Citation: Attorney General of New South Wales v Air Conditioning Engineering Services Pty Ltd [2013] NSWCCA 300
Court: Court of Criminal Appeal, NSW
Date: 2 December 2013
Judge(s): Bathurst CJ; Beazley P; Hoeben CJ at CL
Background
The Attorney General of New South Wales appealed under s 5C of the Criminal Appeal Act 1912 against a District Court decision dismissing two summonses against Air Conditioning Engineering Services Pty Ltd (the respondent employer). The summonses alleged contraventions of s 8(2) of the Occupational Health and Safety Act 2000, arising from incidents at a construction site in Haymarket on 27 May 2010 in which non-employees were exposed to the risk of falling from height.
The proceedings had been authorised in the name of Inspector Melinda Walsh. However, the applications and statements of facts were signed not by Inspector Walsh but by a person named David Hall. Inspector Walsh's affidavit did not state that she had determined to institute the particular proceedings, instructed Hall to make the applications, approved them, or was even aware that Hall would make them.
The primary judge dismissed both summonses. This appeal, heard alongside a companion matter involving a related respondent (Built NSW Pty Ltd), raised identical issues about the validity of the institution of proceedings and the sufficiency of the charges.
Legal Issues
- Whether the proceedings were validly instituted, given that the applications and statements of facts were signed by a person other than the named inspector
- Whether the applications and statements of facts complied with s 246(2) of the Criminal Procedure Act 1986 and Part 53 r 26 of the District Court Rules 1973, both of which required the documents to be signed by the prosecutor
- Whether the failure to correctly institute proceedings could be saved by s 16(2) of the Criminal Procedure Act 1986
- Whether the summonses disclosed an offence known to law, given alleged deficiencies in particularisation
- Whether the Court of Criminal Appeal had power, on a notice of contention filed by the respondent, to consider grounds beyond those raised by the appellant
Decision
The Court of Criminal Appeal dismissed the appeal, applying the same reasoning it delivered on the same day in the companion matter, Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299. Bathurst CJ, with whom Beazley P and Hoeben CJ at CL agreed, treated the issues as identical across both matters and resolved them accordingly.
On the notice of contention filed by the respondent, Bathurst CJ found that the charges in this matter suffered from the same deficiency identified in the Built proceedings. The summonses failed to disclose any offence known to law. This was an additional and independent basis for setting aside the summonses, separate from the grounds on which the primary judge had dismissed them.
The Court confirmed that the defects were not ones to which s 16(2) of the Criminal Procedure Act 1986 could apply to validate the proceedings. The summonses were therefore liable to be set aside on both the grounds accepted by the primary judge and the additional ground raised in the notice of contention.
Orders Made
• The appeal should be dismissed.
Key Takeaways
- The Court of Criminal Appeal confirmed that proceedings under the Occupational Health and Safety Act 2000 must be instituted by a person authorised to do so, and evidence that the named inspector determined to bring the particular charges is required to establish that the proceedings were validly instituted.
- Where the applications and statements of facts are signed by a person other than the named inspector, and the inspector's affidavit does not establish that she authorised, instructed, approved, or was even aware of the applications, the onus on the prosecutor to prove valid institution of proceedings is not discharged.
- Under s 246(2) of the Criminal Procedure Act 1986 and Part 53 r 26 of the District Court Rules 1973, compliance with signature requirements is not a mere formality: failure to comply goes to the validity of the proceedings rather than constituting a curable irregularity.
- Section 16(2) of the Criminal Procedure Act 1986 does not operate to validate proceedings that were not correctly instituted in the manner required by the relevant legislation and rules.
- Summonses that fail to disclose an offence known to law cannot be saved by amendment and provide an independent basis for dismissal, in addition to any defects in the institution of proceedings.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5C
- Criminal Procedure Act 1986 (NSW), ss 3, 16, 246
- District Court Rules 1973 (NSW), Pt 53 r 26
- Occupational Health and Safety Act 2000 (NSW), s 8(2)
Cases
- Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299
- John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82