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Court of Criminal Appeal 2 December 2013

Attorney General of New South Wales v Built NSW Pty Ltd

[2013] NSWCCA 299

Other
INDUSTRIAL LAW CRIMINAL PROCEDURE CRIMINAL PROCEDURE CRIMINAL PROCEDURE ACT 1986 S 246 DISTRICT COURT RULES 1973 PT 53 R 26 CRIMINAL PROCEDURE

Citation: Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299
Court: Court of Criminal Appeal
Date: 2 December 2013
Judges: Bathurst CJ (with whom Beazley P and Hoeben CJ at CL agreed)

Background

Two summonses were brought against a corporation (the respondent) alleging contraventions of s 8(2) of the Occupational Health and Safety Act 2000 (NSW), following a workplace incident at a Sydney construction site on 27 May 2010. The proceedings were initiated under s 246 of the Criminal Procedure Act 1986 (CPA), with Inspector Melinda Walsh named as the prosecutor in the applications and summonses.

The applications and statements of facts were not signed by Inspector Walsh. Instead, a solicitor acting for the prosecution signed both documents. The respondent moved to quash the summonses on two grounds: that the proceedings were not instituted by an authorised person, and that the summonses did not allege an offence known to law.

The primary judge (Curtis DCJ in the District Court) upheld the first ground and dismissed the summonses. The primary judge indicated he would not have upheld the second ground, as he considered the defects in the summonses capable of amendment. The Attorney General appealed against the first finding; the respondent filed a notice of contention challenging the primary judge's conclusion on the second ground.

  • Whether Inspector Walsh had in fact "instituted" the proceedings as required by s 106 of the OH&S Act, given that the solicitor, not the inspector, signed the application and statement of facts
  • Whether s 246 of the CPA and Pt 53 r 26 of the District Court Rules 1973 required the statement of facts to be signed by the inspector personally
  • Whether any failure to correctly institute proceedings could be validated by s 16(2) of the CPA
  • Whether the summonses disclosed an offence known to law, given alleged deficiencies in particularisation
  • Whether defects in the summonses were capable of being cured by amendment under s 21 of the CPA
  • Whether the Court of Criminal Appeal had jurisdiction to deal with the issues raised by the notice of contention

Decision

Institution of proceedings: Bathurst CJ found that the question of who "instituted" the proceedings required consideration of the acts taken to commence them under s 246 and the applicable rules. Rule 26(3) of Pt 53 of the District Court Rules required the statement of facts to be signed by "the prosecutor applying for an order under section 246." That requirement, properly construed, meant the inspector (not a solicitor acting on her behalf) needed to sign the statement of facts. Because the solicitor had signed rather than the inspector, the proceedings had not been instituted by an inspector as required by s 106 of the OH&S Act.

Validation under s 16(2) CPA: The Court rejected the Attorney's submission that s 16(2) of the CPA saved the defective proceedings. Section 16(2) operates to prevent a charge from being held bad or insufficient where an essential averment is omitted or imperfect. The Court found it did not extend to curing a failure to comply with the mandatory precondition in s 106 of the OH&S Act governing who may institute proceedings in the first place.

Adequacy of the summonses: The Court of Criminal Appeal accepted it had jurisdiction to consider the notice of contention. Turning to the substance, Bathurst CJ found the summonses were fundamentally defective. Although expressed as charges under s 8(2) of the OH&S Act, the particulars pleaded in Annexure A were equally applicable to an offence under s 8(1), a provision directed at an employer's own employees. The individuals named in the summonses were not employees of the respondent, making s 8(1) inapplicable. The deficiencies went beyond misdescription or clumsiness: the summonses did not plead the elements of the offence charged and could not be saved by s 16(2) or cured by amendment under s 21 of the CPA.

Overall outcome: All three judges agreed the appeal should be dismissed. Both grounds for quashing the summonses were ultimately upheld, though on slightly different reasoning from the primary judge in relation to the second ground.

Orders Made

• The appeal should be dismissed

Key Takeaways

  • Under s 106 of the OH&S Act 2000 (now repealed), proceedings could only be instituted by specific persons, including inspectors. Where a solicitor signed the application and statement of facts in place of the named inspector, the requirement was not satisfied and the proceedings were not validly commenced.

  • Rule 26(3) of Pt 53 of the District Court Rules 1973 required the statement of facts to be signed by the prosecutor personally. The definition of "prosecutor" in s 3 of the CPA, which includes a legal practitioner representing the prosecutor, did not displace this requirement in the context of s 246 proceedings under the OH&S Act.

  • Section 16(2) of the CPA is a provision directed at defects in the formulation of charges. It does not validate a failure to comply with a statutory precondition governing who may institute proceedings.

  • A summons that nominally charges an offence under one provision but pleads particulars that are equally or more applicable to a different offence does not disclose an offence known to law. This is a more fundamental defect than a mere misdescription or omitted averment, and cannot be remedied by amendment.

  • In dismissing the appeal, the Court confirmed that the Court of Criminal Appeal has jurisdiction under s 5C of the Criminal Appeal Act 1912 to consider issues raised by a notice of contention, even where those issues go beyond the grounds of the appeal itself.

Legislation and Cases Referenced

Legislation:
- Occupational Health and Safety Act 2000 (NSW), ss 8, 91, 93, 106
- Criminal Procedure Act 1986 (NSW), ss 3, 11, 12, 15, 16, 17, 20, 21, 126, 246
- Criminal Appeal Act 1912 (NSW), s 5C
- District Court Rules 1973, Pt 53 r 26

Cases:
- Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
- John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508
- R v Boujaoude [2008] NSWCCA 35; (2008) 72 NSWLR 85
- Broome v Chenoweth (1946) 73 CLR 583
- Area Concrete Pumping Pty Ltd v Inspector Childs [2012] NSWCA 208; (2012) 223 IR 86
- John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82
- GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93
- Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76; (2007) 69 NSWLR 507
- Garrett v Freeman [2006] NSWCCA 278; (2006) 68 NSWLR 729