Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299
• Hearing dates: 20 June 2013
• Decision date: 02 December 2013
• Before: Bathurst CJ at [1]; Beazley P at [145]; Hoeben CJ at CL at [146]

Decision

1. Appeal dismissed.

• Catchwords: INDUSTRIAL LAW - criminal procedure - prosecution under the Occupational Health and Safety Act 2000 - requirement that proceedings be instituted by persons including inspector - whether inspector in fact instituted prosecutions.; INDUSTRIAL LAW - criminal procedure -Criminal Procedure Act 1986 s 246 - District Court Rules 1973 Pt 53 r 26 - whether application and statement of facts are required to be signed by the inspector.; INDUSTRIAL LAW - criminal procedure - failure to correctly institute proceedings - whether Criminal Procedure Act s 16(2) operates to validate proceedings.; INDUSTRIAL LAW - criminal procedure - Occupational Health and Safety Act 2000 - failure to particularise - whether charges disclose offence known to law - whether charges can be saved or amended.; JURISIDICTION - appeal - Criminal Appeal Act 1912 s 5C - notice of contention - whether Court of Criminal Appeal able to deal with issues within notice of contention.
• Legislation Cited: Consumer Protection Act 1969, s 32; Crimes Act 1900, s 178BB; Criminal Appeal Act 1912, s 5C; Criminal Appeal Rules; Criminal Procedure Act 1986, ss 3, 11, 12, 15, 16, 17, 20, 21, 126, 246; District Court Rules 1973, Pt 53 r 26; Industrial Relations Commission Rules 1996, r 217B; Justices Act 1902, s 65; Obscene and Indecent Publications Act 1901, s 36; Occupational Health and Safety Act 2000, ss 8, 91, 93, 106; Supreme Court (Summary Jurisdiction) Act 1967, s 6; Uniform Civil Procedure Rules 2005, r 50.11
• Cases Cited: Area Concrete Pumping Pty Ltd v Inspector Childs [2012] NSWCA 208; (2012) 223 IR 86; Broome v Chenoweth (1946) 73 CLR 583; Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131; Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442; Crothers v Sheil (1933) 49 CLR 399; Doja v The Queen [2009] NSWCCA 303; (2009) 198 A Crim R 349; Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261; Garrett v Freeman [2006] NSWCCA 278; (2006) 68 NSWLR 729; GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93; John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82; John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Knaggs v Director of Public Prosecutions [2007] NSWCA 83; (2007) 170 A Crim R 366; Ove Arup Pty Ltd v Industrial Court of New South Wales [2006] NSWCA 28; (2006) 149 IR 193; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355; R v Bacon [1973] 1 NSWLR 87; R v Beydoun (1990) 22 NSWLR 256; R v Boujaoude [2008] NSWCCA 35; (2008) 72 NSWLR 85; R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263; R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10; Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128; (2007) 165 IR 7
• Texts Cited: The Macquarie Dictionary (1982); The Shorter Oxford English Dictionary, 3rd ed (1973)
• Category: Principal judgment
• Parties: Attorney General of New South Wales (Appellant); Built NSW Pty Ltd (Respondent)
• Representation: Counsel: J V Agius SC, B G Docking and D B O'Neil (on behalf of the Attorney General of New South Wales); B Walker SC and R Ranken (Respondent); Solicitors: WorkCover Authority of NSW (Attorney General of New South Wales); Norton Rose Fulbright (Respondent)
• File Number(s): 2012/171786; 2012/171817
• Publication restriction: No

Decision under appeal

• Jurisdiction: 9101
• Date of Decision: 2012-11-29 00:00:00
• Before: Curtis DCJ
• File Number(s): 2012/171786; 2012/171817

Judgment

1 BATHURST CJ: This is an appeal brought by the Attorney General of New South Wales (the Attorney) pursuant to s 5C of the Criminal Appeal Act 1912, against an order made by Curtis DCJ (the primary judge) dismissing two summonses brought against Built NSW Pty Ltd (the respondent) alleging contraventions of s 8(2) of the Occupational Health and Safety Act 2000 (OH&S Act).

2 On 29 May 2012 Blanch J (Chief Judge of the District Court of New South Wales) granted two applications to commence proceedings under s 246 of the Criminal Procedure Act 1986 (CPA) and made orders that the respondent appear before the District Court to answer the charges. The prosecutor named in the applications, the summonses and the statements of facts which accompanied them, was Inspector Melinda Walsh.

3 The applications were signed by David Hall who was described as "Solicitor representing the prosecutor". The statements of facts were signed by Mr Hall as "Solicitor representing the prosecutor applying for an order under s 246 of the Criminal Procedure Act 1986".

4 The first summons described the offence in the following terms:

"Built NSW Pty Limited [ACN 083 928 045] a corporation with its registered office situated at Level 1, 140 Myrtle Street, Chippendale in the State of New South Wales ('the defendant'), being an employer, on 27 May 2010, at 401-411 Sussex Street, Haymarket in the State of New South Wales ('the site') failed by its acts and/or omissions particularised in Annexure A (attached) to ensure the health, safety and welfare at work of persons other than its employees, and in particular Jamie Zonno and Joshua Ziminez contrary to section 8(2) of the Occupational Health and Safety Act 2000."

The second summons was in the same terms apart from naming a different individual, Mr Dean Pulver, in relation to the alleged contravention.

5 By notices of motion filed on 17 August 2012, the respondent sought orders quashing the applications to commence proceedings and each summons. The respondent relied upon two grounds, first, that the proceedings were instituted by a person who was not authorised to do so and, second, that each summons did not allege an offence known to law.

6 The matter was heard by the primary judge on 15 November 2012 and judgment delivered on 29 November 2012. His Honour upheld the first ground relied upon by the respondent and dismissed each summons. He indicated that he would not have upheld the second ground as although he found the summons was defective, he held it was capable of amendment. He did not determine whether it was appropriate to grant leave to amend.

7 The Attorney pursuant to s 5C of the Criminal Appeal Act appeals against the conclusion of the primary judge on the first ground. By what was described as a notice of contention, the respondent contends that the primary judge erred in concluding that any defect in each summons was capable of being cured by amendment.

The relevant legislation

8 The first issue raised in the appeal falls for consideration against the following legislative background.

9 The provision, the subject of the charges in the present case, is s 8 of the OH&S Act (now repealed). At the time of the alleged offences it provided:

"8(1) Employees

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That duty extends (without limitation) to the following:

(a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health,

(b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used,

(c) ensuring that systems of work and the working environment of the employees are safe and without risks to health,

(d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work,

(e) providing adequate facilities for the welfare of the employees at work.

(2) Others at workplace

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work."

10 Section 106 of the OH&S Act dealt with the power to institute proceedings for an offence under that Act. It provided as follows:

"106(1) Proceedings for an offence against this Act or the regulations may be instituted only:

(a) with the written consent of a Minister of the Crown, or

(b) with the written consent of an officer prescribed by the regulations, or

(c) by an inspector, or

(d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate.

(2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer."

11 The procedure for instituting prosecutions for such offences is to be found in s 246 of the CPA:

"246(1) A prosecutor may apply for an order:

(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or

(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.

(2) The application must be in accordance with the rules.

(3) The order may be made in the absence of one or both parties.

(4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1)(a).

(5) An order for the apprehension of a person:

(a) must be addressed to all police officers, and

(b) may be addressed to any other person specified in the order, and

(c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court.

(6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant:

(a) committing the person to a correctional centre or other place of security, and

(b) ordering the person to be brought before a court at the date, time and place specified in the order."

12 The relevant rule for the purpose of s 246(2) is Pt 53 r 26 of the District Court Rules 1973 (r 26). That rule is in the following terms:

"26(1) Proceedings under section 246 must be commenced in the Court by an application in the approved form for the issue of a summons or for the issue of a warrant for apprehension.

(2) The summons or warrant for apprehension must be in the approved form and must be lodged with the application.

(3) A statement of facts in respect of the offence signed by the prosecutor applying for an order under section 246 is to be lodged with the application.

(4) Where a prosecutor is seeking an order for the apprehension of a person, the application is to be accompanied by an affidavit setting out both the statement of facts and the reasons why a warrant is sought."

13 It should be noted that s 3 of the CPA defines "prosecutor" and "rules" as follows:

"prosecutor means the Director of Public Prosecutions or other person who institutes or is responsible for the conduct of a prosecution and includes (where the subject-matter or context allows or requires) an Australian legal practitioner representing the prosecutor."

"rules means rules made for the purposes of a court to which the relevant provision applies."

14 The provisions of s 16, s17(2), s 20 and s 21(1) of the CPA are also relevant. These provisions provide as follows:

"16(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:

(a) for the improper insertion or omission of the words 'as appears by the record', 'with force and arms', 'against the peace', 'against the form of the statute' or 'feloniously',

(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,

(c) for want of a proper or perfect venue or a proper or formal conclusion,

(d) for want of any additional accused person or for any imperfection relating to any additional accused person,

(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,

(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,

(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,

(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,

(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions-for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.

(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:

(a) any alleged defect in it in substance or in form, or

(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant."

"17(2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect."

"20(1) An indictment may not be amended after it is presented, except by the prosecutor:

(a) with the leave of the court, or

(b) with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.

(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment."

"21(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case."

The grounds of appeal and notice of contention

15 The Attorney relied on the following grounds of appeal:

"GROUND ONE:

His Honour erred in dismissing the summons in matter number 2012 / 171786 and matter number 2012 / 171817, which were commenced against the respondent by orders granted by his Honour Justice Blanch, Chief Judge of the New South Wales District Court, on 29 May 2012.

GROUND TWO:

His Honour erred in determining that the District Court of New South Wales has jurisdiction to overturn previously granted final orders made by another District Court of New South Wales, in relation to the same issue, against the respondent in matter number 2012 / 171786 and 2012 / 171817.

GROUND THREE:

His Honour erred in determining that his Honour Justice Blanch, Chief Judge of the District Court of New South Wales, had erred in granting the application to commence proceedings in the District Court of New South Wales for a summary offence, to the prosecutor, against the respondent in matter number 2012 / 171786 and 2012 / 171817, on 29 May 2012.

GROUND FOUR:

His Honour erred in determining that his Honour Justice Blanch, Chief Judge of the District Court of New South Wales, erred in granting the summonses to be issued to the prosecutor to commence proceedings against the respondent in matter number 2012 / 171786 and 2012 / 171817, on 29 May 2012.

GROUND FIVE:

His Honour erred in his construction of section 106(1)(c) of the Occupational Health and Safety Act 2000 (NSW).

GROUND SIX:

His Honour erred in his construction of Part 53 Rule 26 District Court Rules 1973 in determining that the application to commence proceedings in the District Court of New South Wales for a summary offence in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent had not been made in accordance with Part 53 Rule 26 District Court Rules 1973.

GROUND SEVEN:

His Honour erred in his construction of section 246 Criminal Procedure Act 1986 (NSW).

GROUND EIGHT:

His Honour erred in determining that the summonses issued to the prosecutor to commence proceedings against the respondent in matter number 2012 / 171786 and 2012 / 171817, on 29 May 2012, were instituted by Mr David Hall, solicitor for the prosecution, and not by Inspector Melinda Walsh pursuant to section 106(1)(c) Occupational Health and Safety Act 2000 (NSW).

GROUND NINE:

His Honour erred in determining that Inspector Melinda Walsh had delegated her authority as prosecutor to Mr David Hall, solicitor for the prosecutor, in the instituting of the prosecution against the respondent in matter number 2012 / 171786 and 2012 / 171817.

GROUND TEN:

His Honour erred in determining that Mr David Hall, solicitor for the prosecutor, did not have authority to sign the application to commence proceedings in the District Court of New South Wales for a summary offence, as solicitor representing the prosecutor in each of the applications to commence proceedings in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent.

GROUND ELEVEN:

His Honour erred in determining that Mr David Hall, solicitor for the prosecutor, did not have authority to sign the statement of facts, as solicitor representing the prosecutor in each of the applications to commence proceeding in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent.

GROUND TWELVE:

His Honour erred in determining that the applications to commence proceedings in the District Court of New South Wales for a summary offence in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent were required to be signed by Inspector Melinda Walsh.

GROUND THIRTEEN:

His Honour erred in determining that the summonses issued to commence proceedings in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent were required to be composed by Inspector Melinda Walsh.

GROUND FOURTEEN:

His Honour erred in determining that the summonses issued to commence proceedings in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent were required to be signed by Inspector Melinda Walsh.

GROUND FIFTEEN:

His Honour erred in determining that the statement of facts in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent was required to be signed by Inspector Melinda Walsh.

GROUND SIXTEEN:

His Honour erred in determining that the statement of facts in matter number 2012 / 171786 and 2012 / 171817 alleged against the respondent was required to be composed by Inspector Melinda Walsh.

GROUND SEVENTEEN:

His Honour erred in applying R v Janceski (2005) 64 NSWLR 10 to determine the Notice of Motions before him."

16 It should be noted that Ground 2 was abandoned during the course of the hearing. Senior counsel on behalf of the Attorney indicated, however, that the Attorney may seek to rely on this ground in other proceedings relating to the same issue.

17 The "notice of contention" filed by the respondent relied on the following ground:

"His Honour should also have held that:

(a) each Summons in proceedings 2012/171786 and 2012/171817, which remained unamended, was defective in that they each failed to disclose an offence known to law; and

(b) those defects were incapable of being cured by amendment."

18 It should be noted that "indictment" is defined for the purpose of Pt 2 of Ch 2 of the CPA, in which the sections referred to in par [14] above appear, as including any process or document by which criminal proceedings are commenced: CPA s 15.

The reasoning of the primary judge

19 The primary judge stated that the question for determination was whether the subject matter or context of the prosecution permits the extended meaning of prosecutor contained in s 3 of the CPA.

20 He stated that the question was to be answered in light of the legislative purpose behind s 106 of the OH&S Act, s 246 of the CPA and r 26.

21 The primary judge pointed to the fact that s 106(1) of the OH&S Act expressly restricted the authority to institute proceedings to a limited class of persons including an inspector appointed pursuant to the OH&S Act. His Honour pointed to the wide powers of investigation conferred upon inspectors by the OH&S Act, concluding as a consequence that they were uniquely empowered to determine if and when charges should be laid. He concluded that the legislative scheme requires that the inspector investigate the circumstances involving possible breaches of the OH&S Act and accept personal responsibility for any charges laid. He said that there was no provision for the delegation of such authority.

22 His Honour concluded that in these circumstances s 246 of the CPA and r 26 "effect a parliamentary intention that where the right to institute proceedings is expressly conferred by an Act on a specified person, the signature of that person upon the charge should constitute a warrant to the court, the accused, and other interested persons" that the proceedings were brought in accordance with s 106(1) of the OH&S Act (emphasis in original).

23 In these circumstances his Honour found the proceedings had not been brought in accordance with s 106(1) of the OH&S Act and were void.

24 So far as the matter the subject of the notice of contention is concerned, the primary judge accepted that the charge was defective in that it did not aver the necessary ingredients of an offence under s 8(2) of the OH&S Act, namely, that the employer failed to ensure that people "other than employees" were not exposed to risks to their health and safety arising from the conduct of the employer's undertaking while they were at the employer's place of work. His Honour speculated at par [55] that it may have been intended to bring a charge under s 8(1), rather than s 8(2).

25 The primary judge also concluded that the provisions of s 16(2) of the CPA did not operate to prevent objection being taken to the form of the charge for want of averment of a necessary ingredient. He stated that s 16(2) of the CPA proceeded on the basis that all necessary ingredients are averred or implied in the charge. As that was not the position in the present case, he concluded that s 16(2) had no application.

26 The primary judge accepted that if the charge contained nothing which could possibly identify an offence known to law, then it could not be amended as it would be a nullity. However, he stated that the defect did not fall into this class of case but rather that it ambiguously identified two possible offences. In these circumstances he concluded that s 21(1) of the CPA permitted amendment of the charge.

27 The primary judge expressly stated that he was not expressing any opinion as to whether an amendment should be permitted if it was applied for.

The Attorney General's submissions

(a) The appeal

28 The Attorney in his submissions did not seek to deal separately with each ground but rather made general submissions concerning the grounds raised.

29 The Attorney submitted, correctly, that a properly appointed inspector of the WorkCover Authority of New South Wales (WorkCover) has power under s 106(1)(c) of the OH&S Act to institute proceedings for a contravention of that Act. However, he submitted that in doing so he or she was exercising the statutory power under the authority, advice and direction of WorkCover, relying in that context on what was said by the High Court in Crothers v Sheil (1933) 49 CLR 399, by this Court in Ove Arup Pty Ltd v Industrial Court of New South Wales [2006] NSWCA 28; (2006) 149 IR 193 and the decision of the Land and Environment Court in Corbyn v Walker Corporation Pty Ltd [2012] NSWLEC 75; (2012) 186 LGERA 442. The Attorney submitted that the real prosecutor was WorkCover and that in those circumstances there was at most a defect in the information which could be cured by amendment.

30 The Attorney referred to the affidavit of Inspector Walsh sworn on 21 September 2012, in which Inspector Walsh stated that she determined to institute proceedings against the respondent and that Mr Hall applied on her behalf to the District Court to seek orders under s 246 of the CPA to commence the proceedings. In that context the Attorney submitted that Mr Hall appeared on the instructions of WorkCover.

31 The Attorney submitted that s 246(1) of the CPA is a machinery provision for an order for the issuing of a summons and to obtain the attendance of the accused person to answer the charge. He submitted that there was no requirement pursuant to r 26 that the application or the summons be signed by the prosecutor, only that the statement of facts be signed.

32 This may be doubted because r 26 states that proceedings under s 246 of the CPA must be commenced by an application in the approved form. The approved form provides for signature by the prosecutor. However, it is correct that the summons does not have to be signed.

33 The Attorney submitted that the scheme adopted by s 246 of the CPA and r 26 is analogous to a charge being preferred by a police officer. The Attorney sought to contrast this procedure with a mandatory requirement in s 126 of the CPA that an indictment is required to be signed by an authorised person.

34 The Attorney submitted that the evidence before the primary judge was that Inspector Walsh "was the prosecutor, officer-in-charge of the investigation". In that regard he pointed to her affidavit of 21 September 2012 in which she stated that she determined the charge and allegations to be alleged, and further, in the application to commence proceedings, the summonses and the statement of facts, the prosecutor was stated to be Inspector Walsh. The Attorney submitted that the material showed that Mr Hall was "the legal representative of the prosecutor". At the hearing senior counsel on behalf of the Attorney departed from this submission somewhat, stating that material showed that Mr Hall was the legal representative for Inspector Walsh.

35 It should be noted that contrary to this submission, Inspector Walsh did not say that she determined the charge and allegations to be alleged against each of the defendants. Rather, in her affidavit of 21 September 2012 she stated that she determined to institute proceedings against, amongst others, the respondent and Air Conditioning Engineering Services Pty Ltd for offences under s 8(2) of the OH&S Act.

36 The Attorney submitted that Mr Hall did not say he was the prosecutor, but rather that he was the legal representative for WorkCover. Once again this was modified at the hearing where it was submitted that Mr Hall stated that he was the legal representative of the prosecutor. The Attorney submitted that the position of Mr Hall was analogous to that of a police prosecutor, or a solicitor in the office of the Director of Public Prosecutions or Environmental Protection Authority, being a person who could appear to represent the prosecutor in the prosecution before the court.

37 The Attorney submitted that a summons, unlike an indictment, did not require the signature of the prosecutor to constitute a valid charge. The Attorney said that in applying R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10 the primary judge failed to appreciate the difference between indictments and summary prosecutions; in particular, contrary to an indictment, a summons commencing a prosecution only needs to be signed by the judicial officer who has granted the application for the issuing of the summons. He also repeated the incorrect submission that r 26 did not require the application to be signed by the prosecutor.

38 In that context the Attorney submitted that it was not the purpose of the legislation that if the application or statement of facts was not signed by the prosecutor then the summons would be void. The Attorney emphasised that the only purpose of the application to commence the proceedings was to obtain the attendance of the relevant defendant before the court to answer the charges the subject of the summons.

39 At the hearing senior counsel on behalf of the Attorney emphasised that the issue was whether Inspector Walsh could be regarded as having instituted the proceedings in circumstances where the application to commence proceedings and the statement of facts were signed by Mr Hall as her representative. He submitted that although Mr Hall signed the application and statement of facts on behalf of Inspector Walsh, once it was appreciated that the prosecutor was WorkCover, then the reasoning of the primary judge to the effect that r 26 required Inspector Walsh to sign the application and statement of facts could not be supported. Senior counsel pointed to the fact that s 106 of the OH&S Act does not provide that the inspector who investigated the matter the subject of the charge be the inspector who instituted the proceedings. Senior counsel stated that this reflected the fact that the ultimate responsibility lay with WorkCover.

40 In submitting that Mr Hall had authority to sign the applications and the statements of facts, senior counsel on behalf of the Attorney relied on s 3 of the CPA which as I indicated defines prosecutor to include an Australian legal practitioner representing the prosecutor. He submitted that provided an inspector was prepared to institute proceedings, then there was nothing to prevent the word prosecutor being read as including a legal practitioner representing the prosecutor. He submitted that the documents filed made it quite clear that the prosecutor was Inspector Walsh.

41 Senior counsel on behalf of the Attorney submitted that there was nothing in the context of the CPA and the OH&S Act which would indicate a contrary conclusion. He said that the purpose of the application was to have the summons issued and was not related to the merits of the prosecution. He pointed out that the requirement in s 106 of the OH&S Act related to the institution of the proceedings and not the signing of any particular document.

42 Senior counsel on behalf of the Attorney also submitted that even if his submission that the application and statement of facts were not required to be signed by the prosecutor was incorrect, s 16(2) of the CPA precluded objection being taken to the document on that point. He submitted that s 16(2) applies to all criminal courts in the jurisdiction, referring to Garrett v Freeman [2006] NSWCCA 278; (2006) 68 NSWLR 729 and Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507. He submitted in that context that if there was a defect it was not a nullity but rather a curable defect.

(b) The notice of contention

43 The Attorney submitted that although the primary judge had concluded that the defects in the charge were capable of remedy, he had not in fact determined whether he would permit an amendment. In these circumstances the Attorney submitted that the issues raised by the notice of contention should not be determined at this stage.

44 The Attorney submitted that the Court of Criminal Appeal does not have jurisdiction to hear the matters raised in the notice of contention. He submitted that the Court of Criminal Appeal is constituted by statute and has no power other than that conferred upon it by the Criminal Appeal Act 1912. He submitted that the Court was not entitled to hear an "appeal" pursuant to a notice of contention. Further, he submitted there was no provision in the Criminal Appeal Rules for the filing of such a notice.

45 In relation to the substantive issue raised by the notice of contention, the Attorney relied upon the submissions of the Inspector in the Court below. In contending that the defects were capable of amendment, Inspector Walsh placed reliance on the principles set out below which were said to govern the operation of s 16(2), s 17(2) and s 21 of the CPA. It was submitted that these principles could be derived from what was said by Basten JA in Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales [2007] NSWCA 128; (2007) 165 IR 7 at [109]-[132] and from GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93.

46 The first of these principles was that the purpose of the initiating process was to engage the jurisdiction of the court and also to ensure procedural fairness to the defendant.

47 As a corollary of this, where not enough has been done to engage the jurisdiction of the court within the limitation period, the proceedings may be a nullity. However if properly commenced, questions of procedural fairness may be addressed once the defendant has been served.

48 Second, deficiencies may be so gross that as a matter of construction s 16(2) of the CPA would not be read as applying to them.

49 Third, in assessing whether a defect is of a kind that might not be cured by s 16(2), reference must be made to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance.

50 The submissions of the Inspector in the Court below also stated that a statutory provision which permits amendment of a charge by particularisation at any time should not be subject to implied limitations. It was submitted that failure to plead the essential elements does not make a charge unknown to law and, further, that an inadequately charged offence also does not necessarily make the charge one unknown to law.

51 In the present case senior counsel on behalf of the Attorney submitted the defective words used were required to be read in context. He submitted that both the description of the offence and the section headed "Statutory Provision Describing Offence" within each summons referred to s 8(2) of the OH&S Act. He submitted that reading each summons in its entirety including Annexure A, disclosed that the defendant was an employer, the persons at risk were non-employees, and the risk arose from the defendant's undertaking and at the defendant's place of work. He submitted that in those circumstances each summons and particulars could be seen fairly to charge a known criminal offence under s 8(2) of the OH&S Act.

52 Senior counsel on behalf of the Attorney also submitted that the first of the defects in the summons was the insertion of the words "at work" rather than referring to the employer's place of work. He said that the particulars made it clear that the employer's place of work was at the site. He said the second deficiency, namely, failure to aver that the risk arose from the conduct of the employer's undertaking, was also rectified by the particulars. He submitted that consistent with what was said in Rockdale Beef supra and Area Concrete Pumping Pty Ltd v Inspector Childs [2012] NSWCA 208; (2012) 223 IR 86, the defects in these circumstances did not result in the charge being a nullity and could be cured by amendment.

The respondent's submissions

(a) The appeal

53 Unlike the Attorney, the respondent in its written submissions dealt separately with each ground of appeal.

Ground 1

54 The respondent submitted that the proceedings before the primary judge were instituted by the filing of the applications with their accompanying summonses and statements of facts on 25 May 2012. It submitted that in these circumstances the true issue in respect of Ground 1 is whether the primary judge erred in dismissing each summons.

55 The respondent submitted that having regard to the terms of s 106(1), the conclusion of the primary judge could only be understood as a finding that the prosecutor failed to prove the proceedings were instituted by a person authorised to do so. It submitted that it was implicit in this conclusion that the primary judge found that the proceedings were instituted by Mr Hall, albeit in the name of Inspector Walsh.

56 The respondent submitted it was open to the primary judge to reach this conclusion. It pointed to the fact that the applications and the statements of facts which on their face required the signature of the prosecutor were signed by Mr Hall, albeit as a solicitor representing the prosecutor. It submitted that the primary judge was correct in concluding there was no evidence that Inspector Walsh composed the summonses or statements of facts. It submitted that although Inspector Walsh stated in her affidavit that she determined to institute proceedings for the contraventions of the OH&S Act, there was no evidence that she had settled, approved or even sighted the applications, summonses and statements of facts, or turned her mind to the context of the allegations, or that she instructed Mr Hall to institute proceedings in the form in which they were in fact instituted.

57 The respondent submitted that in those circumstances the determination of the appeal turned upon the question of whether Mr Hall was entitled to institute proceedings as agent for the inspector who was so authorised.

58 The respondent submitted that s 106(1) of the OH&S Act expressly conferred the right to institute proceedings on specified persons or classes of persons. It submitted that the section is exhaustive in its language and does not provide for either the institution of proceedings by a person acting on behalf of an authorised person or for any delegation of authority to institute proceedings.

59 The respondent submitted that the extended definition of "prosecutor" in s 3 of the CPA is not a source of authority to institute proceedings under the OH&S Act. It submitted that this was because the extended definition is subject to an express limitation within s 3, being "where the subject matter or context allows or requires". It was submitted that in the present case the context did require otherwise, the context being the absence of any authority to delegate in s 106(1)(c) of the OH&S Act.

60 The respondent submitted that the institutional or administrative arrangements of WorkCover cannot affect the clear words of s 106 of the OH&S Act. It submitted that whilst it may explain the manner in which the proceedings were instituted, it does not provide a basis for concluding that the solicitor had authority to commence proceedings.

61 The respondent submitted the primary judge was correct in concluding that the legislative scheme required acceptance by the inspector of personal responsibility for the content of any charge to be prosecuted and, further, that s 246 of the CPA together with r 26 reflected a parliamentary intention that the signature on the documents by the authorised person constituted a warrant to the court that the prosecution was brought pursuant to that express conferral of authority. It submitted that absent such a warrant, the onus remained with the prosecutor to satisfy the court that the person who instituted the proceedings was authorised to do so. The respondent submitted that the prosecutor failed to discharge that onus.

Grounds 3 and 4

62 The respondent submitted that these grounds were effectively based on the proposition that the dismissal of the summonses was based on the conclusion that Blanch J erred in granting the applications to commence proceedings. The respondent pointed out that the conclusion of the primary judge did not depend on the identification of such an error.

Ground 5

63 The respondent submitted that apart from the submissions made in respect of Ground 1, the Attorney did not suggest the primary judge committed any further error which would fall within this ground.

Grounds 6, 12 and 15

64 The respondent submitted that the summary jurisdiction of the District Court was governed by Pt 5 of Ch 4 of the CPA. It submitted that any application must be made in accordance with the District Court Rules. It submitted that as the application and statement of facts had not been made in accordance with the rules, these grounds were not made out.

Ground 7

65 The respondent submitted that the Attorney was incorrect in submitting that the primary judge had concluded that s 246 of the CPA required the signature of the inspector to be placed on the charge. It submitted that the primary judge went no further than concluding that s 246 and r 26 demonstrated a parliamentary intention that where the right to institute proceedings is conferred on a particular person, the signature of that person constitutes a warrant to the court that the prosecution is brought in accordance with s 106(1) of the OH&S Act.

Ground 8

66 The respondent submitted that for the reasons given in respect of Ground 1, the primary judge was correct in concluding that the proceedings were instituted by Mr Hall rather than Inspector Walsh.

Ground 9

67 The respondent submitted that contrary to what was stated in this ground, the primary judge did not find that Inspector Walsh had delegated her authority as prosecutor to Mr Hall. It referred to par [26] of the judgment of the primary judge to the effect that no power exists for delegation of such authority. It submitted that for the reasons given in respect of Ground 1, the primary judge was correct in drawing this conclusion.

Grounds 10 and 11

68 As with Ground 9, the respondent submitted that the primary judge did not make the asserted finding, namely, that Mr Hall lacked the authority to sign the applications to commence proceedings. It submitted that the finding by the primary judge was that there was non-compliance with r 26 because Mr Hall was not a person authorised to commence proceedings for an offence under the OH&S Act. The respondent submitted that for the reasons referred to earlier, this conclusion was correct.

Grounds 13 and 16

69 The respondent submitted it was incorrect to state that the primary judge found that each summons was required to be composed by Inspector Walsh. It pointed to the finding of fact that there was no evidence that either the summonses or the accompanying statements of facts were in fact composed by her. It submitted that this finding was a relevant but not conclusive fact supporting the conclusion of the primary judge that the proceedings had been commenced by a person not authorised to do so.

70 The respondent accepted a different outcome may have occurred if there had been some evidence that Inspector Walsh had accepted responsibility for the content of the charges by composing, settling, approving or even sighting the summonses and statements of facts prior to filing. It noted that had the documents in fact been signed by Inspector Walsh, that would have amounted to conclusive evidence that she instituted the proceedings.

Ground 14

71 The respondent submitted that although the primary judge referred on one occasion in his judgment at par [12(b)(i)] to a submission made by the respondent that the summons was required to be signed by the prosecutor and reached a conclusion consistent with that submission at par [17], it was a slip or typographical error as no submissions to that effect had been made in the Court below.

Ground 17

72 The respondent submitted that the primary judge did not simply apply R v Janceski supra, but rather pointed to the fact that the reasoning standing behind the requirements for compliance with s 126 of the CPA was apposite so far as it concerned the importance of certainty on the face of the documents by which the proceedings were instituted that the person who made the decision to prosecute had authorised the commencement of proceedings in the specific form in which they were in fact instituted.

(b) Submissions at the hearing

73 At the hearing senior counsel for the respondent emphasised the specific requirement in s 246(2) of the CPA that the application must be made in accordance with the rules. He stated that the District Court Rules called for the use of approved forms which unmistakably refer to the prosecutor.

74 So far as the definition of "prosecutor" contained in s 3 of the CPA is concerned, senior counsel for the respondent submitted that in this case context required the reference to prosecutor to not extend to an Australian legal practitioner representing the prosecutor. This was because the effect of the application of the extended definition in s 3 would be to make Mr Hall the prosecutor which was directly contrary to the requirements of s 106(1) of the OH&S Act. He submitted this could be contrasted to cases where the CPA imposed requirements on the prosecutor which could be carried out by their legal representative, giving as an example attendance at court for pre-trial directions. He emphasised that s 3 was not an authorising provision or an agency provision but rather a definition section.

75 Senior counsel for the respondent also submitted that the requirement that the application and statement of facts be signed by the prosecutor was contrary to the suggestion that a prosecution can be instituted and carried out by an agent.

76 Senior counsel for the respondent also submitted that the structure of s 106 of the OH&S Act indicated there was no room for delegation of the authority to institute proceedings.

77 Senior counsel for the respondent submitted that s 16 of the CPA did not operate to remedy the defect. He submitted that the effect of s 16 was not to authorise signature by an Australian legal practitioner. He pointed to the fact that the issue in Garrett v Freeman supra was different; the question in that case concerned the effect on the validity of proceedings resulting from the fact that a person authorised to bring the proceedings brought them in the wrong capacity. He submitted that where the proceedings were brought by a person who had no authority to do so, the proceedings were a nullity and there was no room for the operation of s 16(2).

(c) The notice of contention

78 The respondent submitted that the Court had jurisdiction to deal with this issue. It submitted that to the extent Hunt J decided in R v Beydoun (1990) 22 NSWLR 256 that when an appeal under s 5C of the Criminal Appeal Act 1912 is sustained the Court must set aside an order quashing the indictment, the decision should not be followed. The respondent submitted that what was said by Hunt J was obiter dicta. Further, it submitted that the remarks were not directed to circumstances where the indictment was liable to be quashed on other grounds.

79 The respondent submitted that the absence of any specific procedure in the Criminal Appeal Act or Criminal Appeal Rules did not lead to the conclusion that the Court had no power to deal with the issue.

80 So far as the substantive issue raised by the notice of contention was concerned, the respondent contended that each of the summonses alleged an offence that did not exist at law, namely, a duty "to ensure the health, safety and welfare at work of persons other than its employees".

81 The respondent submitted there were no available means to overcome this defect. It submitted that reliance could not be placed on either s 11 of the CPA as the offence was not described in the words of any section creating the offence, or on s 12(1) of the CPA because the prosecutor had not used any short expression to describe the offences in general terms.

82 The respondent submitted that whilst on its face s 16(2) of the CPA might provide a means of overcoming the defect, the section does not allow a court to overlook a failure to disclose an offence known to law. It submitted this was determined by cases such as Doja v The Queen [2009] NSWCCA 303; (2009) 198 A Crim R 349 and also followed from what was said by Basten JA in Rockdale Beef supra at [132] that where there is uncertainty or ambiguity as to the identification of the offence or the nature of the offence, the defect will be outside the scope of s 16(2) of the CPA.

83 The respondent contended that this case was to be distinguished from cases such as Rockdale Beef supra, GPI (General) Pty Ltd supra and Area Concrete Pumping supra, which each involved defects of omission. It submitted that in the present case the defect cannot be cured by way of additional particulars, elements or words. Amendment, it submitted, would substitute a totally different charge. At the hearing senior counsel for the respondent submitted that there was no platform on which an amendment could be built.

Consideration

84 Neither party contended that the Attorney did not have the right to institute this appeal under s 5C of the Criminal Appeal Act. They were correct in not doing so: Ove Arup Pty Ltd supra at [65].

85 It is convenient to deal with the matters the subject of the appeal under three heads. First, were the proceedings instituted by Inspector Walsh? Second, was it a requirement that Inspector Walsh sign the applications and statements of facts? Third, if the proceedings were not instituted by Inspector Walsh as required by s 106(1)(c) or if she was required to sign the applications and statements of facts, do the provisions of s 16 and the amendment provisions in the CPA mean the charges were not invalid?

Did Inspector Walsh institute the prosecution?

86 The question is whether Inspector Walsh instituted the proceedings for the offences charged. I have referred to proceedings for the offences charged because s 106(1) of the OH&S Act refers to "Proceedings for an offence against this Act" rather than merely proceedings under the Act. This would seem to me to require that an inspector institute proceedings for a particular offence. Whatever else be the case, s 106(1)(c) would not be complied with by an inspector authorising another person to bring such proceedings as he or she thought fit arising out of a particular set of facts.

87 Further, the proceedings must be instituted by an inspector. It is not enough that the inspector consents to another person instituting the proceedings. Whilst a Minister of the Crown and an officer prescribed by the regulations can by s 106(1)(a) and (b) give written consent to another person to institute proceedings, no such power is conferred on an inspector. The OH&S Act thus makes it clear that it is the inspector personally who must institute the proceedings for the offence.

88 The critical question is what is meant by or involved in the institution of proceedings for an offence. The word "institute" is relevantly defined in the Shorter Oxford English Dictionary as to "set up", "initiate" or "start" and in the Macquarie Dictionary as "to set on foot; inaugurate; initiate": The Shorter Oxford English Dictionary, 3rd ed (1973) at 1085; The Macquarie Dictionary (1982) at 918. However, the meaning must be considered by reference to the context and purpose of the section: Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131at [23]-[26] and the cases there cited.

89 The context in the present case is that the legislature has evinced an intention that only a limited class of persons has the power to institute proceedings for an offence against the OH&S Act. That class included inspectors. Inspectors were given extensive powers of investigation under the OH&S Act, power under s 91 to issue notices requiring contraventions to be remedied and powers under s 93 to issue notices prohibiting conduct giving rise to risks to health or safety. The right to institute proceedings was thus given to persons who had particular responsibility for the administration of the OH&S Act and the preservation of workplace safety.

90 In that context it seems to me that the institution of proceedings by an inspector requires an inspector, at a minimum, to turn his or her mind to the particular offence in question and direct that charges for a particular offence be laid. Where, as in the present case, the institution of the proceedings requires the preparation of a statement of facts, an inspector at the very least has to consider that statement of facts and direct that a charge containing those particulars goes forward.

91 Such a construction recognises the potentially serious consequences that can flow from a contravention of the legislation. It also recognises that the requirement that proceedings for an offence against the OH&S Act be instituted by a prescribed person is not a mere formality.

92 In the present case Inspector Walsh gave evidence of her involvement in the institution of the proceedings. In her affidavit of 21 September 2012 she stated that in May 2012 she decided to institute proceedings against the respondent and Air Conditioning Engineering Services Pty Ltd for offences under s 8(2) of the OH&S Act. However, she did not state that she approved the particular charges in question or the statements of facts which were relied upon in support of the issuing of each summons.

93 So far as the position of Mr Hall was concerned, Inspector Walsh gave the following evidence:

"3. David John Hall applied on my behalf to the District Court pursuant to s.246 of the Criminal Procedure Act for orders that Built NSW Pty Limited, Air Conditioning Engineering Services Pty Limited, Bravo Industries Pty Limited and Ruben Benjamin Bravo appear before the court."

94 In that paragraph of her affidavit Inspector Walsh did not say that she authorised Mr Hall to apply for the orders, much less that she authorised the applications be made based on the applications and statements of facts which were filed in the District Court on 25 May 2012.

95 The statement by Mr Hall on the applications and statements of facts that he signed them on behalf of Inspector Walsh does not in my opinion alter the position. Taken in conjunction with the evidence of Inspector Walsh, it cannot establish that she approved the particular charges and statements of facts which instituted the proceedings.

96 In these circumstances, in my opinion, Inspector Walsh did not institute the proceedings against the respondent for the alleged offences.

97 I do not think that this can be overcome by the submission that the real prosecutor was WorkCover. Section 106(1) of the OH&S Act did not state that WorkCover could institute proceedings for a prosecution or consent to one of its employees doing so. The cases that were cited in support of the proposition do not, on analysis, support it.

98 Crothers v Sheil supra was a case where the informant, an officer of the Milk Board, had authority to lay an information on behalf of the Board but in doing so mistakenly laid it in his name rather than in the name of the Board. It was held that the defect was capable of remedy under s 65 of the Justices Act 1902, the then equivalent to s 16(2) of the CPA. That case unlike the present involved the laying of an information by a person who had authority to do so.

99 Ove Arup Pty Ltd supra relevantly involved the question of whether a prosecution under the OH&S Act brought by an inspector is, for the purpose of s 5C of the Criminal Appeal Act, a proceeding to which the Crown was a party.

100 Basten JA, with whom Spigelman CJ and Mason P agreed, noted at [62] that the inspector was appointed by a statutory authority representing the Crown and brought the prosecution pursuant to their statutory authority as an inspector. He concluded at [71] that the inspector is an officer carrying out statutory functions in the public interest, effectively representing the authority which is taken to be the real party to the proceedings, in that case the body being the WorkCover Authority representing the Crown.

101 So much may be accepted. However, that does not mean contrary to the clear words of s 106(1) of the OH&S Act that WorkCover, or any person employed or authorised by that body, can institute proceedings.

102 In Corbyn v Walker Corporation Pty Ltd supra, the proceedings up to the time of trial had been instituted and maintained in the name of the Director-General of the Department of Environment, Climate Change and Water, rather than in the Director-General's own name, Lisa Corbyn. Preston J (Chief Judge of the Land and Environment Court of New South Wales) held that by virtue of s 16(2) of the CPA no objection could be taken to this defect. This was consistent with Crothers v Sheil supra.

103 The defendant in Corbyn v Walker Corporation Pty Ltd supra was found guilty of the charges brought against it. However, prior to sentence Ms Corbyn resigned from her office. There was then a challenge to the retainer of the solicitors and counsel appearing for the prosecutor.

104 Preston J rejected the challenge. He held that the proceedings did not abate following Ms Corbyn's resignation and that the Department of Environment and Heritage, which replaced the abovementioned Department, could continue to maintain the proceedings. This hardly surprising result says nothing on the question of who was authorised to institute proceedings under s 106(1) of the OH&S Act.

105 The alternative basis on which the Attorney sought to justify the charges was to state that Mr Hall was the solicitor for the inspector. Even if that is established, for the reasons I have given the inspector was not entitled to delegate the formulation of the charges and the statements of facts and permit the charges to be laid without at least having approved them.

106 It was not suggested by the Attorney that this conclusion was inconsistent with the decision of this Court in R v Bacon [1973] 1 NSWLR 87. In R v Bacon, s 36 of the Obscene and Indecent Publications Act 1901 required prosecutions under that Act to be brought with the approval of the Minister. The Court held at 95 that the approval may be in completely general form. However, that may be distinguished from the present case where what is required is the institution of proceedings for an offence. The requirement that the institution of proceedings be by an inspector and that it be for an offence against the OH&S Act demonstrates, in my opinion, that what is required in s 106 is more onerous than the requirement to give approval considered in Bacon. What is of importance in Bacon is the statement by the Court at 96 that it is for the prosecution to prove the requisite authority. In my opinion the prosecution has not done so in the present case.

107 In these circumstances, the proceedings were not instituted by Inspector Walsh as required by s 106(1)(c) of the OH&S Act and, subject to the operation of s 16(2) of the CPA, it follows in my opinion that the charge was not properly brought. On that basis the primary judge was correct in dismissing the summons.

Were the applications and statements of facts required to be signed by Inspector Walsh?

108 Having regard to the conclusion I have already reached, it is not strictly necessary to consider this question. However, it is appropriate to consider whether the failure of Inspector Walsh to sign the applications and the statements of facts would render the charges invalid even if she had instituted the proceedings in the manner to which I have referred above.

109 The question is whether as a matter of construction the legislative intent exhibited by s 246(2) of the CPA in stating that an application for a person to appear to answer a charge must be in accordance with the rules, coupled with a requirement in r 26 that the application and statement of facts must be in the approved form, which as set out above provides for signature by the prosecutor, demonstrates an intention that a failure to do so is fatal to the validity of the application: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [91]-[98]; R v Janceski supra at [48]-[50]; Knaggs v Director of Public Prosecutions [2007] NSWCA 83; (2007) 170 A Crim R 366 at [32].

110 In R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 Bell J, with whom Simpson and Buddin JJ agreed, emphasised at [34] that the requirement that an indictment be signed by the person referred to in s 126 of the CPA was to ensure that proceedings were properly commenced by persons having authority to do so. Her Honour concluded that the absence of a signature by an authorised person on an indictment renders it invalid.

111 In R v Janceski supra, this Court held that an indictment signed by a person not authorised to do so by the CPA was invalid. Spigelman CJ at [97] indicated that the primary purpose of s 126 of the CPA was to ensure that the Office of the Director of Public Prosecutions, subject only to the Attorney General, would be in control of the process of instituting criminal proceedings on indictment and that that would be manifest to all parties in the proceedings. Wood CJ at CL at [205] emphasised that the indictment was the instrument by which the jurisdiction of the court to try an accused was invoked and was an essential procedural step. Howie J, with whom Hunt AJA and Johnson J agreed, emphasised at [232] that the presentation of an indictment was the most fundamental of the procedures that attend a criminal trial for an indictable offence. He concluded at [264] that if an indictment was signed by a person not authorised to do so, the signature was worthless and incapable of representing to the court that the prosecution was authorised by the Director or that it was regular. His Honour stated that it did not matter that the person who signed the indictment had been briefed to appear for the Director to prosecute the offence. He emphasised at [273] that s 126 of the CPA was not concerned with the statement of the charge.

112 Section 16(2) of the CPA had no application to the indictments that were considered in each of those cases.

113 The question which arises in the present case is whether the legislature intended strict compliance with s 246(2) of the CPA and r 26 in the case of summary proceedings. In John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508, an information was said to be defective for failing to identify the material particular in which a retailer's statement was alleged to be false or misleading and thus constituting a contravention of s 32(1) of the Consumer Protection Act 1969. At 519, the majority made the following comments concerning the function of the information:

"The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: 'an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence'..."(Citation omitted)

114 The majority held that in that case the provision of s 6(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (Summary Jurisdiction Act) (the equivalent to s 16(2) of the CPA) had nothing to say as to the invalidity of the information.

115 The question of whether it was mandatory that the prosecutor sign the applications and statements of facts in the sense the charges would otherwise be invalid depends upon the operation of s 16(2) of the CPA.

116 The requirement in s 246(2) of the CPA that the application to institute proceedings for an offence must be in accordance with the rules is to be read in context with what appears in s 16(2). The question in the present case is twofold. First, if the proceedings were not instituted by the prosecutor does s 16(2) apply to save them notwithstanding non-compliance with s 106(1)(c) of the OH&S Act? Second, if contrary to the views I have expressed the proceedings were instituted by the prosecutor, is the failure by the prosecutor to sign the applications and statements of facts a defect of form or substance to which s 16(2) can apply?

The effect of s 16(2) of the CPA in the present case

117 Section 16(2) must be considered in conjunction with s 17(2), s 20 and s 21 of the CPA, which respectively gives the court power to cause the indictment to be amended, to grant leave to amend the indictment or to amend the indictment to meet the circumstances of the case.

118 However, it is clear that not all defects in the charge can be saved by s 16.

119 The extent of the operation of s 16 of the CPA has generally been considered in the context of charges which were defective by virtue of the omission of an essential factual or legal element of the offence.

120 In Rockdale Beef supra, Spigelman CJ stated at [27] that s 16 did not apply to save a charge that omitted an essential legal element of an offence. However, Basten JA, with whom Mason P agreed, took a somewhat different view. His Honour, after citing Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261, made the following comments at [123]:

"[123] These remarks are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of 'amendment' itself may be inconsistent with such a conclusion. Accordingly, so long as a defect can be remedied by amendment, the informations are not 'void' in the sense that the 'defects cannot be removed by amendment or otherwise put aside', adopting the terminology of Mahoney JA in Boral Gas at 518C-D; 36-37, nor are the proceedings based on them a nullity."

121 In Doja v The Queen supra, the appellant was convicted of a number of counts of making a false statement to obtain financial advantage contrary to s 178BB of the Crimes Act 1900. He appealed on grounds including that the indictment in relation to two counts was defective in failing to allege knowledge or recklessness. Spigelman CJ emphasised at [3] that it is a fundamental principle of criminal law that an indictment must disclose an offence punishable by law. At [26] his Honour referred to the paragraph from the judgment of Basten JA in Rockdale Beef which I have set out above, emphasising the use of the word "necessarily" and stating that Basten JA was not considering the jurisdictional role of an indictment.

122 In John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 the statement of charge was said to be defective because it failed to identify the act or omission which constituted a contravention of s 8 of the OH&S Act. Spigelman CJ at [45], with whom Beazley JA agreed and Giles JA agreed with additional reasons, noted that the proceedings potentially raised the issue left open in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [30], namely, whether and how s 6(1) of the Summary Jurisdiction Act (the equivalent of s 16(2)) might affect the right to certiorari if an application to quash the charge was made prior to it being heard. After referring to s 246(2) of the CPA and r 217B of the Industrial Relations Commission Rules 1996 (the equivalent of r 26) he made the following comments at [47]:

"[47] These provisions constitute a direct route to the proposition that a failure to identify the nature of the offence constitutes jurisdictional error. An Application under s 246(1)(a) of the Criminal Procedure Act requires an accused to answer 'to the offence charged in the order'. Section 246(2) and r 217B, as noted, both use the word "must". The reasoning in Kirk gives these mandatory requirements specific content."

123 However, his Honour found the charge was not invalid and did not have to deal finally with the issue.

124 In GPI (General) Pty Ltd supra at [32]-[26] Hodgson JA, with whom Allsop P agreed, stated that whilst the High Court in Kirk supra decided that the requirement that a statement of offence in the case of omission under s 8 of the OH&S Act required identification of the measures that should have been taken to address the relevant risks, it did not decide this requirement displaced s 16(2) of the CPA or rule when particularisation had to occur. At [78]-[79], Basten JA adhered to the views he espoused in Rockdale Beef.

125 In Area Concrete Pumping Pty Ltd supra, I endeavoured to summarise the authorities and concluded that a failure to adequately particularise a charge will not, without more, render it a nullity as defects can be cured by amendment of the charge or subsequent particularisation, at least provided that the charge disclosed an offence known to law and that procedural unfairness had not occurred. I also concluded at [47]-[49] that this could extend to an inadequately described offence, but not one that does not disclose an offence known to law. Basten JA at [113] and Hoeben JA at [117] agreed with my reasoning on this issue.

126 None of these cases dealt with the issue the subject of this appeal. However, it does not seem to me that s 16(2) of the CPA can operate to validate a prosecution that has been instituted by a person without authority to do so. Such a failure is more than a defect in substance or in form. It is an unauthorised act which, in my opinion, is different to a defect contemplated by s 16. Further, it is incapable of amendment. The requirements of s 106 of the OH&S Act look to the institution of the proceedings. In my view, the amendment power in s 17(2) and s 21 of the CPA could not extend to deeming the proceedings to have been instituted by someone other than the person who in fact purported to institute them.

127 It therefore follows that s 16(2) of the CPA cannot operate in this case to save the charges.

128 However, I should add that my present view is that if Inspector Walsh had instituted the prosecution for the offences in the sense which I have described in par [90] above, the fact that the applications and statements of facts were signed by someone other than the inspector would not render them invalid. In those circumstances there would be compliance with s 106(1)(c) of the OH&S Act and there would be only a failure to comply with s 246(2) of the CPA and r 26. It seems to me that this would be a defect to which s 16(2) of the CPA could apply. The onus would be on the prosecutor to prove that an inspector instituted the proceedings, but once that was established there seems to me to be no procedural unfairness in concluding that the defect was one of substance or form within the meaning of s 16(2).

129 This conclusion is not inconsistent with R v Halmi supra or R v Janceski supra. Section 16(2) had no application to the indictment in those cases.

130 For these reasons the appeal should be dismissed. It is unnecessary to deal with the individual grounds of appeal as I have adopted the same approach as the Attorney and dealt compendiously with his submissions, both written and oral.

The notice of contention

131 Once again it is not strictly necessary to deal with this issue but having regard to the submissions made it is appropriate to do so.

132 I do not think that it is correct that this Court does not have the power to deal with the issue raised. It is true as the Attorney pointed out that this Court is a statutory court and its powers are limited to those conferred on it by the Criminal Appeal Act and by any other statute. It is also true as Hunt J pointed out in R v Beydoun supra at 264 that s 5C of the Criminal Appeal Act does not give this Court a general discretion to prevent the prosecution proceeding to trial.

133 However, that does not mean that if the summons was liable to be quashed on grounds other than those raised by the primary judge the Court would be unable to deal with them, particularly if those grounds were raised at first instance. It must be remembered that the appeal is against an order quashing the summons and if the summons should have been quashed on grounds other than those relied upon by the primary judge, then this Court in my opinion has the power to dismiss the appeal.

134 The absence of rules relating to the filing of a notice of contention does not affect the issue. The notice of contention provided for in r 50.11 of the Uniform Civil Procedure Rules 2005 is a convenient way of bringing the issue before the court. The absence of such a provision in the Criminal Appeal Rules does not affect the power of this Court to deal with the issue.

135 The charge and particulars in question were in the following terms:

"Description of Offence: Date of Offence: Place of Offence: Particulars (including, where applicable, the act or omission said to constitute the breach, and the risk relied upon): Statutory Provision Describing Offence: Law Part Code:

Built NSW Pty Limited [ACN 083 928 045] a corporation with its registered office situated at Level 1, 140 Myrtle Street, Chippendale in the State of New South Wales ('the defendant'), being an employer, on 27 May 2010, at 401-411 Sussex Street, Haymarket in the State of New South Wales ('the site') failed by its acts and/or omissions particularised in Annexure A (attached) to ensure the health, safety and welfare at work of persons other than its employees, and in particular Jamie Zonno and Joshua Jiminez contrary to section 8(2) of the Occupational Health and Safety Act 2000. 27 May 2010 401-411 Sussex Street, Haymarket NSW 2000 Attached as 'Annexure A' Section 8(2) Occupational Health and Safety Act 2000. 42015

ANNEXURE "A" - PARTICULARS FOR BUILTre ZONNO & JIMINEZ

(1) The Defendant was at all material times an employer.

(2) The Defendant's place of work was the site.

(3) The Defendant's undertaking at the site was that of principal contractor for the construction works taking place at the site.

(4) Due to the Defendant's failings as particularised below, Jamie Zonno and Joshua Jiminez were placed at risk of falling from height.

(5) In particular, Messrs Zonno and Jiminez were exposed to the risk of falling from a work area on top of the lift/fire stair over run on level 8 of the site referred to as the 'lift lid' whilst moving duct work onto the lift lid.

(6) The particulars of the acts or omissions of the Defendant are:

(a) The defendant failed to ensure the lift lid was made safe by secure perimeter screens, fencing, handrails or other forms of physical barriers that were capable of controlling the risk of Mr Zonno and/or Mr Jiminez from the lift lid;

(b) The Defendant failed to ensure Bravo Industries provided a safe work method statement which addressed the task of moving duct work onto the lift lid;

(c) The Defendant failed to ensure that Jamie Zonno and Joshua Jiminez were inducted into a safe work method statement relating to moving duct work onto the lift lid;

(d) The Defendant failed to ensure that Jamie Zonno and Joshua Jiminez were inducted into the safe way to go about the task of moving duct work onto the lift lid.

(e) The Defendant failed to provide any supervision of Bravo Payroll employees on 27 May 2010.

(7) As a result of the failures set out above, Jamie Zonno and Joshua Jiminez were placed at risk of injury.

The second summons and particulars attached as Annexure A were in similar terms in relation to a different individual, Mr Pulver.

136 The particulars to the summons identify that the respondent's place of work was at the site identified in the summons. It also indicates the manner in which Messrs Zonno and Jiminez were placed at risk and particulars of the acts and omissions alleged against the respondent.

137 The difficulty with each summons is they adopt the language of the opening words of s 8(1) of the OH&S Act, including the words "at work", in seeking to formulate a charge under s 8(2). That is why the primary judge at [55] believed that it was possible that the pleader intended to formulate a charge under s 8(1). For a charge alleging an offence under s 8(2) to be properly pleaded it would need to aver that persons other than employees of the respondent were exposed to risks to their health or safety arising from the conduct of the respondent's undertaking while at the respondent's place of work.

138 The summonses thus do not, in my opinion, disclose offences known to law. It is not a case where what has occurred is that an essential element has been left out which can be cured without procedural unfairness to the defendant: Rockdale Beef supra at [123]. Rather on its face, although expressed to be brought under s 8(2) of the OH&S Act, it pleaded the elements of an offence under s 8(1) of that Act which had no application to Messrs Zonno and Jiminez because as stated in the summons they were not employees of the respondent.

139 The particulars do assert that Messrs Zonno and Jiminez were exposed to risk of injury and to that extent meets the requirements of s 8(2) of the OH&S Act. However, the acts and omissions particularised against the respondent are equally applicable to a charge under s 8(1) as to a charge under s 8(2) of the OH&S Act. The same analysis also applies in relation to the second summons concerning Mr Pulver.

140 In these circumstances it seems to me that the deficiencies are so great that they do not plead a charge known to law as distinct from merely omitting or mispleading an essential element of the charge which could be cured by amendment or further particularisation. It follows that I do not think that the defects are ones to which s 16(2) of the CPA applies, nor ones which could be cured by amendment consistent with the authorities to which I have referred above.

141 I appreciate that as was stated in R v Boujaoude [2008] NSWCCA 35; (2008) 72 NSWLR 85 at [45], an indictment will not be a nullity if however misparticularised, it discloses an offence known to law. However, in the present case when each summons alleges one offence and does not plead the necessary elements but pleads matters relevant to a different offence, it does not seem to me that this approach can be adopted.

142 Further, I do not think this is case such as that considered by Dixon J in Broome v Chenoweth (1946) 73 CLR 583 at 601, where an offence is clearly indicated but in its statement there may be some slip or clumsiness which upon a strict analysis results in an ingredient of the offence not being the subject of a proper averment. For the reasons I have indicated, in my opinion, the defects in this case fall outside any such slip or clumsiness.

143 In these circumstances, in my opinion, each summons discloses no offence known to law and are not saved by s 16(2) of the CPA, nor are they capable of amendment pursuant to s 21 of the CPA.

Conclusion

144 In the circumstances the appeal should be dismissed.

145 BEAZLEY P: I agree with Bathurst CJ.

146 HOEBEN CJ at CL: I agree with Bathurst CJ.

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Decision last updated: 03 December 2013