal), that Boland J fell into error when convicting the appellants of the offences in circumstances where the charges failed to plead, either expressly or by implication, the relevant omissions of S&L Steel. In the event, the appeals must be allowed. What arises for consideration is the form of appropriate relief. The appellants in their amended applications to this Court each claim the following heads of relief relevant to the issues which have emerged at oral hearing:

(2) That leave to appeal be granted.

(3) That the said appeal should be allowed and that the whole of the decision and orders of his Honour of 1 October 2009 and 7 December 2009 be set aside.

(4) That the Application for Order be dismissed.

(5) In the alternative to orders 3 and 4 above, that the Full Bench of the Industrial Court on appeal, if it deems it necessary, remit the matter back to another Judge to determine according to law.

78 Leave to appeal is not required in this matter. We propose to grant the relief claimed in Order 3 sought by the appellants. For reasons which follow, we consider it appropriate, in disposing of the appeals, to order that the matters be remitted to another judge to be determined according to law.

79 The appeals are brought under s 196 of the IR Act and s 5AA of the Criminal Appeal Act 1912 ('CAA'). The two provisions incorporate the appellate regime under the CAA into appeals against convictions for summary offences heard in this jurisdiction: see also Tsougranis v Inspector Carmody [2004] NSWIRComm 269, (2004) 135 IR 356 at [57] ( 'Tsougranis' ). Section 8(1) of the CAA provides a mechanism by which an appellate court hearing appeals under s 196 of the IR Act and s 5AA of the CAA may order or refuse a new trial. The section provides:

8 Power of court to grant new trial

(1) On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make.

80 On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make. Following amendments made to s 5AA in 2000, appeals under the section are appeals in the strict sense. The amendments brought the section into conformity with other appeals against conviction on indictment under the CAA, such as s 5(1).

81 In Tsougranis , the Full Court held that s 12 of the CAA, which provides for the admission of fresh or additional evidence on an appeal, applied to appeals brought under s 196 of the IR Act and s 5AA of the CAA. In Gilmour v EPA ; Tableland Topdressing v EPA [2002] NSWCCA 399 at [28], the Court of Criminal Appeal held that the proviso in s 6(1) of the CAA was available in relation to appeals under s 5AA: see also Tsougranis at [61]. Section 6(1) permits an appellate court to dismiss an appeal against convictions on indictment under s 5(1), notwithstanding appealable error at trial has been established.

82 Although we are not aware of any authority which has utilised s 8(1) of the CAA in appeals brought under s 5AA, in light of the respective approaches taken in Tsougranis and in Gilmour , we consider that the provision is available in relation to appeals brought under that section.

83 In R v Taufahema [2007] 228 CLR 232 at 254, the majority (Gummow, Hayne, Heydon and Crennan JJ) identified as a "key" factor in the application of s 8(1) of the CAA, "the public interest in the due prosecution and conviction of offenders". More recently in ST v Regina [2010] NSWCCA 5, Basten JA examined some of the authorities on the section. In one of those authorities, Spies v The Queen [2000] HCA 43; 201 CLR 603, the majority (Gaudron, McHugh, Gummow, Hayne and Callinan JJ) ordered a new trial, even though the appellant had served a sentence for the offence, and it was "unthinkable" that, if convicted, he would receive any additional punishment. Some of the factors taken into account by the majority are set out below (at [103] [104]):

[103] Since the charge under s 176A of the Crimes Act was misconceived, the prosecution should not be given the opportunity on a new trial to formulate a new case under that section[122]. The more difficult question concerns the charge under s 229(4) of the Companies Code. The appellant has already served the sentence imposed on him by the Court of Criminal Appeal. It is unthinkable that, if he were convicted on the s 229(4) charge, he would receive another custodial sentence or, for that matter, any additional punishment. That being so, it seems prima facie oppressive to put the appellant to the expense and worry of another trial which, on the evidence of the previous trial, is likely to take about 10 days. On the other hand, the case against the appellant in respect of the s 229(4) charge seems a strong one. If this Court were now to refuse to order a new trial of that charge, the appellant would be acquitted of all charges. In addition, members of the commercial community as well as the general public have a vital interest in ensuring that directors who abuse their office and breach the criminal or company law do not escape conviction.

[104] Unless the interests of justice require the entry of an acquittal, an appellate court should ordinarily order a new trial of a charge where a conviction in respect of that charge has been set aside but there is evidence to support the charge. In the present case, given the competing considerations, it cannot be said that the interests of justice require that the appellant be acquitted of the s 229(4) charge. That being so, it is a matter for the prosecuting authority to determine whether in all the circumstances there should be a further trial of the s 229(4) charge.

84 Basten JA, in ST v Regina , made the following additional observation (at [10]):

Where the evidence satisfies the test of sufficiency, the discretionary power to grant a new trial is properly engaged. As explained by O'Connor J in Peacock v The King [1911] HCA 66; 13 CLR 619 at 675:

"In exercising the discretion given by the Statute the interests, not only of the prisoner, but of the efficient administration of justice ought to be considered, always providing that no injustice is done to the accused. In this case there was ... ample evidence to justify a verdict of guilty, if the jury thought fit to come to that finding on the evidence. If it were not for the misdirection as to the prisoner's statement, the verdict of the jury could not in my opinion have been disturbed."

85 The prosecution bears the onus of showing the Court that a new trial is the most appropriate remedy: King v The Queen 161 CLR 430 at 426.

86 In the present circumstances there are factors which militate for and against orders for the re-hearing of both matters.

87 The cases against the appellants appear to be relatively strong. Boland J found the particulars of each charge, except for particular (b), to be proven beyond reasonable doubt. Nothing has been put forward by any of the parties to suggest that the prosecution's case would differ in any significant respect in terms of the evidence to be relied upon: cf Taufahema at 256. Boland J also found that the offences were objectively serious: see [24] of the judgment on sentence.

88 The offences occurred on 20 May 2006, a delay of some five years. In the event re-hearings take place it may be a further year, or more, before this occurs. It is arguable, however, that the delay itself is not so substantial as to militate against orders made for the re-hearing of both matters.

89 These proceedings may be distinguished from the proceedings in Kirk . In Kirk, it was found that the Court had no power to make orders convicting and sentencing Kirk and the corporate defendant, "because no particular acts or omissions, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence as constituting the offences ..."; at [74]. This was not what occurred here. The present appellants were on notice in the prosecution's opening in the trial below of one set of omissions in relation to particular (a) relied upon by the respondent, namely, the failure of S&L Steel to ensure compliance with and adequate enforcement of the prohibition on using open hooks in the lifting policy and another set of omissions in relation to particulars (c) and (d) in the charges (the third measure found by Boland J).

90 By way of analogy, the High Court judgment in S v The Queen (1989) 168 CLR 266, concerned an indictment which neither particularised nor identified specific acts of sexual intercourse relied upon by the Crown during the trial. The applicant had been charged with committing acts of incest. During the trial the complainant gave evidence of two specific acts of sexual intercourse with the applicant but there was no evidence to link either act to any one of the periods specified in the indictment. The indictment, as a result, was found to suffer from latent duplicity.

91 It was also found that the specific acts of sexual intercourse about which the complainant had given evidence were neither particularised nor identified and that, as a result, the applicant had been prejudiced in his defence because effectively he had been required to defend himself in respect of each of the periods specified in the indictment on the basis of when an offence might have been committed. In addition, because of the lack of particularisation and identification of the offences, the applicant had been denied the opportunity to properly test the credit of the complainant. The trial judge had rejected an application by the applicant's counsel for an adjournment pending the supply of particulars. A further application by the applicant's counsel that the Crown prosecutor identify the acts the subject of the counts was also rejected. Gaudron and McHugh JJ, in the majority, referred to practical difficulties in particularising or identifying one or all of the offences charged, which had produced uncertainty in the trial such that the verdicts could not be allowed to stand. Dawson, Toohey, Gaudron and McHugh JJ ordered that the convictions be quashed and that there be a new trial. Gaudron and McHugh JJ were of the view that a new trial should be ordered (at 288):

Because there may be some means of overcoming some or all of the difficulties which attended the trial of the applicant.

92 It is unlikely, given the identification of the relevant acts and omissions as found by Boland J, that similar practical difficulties referred to by Gaudron and McHugh JJ in S v The Queen would be encountered by the appellants in the event of a re-trial. Adopting the expression used in S v The Queen the means are available to overcome the deficiencies in the charges, in the event the matters are remitted to another judge to determine according to law.

93 Earlier we sought to emphasise the necessity in the trial process to observe procedural fairness. This issue is also of relevance on the question of appropriate relief. The circumstances in the proceedings below reveal that the appellants were at least made aware either before or during the trial of all the measures found by Boland J that they were required to take, even if that information was provided in a manner which overall, constituted an unfairness. Notwithstanding the imprecise and piecemeal manner in which the information was made available, at no stage of the proceedings did the appellants request further and better particulars of the allegations made in the charges. That is a significant consideration in resolving this appeal and the making of consequential orders.

94 At a very late stage of the proceedings Senior Counsel for the appellants submitted that the continuation of the proceedings against them would be oppressive if, on appeal, it was found on any ground that the prosecution could continue with its defects rectified. There was no evidence called to support this submission such as to reveal the personal circumstances of the appellants and how the existence of the proceedings have brought upon them hardship, prejudice or oppression. This submission is akin to an application for a permanent stay of these criminal proceedings - an application that has long been held to be exceptional and to be used sparingly (see e.g. Hakim (1989) 41 A.Crim.R 327; Dupas v The Queen [2010] HCA 20; Gorman and anor v Fitzpatrick and anor (1987) 32 A.Crim.R 330; Cahill v State of New South Wales (NSW) Department of Community Services (No 2) (2007) 165 IR 213). No such case has been made out by the appellants as to warrant such a fundamental interference with the prosecutorial process. Here, there is a public interest in ensuring that alleged criminal conduct is brought before the courts for determination and brought to justice those found to have offended.

95 The appellants referred to the comments of Heydon J in Kirk to support the proposition that the proceedings should not be allowed to continue but, not only was there an absence of evidence in relation to the relevant considerations referred to in the authorities cited above, it is also to be remembered that Heydon J was alone in those views and that the other six members of the court did not determine that no new trial should be ordered.

96 Having regard to the seriousness of the errors relating to the identification of the acts and omissions of the appellants and the measures that they should have taken in the way in which the trial was conducted, justice requires that there be a new trial, although, not in relation to particular (b) which his Honour found had not been established by the prosecution beyond reasonable doubt.

97 In the amended applications for leave to appeal and appeal, the appellants sought costs against the respondent of this appeal, as well as the costs of the proceedings below. Given the Orders which we will make, we propose that the question of costs be reserved allowing each party 14 days in which to file and serve written submissions on the issue. If written submissions are forthcoming and no further applications are made that the parties be heard on costs, the issue will be decided on the papers.

98 We make the following Orders in Matter Nos IRC 2064 and 2065 of 2009:

1. The appeals are allowed and the whole of the judgment and orders of Boland J of 1 October 2009 and 7 December 2009 are set aside.

2. Both matters are remitted to another judge to determine according to law.

3. Costs are reserved.

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Decision last updated: 22 October 2013