Inspector Mansell v Robert Josef [2003] NSWIRComm 339 (14 October 2003)

Last Updated: 27 October 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Mansell v Robert Josef [2003] NSWIRComm 339

FILE NUMBER(S): IRC 5484, IRC 5485, IRC 5486, IRC 5487, IRC 5488, IRC 5489

HEARING DATE(S): 15/09/2003, 16/09/2003, 17/09/2003, 18/09/2003, 19/09/2003, 07/10/2003, 08/10/2003, 09/10/2003, 10/10/2003

DECISION DATE: 14/10/2003

PARTIES:

WorkCover Authority of New South Wales (Inspector Mansell)

Robert Josef

JUDGMENT OF: Curtis AJ

LEGAL REPRESENTATIVES

Prosecutor: Mr M J Joseph SC with Mr P M Skinner

Solicitor: Moray and Agnew

Defendant: Mr J R Young

Solicitor: James Legal

CASES CITED: R v Board of Trustees of the Science Museum [1993] 3 All ER 853

Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437

Pearce v The Queen (1998) 194 CLR 610

Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363

Byrne v Baker [1964] VR 443

Chugg v Pacific Dunlop Ltd [1988] VR 411

Connelly v DPP [1964] 2 All ER 401

EPA v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502

Stanton v Abernathy (1990) 19 NSWLR 656

Li Wan Quai v Christie (1906) 3 CLR 1125

R v Elrington (1861) 1 Bonds 688

R v Dodd (1991) 56 A Crim R 451

R v Thomas [1950] 1 KB 26

SPCC v Tallow Products Pty Ltd (1992) 29 NSWLR 517

Morrison v New England Antimony Mines NL [2003] NSWIRComm 194

Australian Oil Refining Pty Ltd v Cooper (1989) 11 NSWLR 277

Parramatta City Council v Stauffer Chemical Company (Aust) Pty Ltd [1971] 2 NSWLR 500

R v O'Loughlin (1971) 1 SASR 219

Rogers v The Queen (1994) 181 CLR 251

Collins v Murray (1989) 1 Qd R 614

R v Mai (1992) 26 NSWLR 371

R v De Simoni (1981) 147 CLR 383

Crown in Right of NSW (Department of Education and Training) v Keenan [2001] 105 IR 181

LEGISLATION CITED: Occupational Health and Safety Act 1983

JUDGMENT:

- 16 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: CURTIS AJ

Date: 14 October 2003

Matter No IRC 5484-5489 of 1999

WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSP MANSELL) v ROBERT JOSEF

Prosecutions under section 50(1) of the Occupational Health and Safety Act 1983

RULING ON APPLICATION

[2003] NSWIRComm 339

INTRODUCTION

1 Robert Josef, a director of Josef and Sons Contracting Pty Ltd, is charged pursuant to s50(1) of the Occupational Health & Safety Act 1983, with six contraventions of that Act arising out of events leading up to an explosion at Kogarah on 4 December 1995.

2 The prosecution case having closed, he seeks orders: (1), that charges 5484 and 5485 be dismissed because the evidence discloses no case to answer; and (2), that the prosecutor be put to an election as to which of the remaining charges he wishes to pursue, and that the other charges be stayed.

3 A short statement of the evidence is necessary in order that these proceedings be understood.

THE EVIDENCE

The Event

4 At approximately 2pm on Monday 4 December 1995, a violent explosion burst through the glass front of the Family Amusement Zone games parlour in Railway Parade, Kogarah.

5 As a result of this explosion, Mina Barkhoum and Gregory Maybury sustained burns so extensive as to cause their death. At least 16 other persons suffered burns and lacerations.

6 The horror of the moment, and the gravity of any criminal conduct involved, is captured by the evidence of Mr J Hatzikiriakos the proprietor of the adjacent Oasis Seafood Cafe, who ran into the street when he heard the explosion:

It was terrible. The first person I saw, it was a young man come into my restaurant, blood coming out of his body and there were blue flames in him, and I raced out and I tried to tear his clothes off, but he was running away and he was running so fast and I couldn't catch up with him, and then I turned around to help some more and it was my daughter on the floor, and I picked her up, put her in a taxi and I went to the hospital. (Transcript page 334 line 17)

7 The explosion occurred because some time after 1pm that day, Mr Robert Campbell, an employee of Josef and Sons Contracting Pty Ltd, operating a mechanical excavator on a demolition site 15 metres to the north, snagged a length of charged gas pipe and pulled it free from its seat in an elbow under the pavement in front of the Family Amusement Zone. Escaping gas, at a pressure of 210 kilopascals, then percolated into the games parlour where it was ignited, probably by the electrical operation of an amusement machine.

The Contracts

8 On 18 October 1995, Abigroup Contractors Pty Limited (Abigroup) contracted with the State Rail Authority to perform certain works so as to improve the amenity of the Kogarah Railway Station. Part of those works involved the demolition of three shops standing between Railway Parade and the railway line immediately to the south of the eastern entrance to the station. The ground upon which they stood was to be transformed into a pedestrian plaza.

9 On 8 November 1995 Abigroup, by facsimile, accepted an offer made the previous day by Josef & Sons Contracting Pty Limited to demolish the shops and remove the paving blocks from the footpath in front of them together with some ancillary work, for $84,000. The acceptance was conditional upon receiving details of current insurance cover and a method statement for approval by WorkCover. This method statement was provided at some time prior to 10 November 1995, under the letterhead of Josef & Sons Pty Limited.

10 Pursuant to the method statement, the subcontractors undertook to carry out the works in strict compliance with Australian Standard 201-1991, "Demolition of Structures". Clause 1.7.2.3(a) of this Standard required that a demolisher identify the type, location and extent of any underground service. In clause 1.2(a) of Appendix 1 of the Standard, a demolition checklist suggested that the demolisher identify "any or any potentially hazardous ... condition". Clause 1.3 suggested that the demolisher "identify and locate supply mains (water, electricity, gas) and the extent of reticulation". (Emphasis added)

11 The method statement itself asserted that "all services will be terminated prior to any demolition work commencing".

The Site

12 Commencing some 6 metres south of the station entrance the shops comprised, from the north, a fruit market (number 3 Railway Parade), a fish shop (number 7) and a gift shop (number 9), and extended over a frontage of approximately 22 metres (exhibit J2, tab 4, plan 960-084).

13 To the south of the shops to be demolished remained - again in order from the north - the Mei Yee dress shop (number 11), the Family Amusement Zone (number 13), a tobacconist (number 15) and the Oasis Seafood Cafe (number 17). The northern wall of the Mei Yee dress shop constituted the southern boundary of the works.

The Gas Line

14 The fish and chip shop, number 7, was connected to a gas supply. The underground gas line servicing this connection originated to the east of Railway Parade, crossing that road at right angles in an east west direction, to a point approximately 1.2 metres from the east face of the Family Amusement Zone, and 5 metres south of the southern boundary of the demolition site.

15 A right angle elbow joint there directed the service line under the footpath, north along Railway Parade for a distance of approximately 15 metres along the face of the Mei Yee dress shop, into the demolition site, past the gift shop, to a position directly in front of the fish shop.

16 A further right angle elbow directed the service into the fish shop. This gas supply line did not extend beyond that shop. The service line in front of the fish shop was approximately 40 to 50 centimetres below the paving blocks which were to be removed.

The Involvement of Josef and Sons Contracting Pty Ltd and The Defendant

17 Robert Josef carried on a business in the demolition industry through the agency of two corporations, Josef & Sons Pty Limited, which company owned most of the plant, and Josef & Sons Contracting Pty Limited, which entered contracts to perform the work. Mr Josef was a director of each company and regularly visited the Kogarah site.

18 On 1 November 1995 Mr Robert Josef and Mr Luis Bustamante, the site manager, and Mr Maurice Bolger, the project manager - both employed by Abigroup - attended upon the site with the relevant plans. They discussed the scope of the works, the boundaries of the works at which hoardings were to be erected, and disconnection of services, including gas, electricity and water. At this meeting Mr Josef was asked to provide a method statement.

19 On or about 8 November 1995 Josef & Sons Contracting Pty Limited occupied the site and commenced the works by the erection of hoardings and provision of amenities. On Friday, 10 November 1995, Mr John Princi, an employee of AGL, at the telephone request of Daniel Josef, a project manager employed by Josef & Sons Contracting Pty Ltd, disconnected the gas service to the fish shop at number 7 Railway Parade.

20 He did this by unearthing and temporarily clamping the gold-coloured flexible plastic gas pipe, cutting the pipe on the shop side of the clamp, and fixing a red plastic cap to the cut end before releasing the clamp. The cap was fixed approximately 1.5 metres from the elbow joint which directed the service line into the premises.

21 Significantly, neither Mr Daniel Josef nor anyone else from Josef and Sons Contracting Pty Limited arranged to meet Mr Princi to advise him of the scope of the works, or to arrange that the gas supply be disconnected at a place remote from the site. No-one then marked the route of the charged gas line from that point at which it entered the demolition site level with the northern wall of the Mei Yee dress shop, to where it ended at the cap.

22 The demolition works commenced on Monday 13 November 1995. The awnings of the shops were first removed and then the internal fittings. By Tuesday 21 November, only the outer brick walls of the shops were standing. The demolition of those walls was sublet by Josef & Sons Contracting Pty Ltd to Reid's Demolitions, and on that day Mr Alfred Begg, an employee of Reid's, attended upon the site with a 6-tonne tracked excavator to effect further demolition.

23 Over the next three and a half days Mr Begg demolished, first, the walls and then the concrete floors and footings of the shops. He operated initially from the pavement at street level, east of the shops, and then, after traversing a ramp he built from demolition spoil at the south end of the site, from the lower western railway boundary of the site. As he worked, the spoil was loaded by bobcat into trucks and taken away. By Friday 24 November his work was completed.

24 Employees of Josef & Sons Contracting Pty Ltd next removed the paving blocks of the footpath in front of the former building alignment. In the course of this work, the capped section of yellow plastic gas line that formerly serviced the fish shop was exposed. A star picket, dressed with coloured plastic bunting, was driven into the ground at that spot by Mr Christopher Stoeski, the foreman employed by Josef & Sons Contracting Pty Ltd. No other measure was taken to mark the route of the gas line over the site to that point, or to cut the supply at a place remote from the site. Thereafter, heavy vehicles crossed the ramp constructed by Mr Begg, passing 300 to 500mm above the charged gas line, subjecting that line to vibration and possible damage.

25 On 4 December 1995 that work which remained outstanding was the clearing of rubbish and the construction of a batter. The ground upon which the shops had been constructed sloped in a westerly direction from Railway Parade down to the railway line. Removal of the buildings revealed a vertical face slightly more than one metre high along the eastern edge of the excavation. Safe practice required that the dangers posed by this drop be eliminated by transformation of this face into a sloping batter at 45 degrees from the vertical.

26 The usual method of doing this was that the operator of a mechanical excavator would cut into the earth at the top of the bank and transfer that earth to the bottom before tamping it with his bucket to mould the formerly vertical profile into one that sloped at the required angle.

27 The prosecution alleges that at about 1pm on Monday 4 December Mr Robert Campbell, an employee of Josef & Sons Contracting Pty Ltd, was directed by his foreman, Christopher Stoeski, to construct the batter.

28 Mr Campbell approached his task with his excavator at the top of the bank facing southwards, drawing the bucket toward him to fill it before slewing and depositing the fill at the base of the earth wall. At some time in the course of the work, the retracting tines of the bucket struck with force the transverse capped section of the gas pipe, which operated as a hook or purchase. Because the nearby elbow remained fast, the excavator pulled the longitudinal section of pipe from its seat 15 metres away in the elbow joint below the front of the Family Amusement Zone, permitting the escape of gas which later ignited.

The Charges

29 Summons 5484 charges that Robert Josef was, on 10 November 1995, a director of Josef & Sons Contracting Pty Limited which, on that day at Kogarah, contravened s15(1) of the Occupational Health & Safety Act 1983, in that it failed to ensure the health and safety of employees of Josef & Sons Contracting Pty Ltd.

Summons 5485 charges that Robert Josef was, on 10 November 1995, a director of Josef & Sons Contracting Pty Limited which, on that day at Kogarah, contravened s16(1) of the Occupational Health & Safety Act in that it failed to ensure the health and safety of persons not being employees of Josef & Sons Contracting Pty Limited.

Summons 5486 charges that Robert Josef was, between 10 November 1995 and 4 December 1995, a director of Josef & Sons Contracting Pty Limited, which company, between those dates, at Kogarah, contravened s15(1) of the Occupational Health & Safety Act 1983, in that it failed to ensure the health and safety of its employees.

Summons 5487 charges that Robert Josef was, between 10 November 1995 and 4 December 1995, a director of Josef & Sons Contracting Pty Limited which company, between those dates, at Kogarah, contravened s16(1) of the Occupational Health & Safety Act 1985, in that it failed to ensure the health and safety of persons not in its employment.

Summons 5488 charges that Robert Josef was, on 4 December 1995, a director of Josef & Sons Contracting Pty Ltd, which company, on that date, at Kogarah, contravened s15(1) of the Occupational Health & Safety Act 1983, in that it failed to ensure the health and safety of its employees.

Summons 5489 charges that Robert Josef was, on 4 December 1995, a director of Josef & Sons Contracting Pty Limited which company, on that date, at Kogarah, contravened s16(1) of the Occupational Health & Safety Act 1983, in that it failed to ensure the health and safety of persons not in its employment.

30 To further summarise, the prosecution has laid two charges, one pursuant to s15(1) and one pursuant to s16(1), in respect of each of three periods. Charges numbered 5484 [s15(1)] and 5485 [s16(1)] relate to the events of 10 November 1995 when the gas supply was disconnected at a place within the proposed demolition site.

31 Charges 5486 [s15(1)] and 5487 [s16(1)] relate to the events occurring between 10 November 1995 and 4 December 1995, when demolition work was carried out.

32 Charges 5488 [s15(1)] and 5489 [s16(1)] relate to the events of 4 December 1995 when the gas line was dislodged by the excavator.

33 Each pair of charges, (5484 and 5485), (5486 and 5487) and (5488 and 5489), is drawn in identical terms and the prosecutor concedes that precisely the same acts and omissions are relied on in each case to found prosecutions brought pursuant to s15(1) and s16(1).

34 The six charges, otherwise, have much in common. Charges 5484 and 5485 (10 November 1995), allege that Josef and Sons Contracting Pty Ltd failed to ensure that the relevant persons were not exposed to risks to health and safety in that it:

(i) Failed to take adequate steps to ensure the cutting off of a capped gas supply line, which was charged, was effected in a position which was safe and without risks to health;

(ii) Failed to take adequate steps to ensure that no gas supply lines charged with gas were situated in areas where construction work was to be performed;

(iii) Failed to provide and maintain a system of work for the adequate protection, identification and warning of the existence of gas supply lines which remained charged in a construction area;

(iv) Failed to provide and maintain a system for performing work that was safe and without risks to health in an area where a charged gas supply line was situated;

(v) Failed to maintain the Kogarah Station Upgrading (KSU) in a condition which was safe and without risks to health, in that a charged gas supply line was located at a workplace

(a) within one metre of a building to be demolished;

(b) that was not adequately protected or identified;

(c) where earthmoving machines were to be operated;

(vi) Failed to take such steps as were necessary to make available to persons engaged in work at the KSU adequate information about the:

(a) location of the charged gas supply line;

(b) risks associated with work close to a charged gas supply line;

(c) type of work that might be carried out adjacent to the charged gas supply line

35 Charges numbers 5486, 5487, 5488 and 5489 (10 November 1995 to 4 December 1995 and 4 December 1995), allege failure in precisely the same terms with the additional allegation that Josef and Sons Contracting Pty Ltd:

Failed to make arrangements for ensuring safety and absence of risks to health in connection with the use of an excavator in an area where a charged gas supply line was located.

36 I fail to see any difference in substance between this allegation and the allegations contained within (iv) and (v) of the particulars to summons numbers 5485 and 5486; i.e. that the defendant failed to provide and maintain a safe system of work in an area where a charged gas line was situated, (particular iv), and failed to maintain the site in a safe condition in that a charged gas supply line was located where earthmoving machines were to be operated (particular v (c)).

37 The similarities do not end there. Further particulars to each of the six proceedings (differently numbered in each charge) charge that:

1. The Company failed to adequately protect the charged gas supply line on the KSU.

2. The Company failed to adequately identify the charged gas supply line on the KSU.

3. The Company failed to adequately mark the charged gas supply line on the KSU.

4. The Company failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety.

5. The Company failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement.

38 Charges 5484 and 5485 (10 November 1995) additionally particularise:

7. The Company failed to have appropriate persons at the KSU to liaise with Princi concerning the disconnection of the gas supply line.

8. The Company took no steps to remove a charged gas supply line from a construction area where earthmoving machines were to be operated. (emphasis added)

39 Charges 5486 and 5487 (10 November to 4 December 1995) additionally particularise:

11. The Company took no steps to remove a charged gas supply line from a construction area where earthmoving machines were operated. (emphasis added)

12. The Company failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line.

40 Charges 5488 and 5489 (4 December 1995) additionally particularise:

14. The Company did not prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU.

15. The Company failed to prevent the operation of earthmoving machinery on the construction area close to the charged gas supply line.

41 The gist or gravamen of each charge is that Josef & Sons Contracting Pty Limited failed to ensure that the gas supply line was cut off at a point remote from the site and then carried out demolition and excavation work on the site, failing to either adequately mark the position of the charged gas line, or to protect it from damage.

42 The fundamental failures to ensure the health and safety of persons, both employees and non-employees, about the workplace are pleaded in near identical terms in each summons as set out above, in respect of the whole of the period from 10 November 1995 to 4 December 1995.

DEFENDANT'S SUBMISSIONS

No Case to Answer

43 Mr Young for the defendant submits that because there was no risk to health to any person on 10 November 1995 there was no case to answer on charges 5484 and 5485.

44 It is quite obvious that the conduct of demolition works and excavations upon the site through which passes a charged gas line, creates a risk to persons on or about the site if adequate steps are not taken to guard against the danger. It is possible, however, to conceive of circumstances where it may be impracticable to interrupt the flow of gas through a supply line passing within a demolition area to some essential service. In that case, safety could only be ensured by perhaps the use of hand-held tools, and a 24 hour monitoring of both the site and the nearest cut-off valve.

45 The instant case is not such a case. The charged gas line had no purpose. It led nowhere. The intention of Josef & Sons Contracting Pty Ltd was that heavy earthmoving machines operated on the site. In Mr Young's submission, the intention held on 10 November 1995 did not perfect the offence of failing to ensure the site was, on that day, safe and without risks to health.

46 An offence against s15 or s16 occurs when a defendant, being an employer, conducting an undertaking at a place of work there exposes an employee or a non-employee to risks to their health and safety "while they are at" that place of work.

47 Mr Young submits that each element of the offence must exist concurrently in order that an offence be disclosed. It would not, for instance, be sufficient to found a prosecution for contravention of s16 that a defendant, on a particular day, at premises from which he intended to conduct an undertaking after engaging employees, there exposed non-employees to a risk.

48 There is no evidence that at midnight on 10 November 1995 any demolition or excavation work had commenced. The charged gas line then lay safely buried beneath the footpath where it had rested for many years. It posed no risk to the health of anyone. It is only when the surface above the gas line was disturbed on or about 21 November 1995 that there was any risk to health, notwithstanding the earlier intention of Josef & Sons Contracting Pty Ltd to bring about that risk.

49 Mr Joseph SC for the prosecution, in answer to these submissions, relies upon the decision of the English Court of Criminal Appeal in R v Board of Trustees of the Science Museum [1993] 3 All ER 853. The court there held the defendant liable to conviction for the offence of contravening s3(1) of the Health and Safety at Work (etc) Act 1974, a section in similar terms to s16 of the Occupational Health & Safety Act 1983, because the Legionnaire's disease bacteria was found in the water of its airconditioning towers. The court rejected the defence that the prosecutor had failed to prove any of the bacteria had actually escaped into the surrounding air so as to create actual and present danger to the public.

50 The judgment of Steyn LJ at 858 illustrates his reasoning:

The critical question of interpretation is as follows. Was it enough for the prosecution to prove that there was a risk that LP [the bacteria] might emerge, or did the prosecution have to go further and show that LP did in fact emerge into the atmosphere and was available to be inhaled? Mr Carlisle QC for the prosecution illustrated the problem with a simple example. Imagine, he said, a loose object on a roof near a pavement. In case A the loose object is in a position in which it might fall off and hit a pedestrian. In that case there is a mere risk. In case B the object in fact falls and exposes pedestrians to actual danger. In case C the object falls and causes actual injury to a pedestrian. The prosecution submits that exposure to risk in case A constitutes a prima facie case under s3(1). The defence submits that s3(1) only covers cases B and C.

The starting point must be the ordinary meaning of the language of s3(1). In our judgment the interpretation of the prosecution fits in best with the language of s3(1). In the context the word "risks" conveys the idea of a possibility of danger.

51 To my mind, this case is to be distinguished on its facts. Bacteria were, on the days of the offence, readily dispersible in the ordinary course of events by natural forces of weather. Similarly, loose objects on roofs may, on any particular day, come to fall in the ordinary course of events and constitute a present risk on any particular day, in the absence of human agency.

52 In the present case the gas line, as it rested on 10 November 1995, could not have been, on that day, dislodged to the risk of health in or about the proposed demolition site by the natural course of events. Nevertheless, the evidence does establish that, by its omissions of 10 November 1995, Josef & Sons Contracting Pty Limited failed to ensure the health and safety of employees and non-employees, in contravention of s 15(1) and s16(1) of the Act. The only question relevant to the present application by the defendant is when did that offence occur.

53 I am of the opinion that the offence is constituted by the act or omission creating a risk which may come home at a later point of time. The element of the risk is to be related to the prohibited act or omission causally, rather than temporally.

54 The heart of the present dispute is to be found in the pleading. The prosecutor must plead every ingredient of the offence, including those facts or circumstances from which it may be concluded the act or omission of the defendant caused the risk.

55 In relation to summonses 5484 and 5485, concerning events of 10 November 1995, it is necessary that the prosecutor plead not the possibility of, or intention to perform demolition activities after that date, but the fact of those activities. This the present charge fails to do.

56 Because all of the ingredients of the offence have emerged in evidence, including the fact of demolition work by which the omissions of 10 November 1995 caused actual risk to health, the prosecutor should have leave to amend the particulars to accord with the offence which has been made out (Leotta v Public Transport Commission (NSW) (1976) 9 ALR 437).

Oppression or Double Jeopardy

57 Upon the prosecution case, Josef & Sons Contracting Pty Ltd engaged in a continuous course of criminal conduct on and from 10 November, extending to 4 December 1995. If that conduct were to be reduced to discrete acts and omissions over a period of two weeks, hundreds of isolated acts involving different days, different machines and different activities, would each found a separate prosecution for contravention of s15 and s16 of the Occupational Health & Safety Act 1983.

58 The present charges are obviously duplicitous and the prosecution has led evidence of many contraventions of s15 and s16 of the Occupational Health & Safety Act 1983, by Josef & Sons Contracting Pty Ltd, in the relevant period. Although he seeks only six convictions Mr Joseph SC for the prosecution, relying on Leotta v Public Transport Commission (NSW) ((1976) 9 ALR 437), contends that he may now tease out, from all of the evidence, the evidence necessary to support a conviction on any one or more of the charges.

59 Mr Young, for the defendant, objects because, as he says, if one conviction is entered upon the basis of all of the evidence, and a penalty imposed taking all of that evidence into consideration, the prosecution of the remaining charges is vexatious and oppressive because the defendant is then at peril of being punished twice for the one course of conduct.

APPLICABLE PRINCIPLES

60 Where a person has been convicted and punished for an offence under the Occupational Health & Safety Act 1983, further prosecution and punishment in respect of substantially the same facts or the same course of conduct may be oppressive. Relief from such oppression may be ordered at successive stages of the legal process by the following mechanisms (see generally Kirby J in Pearce v The Queen (1998) 194 CLR 610, 637 to 650).

The Discretion of Prosecutors

61 It is the duty of the inspector appointed pursuant to Division 4 of Part 3 of the Occupational Health & Safety Act 1983 to frame criminal charges so as to prevent oppression and unfairness. Fisher CJ pointed out in Boral Gas (NSW) Pty Limited v Magill ((1995) 58 IR 363 at 367 to 368) that:

Most accidents have multiple causation ... the device of bringing the central allegations together under one count under section 15 is inherent in the structure of the Act itself and the long history of industrial litigation ... it has long been the practice to avoid a multiplicity of actions and to note the double jeopardy provision [section 34] ... and what it seems to infer.

62 Although His Honour’s was a minority view on the law, (Hill and Hungerford JJ following Byrne v Baker ([1964] VR 443), were of the opinion that s15 did not create the one offence of failing to maintain a safe environment, but rather separate offences each constituted by an identifiable act or omission in breach of the general duty), Fisher CJ, a pragmatic judge of great experience, may be taken to be referring to the established practice of prosecutors at the time.

63 Of particular relevance to the inspector's duty in framing charges are the provisions of s49A of the Act in the following terms:

(1) More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

(2) This section does not authorise contraventions of 2 or more of those sections to be charged as a single offence.

(3) A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence.

64 The enactment of s49A in 1997 appears to be the legislative response to the majority judgment in Boral v Magill for the purpose of avoiding uncertainty by claims of pleading duplicity. In his second reading speech to the bill, the Honourable J Shaw, Attorney-General and Minister for Industrial Relations said:

To assist in prosecutions of offences under the Act, the bill gives prosecutors the option of charging several breaches of one of the general duties as a single offence if they arose out of the same factual circumstances. For example, a serious incident at work, at a workplace, may involve a breach of the employer's general statutory obligation to provide a safe and healthy workplace in several respects; such as failure to provide training, failure to set up safe systems of work, failure to ensure equipment is safe, failure to provide personal protective equipment to workers, and failure to provide adequate supervision. Under the existing case precedents, it is unclear if each of these related contraventions would have to be charged as a separate breach of section 15 of the Act, which would complicate court proceedings and lead to much repetition of the factual circumstances of the incident.

The new procedure will allow for simplified proceedings, where all the breaches which arise from the same factual circumstances can be charged as a single offence ... the test for similarity in breaches - that they must arise from the same factual circumstances - is not intended to be overly technical or restrictive.

65 The language of the Minister, that the test for the similarity of breaches which may be included in the one summons prosecution is not intended to be "overly technical or restrictive", mirrors that of McHugh, Hayne and Callinan JJ in Pearce v The Queen ((1998) 194 CLR 610 at 623) that “Excessive subtleties and refinements must be avoided” in the application of the criminal law.

66 Where several offences are alleged to arise out of a course of conduct, and it is only by the use of "overly technical and restrictive language" that they may not be seen as arising out of the same factual circumstances, then, as a general rule, they ought to be charged as a single offence. Such an exercise of executive discretion is necessary in order that the criminal process conform with the community's sense of what is right and just.

67 The legislature has fixed a maximum penalty for each conviction of s15 or s16 of the Act. It is only through accidents of legal history, statutory language, and the judicial policy of imposing clarity in pleading, that the nature of the offence under s15 has been interpreted as referable to identifiable acts and omissions, rather than a general characterisation of conduct allowing an unsafe circumstance to exist (see Byrne v Baker; Chugg v Pacific Dunlop Ltd, [1988] VR 411; Boral v Magill).

68 In this regard s15 may be contrasted with s16 in which "several risks and several causes of risks each to different persons or groups of persons will establish only one contravention of the section" per Hill J in Boral v Magill.

69 The relevant judicial policy has been driven by concern that defendants facing charges of contravening s15 are afforded procedural fairness by knowing precisely what is alleged against them (See Byrne v Baker at 452). The legal rules developed in consequence ought not be perverted by prosecutors, through technical subdivision of the offending conduct into as many separate offences as he or she may abstract from a general failure, unfairly multiplying the number of available convictions.

70 In Connelly v DPP [1964] 2 All ER 401 at 441, Lord Devlin said: “Yet even the simplest set of facts almost invariably gives rise to more than one offence. In my opinion, if the Crown were to be allowed to prosecute as many times as it wanted to do on the same facts, so long as for each prosecution it could find a different offence in law, there would be a grave danger of abuse and of injustice to defendants.”

Albeit in a reference to a plea in bar, Gleeson CJ in Environmental Protection Agency v Australian Iron and Steel Pty Ltd ((1992) 28 NSWLR 502) said at 50 that: “The number of potential offences cannot be multiplied by the drafting technique which the Commission found convenient.”

The same judge, in Stanton v Abernathy (1990) 19 NSWLR 656 at 662, having observed that each false statement involves a separate crime of perjury added that: “Considerations of commonsense and fairness enter into a judgment on the question of how many statements ought to be taken to have resulted from a number of utterances.”

Pleas In Bar

71 A plea in bar may be raised where “the elements of the offences charged are identical or in which all the elements of one offence are wholly included in the other” (Pearce v The Queen). “The true test whether such a plea is a sufficient bar in any particular case is, whether the evidence necessary to support the second charge would have been sufficient to procure a legal conviction upon the first” (Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131 per Griffith CJ). Thus, an acquittal on a charge of common assault precluded prosecution upon the same facts for assault occasioning actual bodily harm (R v Elrington (1861) 1 B&S 688). Similarly, a conviction of a charge of possessing heroin for the purpose of supply may create a bar to a further charge of supplying heroin (R v Dodd (1991) 56 A Crim R 451).

72 The rule operates to prevent repeated conviction for the same offence. It is not the law that a person cannot be prosecuted for a number of offences arising out of the same act, (R v Dodd; R v Thomas [1950] 1 KB 26; State Pollution Control Commission v Tallow Products Pty Limited (1992) 29 NSWLR 517; Australian Oil Refineries v Cooper (1987) 11 NSWLR 277) because “There is no reason why an act may not be prohibited by two separate statutes and may involve an offence under each statute.” (Parramatta City Council v Stauffer Chemical Company (Australia) Pty Limited [1971] 2 NSWLR 500, per Hope J at 510)

73 Whether the one course of conduct is a contravention of two statutory provisions so as to render the offender liable to one or two convictions will depend upon legislative history and statutory construction (Environmental Protection Agency v Australian Iron and Steel Pty Ltd). However, “Where a person who has been convicted under one of the two statutes in question here is also charged with an offence under the other statute, the court hearing the second charge would no doubt take the fact of that conviction into account when deciding whether a second conviction should be recorded, and, if it is recorded the extent to which any further punishment should be imposed.” (Per Hunt J in Australian Oil Refining Pty Limited v Cooper (1987) 11 NSWLR 277 at 283. See also Morrison v New England Antimony Mines NL [2003] NSWIRComm 194).

Stay of Proceedings

74 A court, in the exercise of its inherent jurisdiction to prevent abuse of its process, may, following conviction of an offence, stay further proceedings grounded on the same, or substantially the same, conduct, even where a plea in bar is not available (R v O'Loughlin (1971) 1 SASR 219, Connelly v DPP [1964] 2 All ER 401, Pearce v The Queen).

75 The relief is available where multiple prosecutions for what are "technically different offences, but in substance the same matter, and referable substantially to the same facts and circumstances" are perceived as unjust (per Kirby J in Pearce v The Queen at 468).

76 There are two aspects to such an abuse of process as will call for a stay: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute (per Mason CJ, Rogers v The Queen (1994) 181 CLR 251 at 256).

77 In R v O'Loughlin the prosecution, having secured a conviction of driving under the influence contrary to s47 of the Roads Traffic Act 1961-1969 (SA), pursuant to which the offender was fined, sought to proceed on a charge arising out of the same event, that the offender drove his vehicle while there was present in his blood the prescribed content of alcohol, contrary to s47(b) of the same Act. The South Australian Court of Appeal held that there was sufficient identity between the acts or omissions constituting the offences as to make it improper to proceed with the second.

78 In Collins v Murray [1989] 1 Qd R 614, the defendant violently resisted the attempts of two police officers acting in concert to arrest him. He was charged with two counts of resisting a police officer in the execution of his duty; one for each officer. Because the second charge was constituted by the "gist or gravamen" of the first charge - only the identity of the officers being different - the court stayed the second of the two charges.

79 The New South Wales Court of Appeal in R v Mai ((1992) 26 NSWLR 371), held that the charging of an accused with possession and attempted possession on virtually the same facts - the difference being that the accused, being in actual possession of a non-commercial quantity of heroin, had attempted to possess a commercial quantity, a more serious offence - was not justified. Upon failure of the Crown to amend so as to make the second charge an alternative to the first charge, the trial judge should have stayed the indictment so far as the second count was concerned. Hunt CJ at CL said, at 386: “It is difficult to imagine how it could ever be proper for the Crown to charge an accused with either possession or attempted possession separately for each successive day that the single offence continued.”

80 It is, of course, the case that in some cases only by bringing multiple charges may a prosecutor address the totality of the criminal enterprise (Pearce v The Queen). Sentencing, following a conviction on one single charge, might otherwise require that a material part of the accused’s conduct be excluded from consideration (R v De Simoni (1981) 147 CLR 383). Nevertheless, as McHugh, Hayne and Callinan JJ held in Pearce: “Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily” (at 621).

The Rule Against Duplication of Penalty

81 To the extent to which two offences contain common elements, an offender may not be punished twice for the commission of the elements that are common (Pearce v The Queen). Where a duplicitious prosecution is brought pursuant to s49A in respect of a course of criminal conduct in terms "not overly technical and restrictive", a conviction should, unlike the circumstance in Pearce v The Queen or R v De Simoni, permit sentencing upon consideration of the totality of the defendant's conduct. In such a case, further prosecution and punishment would offend against the rule in Pearce v The Queen.

82 The principle of totality requires that a court clearly identify the material aspect of the accused's conduct following a second conviction upon substantially the same facts as the first, which aspect could not have been a material consideration in fixing the sentence for the first charge. This was the approach of the Full Bench in Crown in Right of State of New South Wales (Department of Education & Training) v Keenan (2001) 105 IR 181.

83 If it is not possible to isolate any act or omission of the defendant as relevant to the second offence, which act or omission could not legitimately have been considered in sentencing for the first offence, the principle of totality demands that no further punishment be imposed. It follows that no conviction should be recorded and that the second prosecution be stayed, because, as Kirby J pointed out in Pearce v The Queen, a conviction in itself is a punishment without more.

84 This is especially the case in a jurisdiction where large corporations employing thousands of workers have cause to jealously guard their occupational health and safety record. Casual acts of negligence and systemic failures will continue to blight enterprises conducted through human agencies. The number of discrete offences, as a measure of the failure of a corporation to vigorously pursue its responsibility for the health and safety of persons in and around its works, ought not be artificially inflated at the whim of the prosecution.

85 From the cases, the following general propositions may be drawn in relation to prosecutions brought in respect of contraventions of the Occupational Health & Safety Act 1983:

1. It is the duty of the prosecutor to bring charges sufficient to allow the court in sentencing an offender to consider the total criminality of his conduct.

2. Where, by virtue of s49A, the totality of an offender's criminal conduct may be addressed in sentencing upon the one charge where multiple offences arise out of the same factual circumstances, the prosecutor should not ordinarily bring more than one charge.

3. Where an offender is oppressed by the prosecution of more than one charge in respect of offences arising out of the same factual circumstance, the court may put the prosecutor to his election as to which charge he presses or, following conviction and sentence upon the first charge, stay the remaining charges.

4. The test of oppression is whether, pursuant to the totality principle, there is no fact or circumstance which may be identified in the second charge, which fact or circumstance was not materially relevant to the conviction and sentencing of the defendant on the first charge.

5. It is for the court, not the executive, to determine the number of separate convictions that may be reasonably entered in respect of any one course of criminal conduct, so that the process of law is not abused by oppression of the defendant and embarrassment to the administration of justice.

6. Notwithstanding the generality of these propositions, s15 and s16 of the Act create separate offences in relation to the one course of conduct and s49A manifests a parliamentary intention that separate convictions be recorded.

A State of Mind as a Factual Circumstance

86 Central to all of these propositions is the notion that the same criminal conduct should not be twice punished and the necessity, in each case, of conceiving what is to be embraced by the phrase "the same facts and circumstances".

87 Where a particular offence occurs in the course of a continuous, conscious course of criminal activity (for instance, abduction and repeated assaults), separate charges must be brought so that the totality of the criminal conduct may be addressed in sentencing. When separate convictions have in consequence been entered for several offences comprising that activity, the maximum possible aggregate penalty is, by statute, the number of offences multiplied by the maximum penalty for each conviction. It is the principle of totality that mitigates, and militates against, that possibility of unjust result. Each criminal act is separately punished and no act is punished twice.

88 That conscious and repeated criminal intent and adversion for which a person is punished when convicted for multiple offences, in the course of such a criminal enterprise, must be contrasted with the single, continuous inadversion for which a person may be punished when convicted of multiple offences arising out of the same factual circumstances comprising the several acts or omissions constituting negligent contraventions of s15 or s16 of the Occupational Health & Safety Act 1983.

89 In such cases, the number of charges faced by the offender will relate more to the circumstantial procession of events or the discretion of the prosecutor than the independent formation of several culpable states of mind.

90 Further, the elements of each offence in the first example are constituted by separate conscious acts by the offender. In the latter case, the element of each offence may be constituted by the one continuing state of mind of the offender in combination with separate or repeated acts by other persons, each of which constitute a separate risk which the offender, labouring under his culpable inadversion, either helped to create or failed to prevent.

91 Where several convictions are entered against an offender for negligent contraventions of s15 or s16 of the Occupational Health & Safety Act 1983, each offence is separately punished by the fact of conviction but the subjective content of the first offence is punished twice. It follows that if multiple charges are brought by the prosecution for negligent contraventions of s15 and s16 of the Occupational Health & Safety Act 1983 in relation to the same factual circumstances and one of those factual circumstances is the one continuing inadvertent state of mind, no more than one conviction should be recorded, unless the legislation indicates a contrary intent and even then there should be no additional punishment.

92 The problem in any instant case is that until the evidence is concluded, the court can reach no concluded view as to the state of mind of a defendant. In the course of one apparently continuous yet evolving circumstance, information may come to the attention of a previously inadvertent mind putting it on notice of a risk it had previously and culpably overlooked. Whether that information ought reasonably be interpreted as forming a different and more culpable state of mind bearing upon future risks generated by the same course of conduct, is a question of fact and degree.

Conclusion

93 Upon the evidence, the defendant Robert Josef was the directing mind of Josef & Sons Contracting Pty Ltd. It is his mind which is relevant to a determination of whether Josef & Sons Contracting Pty Ltd contravened s15 and s16 of the Occupational Health & Safety Act 1983. Subject to other matters upon which I have not yet ruled, the prosecution has established a prima facie case against the defendant upon each of the six charges.

94 There is no basis for requiring that the prosecutor elect not to proceed with those charges brought in respect of contraventions of s16 of the Act, because the Act by the terms of s49A evinces a statutory intention that convictions upon those charges may be additional to convictions on charges brought in respect of contraventions of s15 arising out of the same factual circumstance.

95 There is evidence which may lead to an inference that the state of mind of Robert Josef might reasonably have been materially different at the times relevant to the three separate charges of contravening s15 and s16. I do not believe I should determine whether all of the present charges arise out of the same factual circumstances, one relevant factual circumstance being the state of mind of Robert Josef, until all of the evidence is closed.

96 I decline to make the orders sought. Further application relying upon the principles adumbrated in this judgment may be made if and when a conviction is recorded on any one count.

LAST UPDATED: 22/10/2003