Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd [2009] NSWIRComm 4 (5 February 2009)

Last Updated: 11 February 2009

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION :
Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd [2009] NSWIRComm 4



FILE NUMBER(S):
IRC 1991 and 1992

HEARING DATE(S):
30 July 2008

DATE OF JUDGMENT:
5 February 2009

PARTIES:
PROSECUTOR:
Inspector Nathan Hamilton

DEFENDANT:
Pells Sullivan Meynink Pty Ltd


CORAM:
Backman J


CATCHWORDS:

LEGAL REPRESENTATIVES
PROSECUTOR:
Mr J V Agius of senior counsel with Mr B G Docking of counsel
Solicitors: Criminal Law Practice Legal Group WorkCover Authority
(Ms F Miller)
DEFENDANT:
Mr I M Neil of senior counsel with Ms L M Wilson of counsel
Solicitors: Kennedys
(Mr A A Howie)

CASES CITED:
DPP v Esso Australia Pty Ltd [2001] VSC 103
Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481
Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467
Regina v Saunders (1990-93) 9 Petty Sessions Review 4537
Saffron v The Queen (1988) 17 NSWLR 395
WorkCover Authority of New South Wales (Inspector McMartin) v Newcastle Wallsend Coal Company Pty Ltd and Others (2002) 116 IR 283
WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119

LEGISLATION CITED:
Occupational Health and Safety Act 2000


TEXTS CITED:




JUDGMENT:

INDUSTRIAL COURT OF NEW SOUTH WALES

CORAM: BACKMAN J

Thursday, 5 February 2009

Matter No IRC 1991 of 2008

Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd

Prosecution under section 8(1) of the Occupational Health and Safety Act 2000

Matter No IRC 1992 of 2008

Inspector Nathan Hamilton v Pells Sullivan Meynink Pty Ltd

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

JUDGMENT

[2009] NSWIRComm 4

1 The defendant moves the Court by way of two Notices of Motion for orders that the prosecution reply to its requests for particulars, in respect of each matter. The requests were set out in two letters each dated 14 March 2008. The letters sought further and better particulars of the allegations set out in the applications for order (the two charges). The prosecution responded by way of letter dated 16 April 2008, addressing some of the particulars sought but declining to address other particulars. A further letter was sent by the defendant on 30 April 2008 pressing for the further particulars. The prosecution, on 30 May 2008 wrote to the defendant advising it that unless it refined or confined its previous requests it was unable to respond further to those requests.

2 The two charges concern an incident that occurred at the intersection of the Marden Street ventilation tunnel (MC5B) and the Pacific Highway exit ramp tunnel (MCAA) at Lane Cove, during the construction of the Lane Cove tunnel. On 2 November 2005 while excavation work was being carried out, a section of the tunnel roof collapsed underneath the Longueville Road off-ramp to the Pacific Highway. The collapse caused ground subsidence that affected the stability of a block of home units at 11-13 Longueville Road. As a result of the collapse, the off-ramp and Longueville Road were closed and residents of the home units were evacuated.

3 Both charges allege multiple particulars of failures on the part of the defendant to ensure the health and safety of workers and residents of the unit block. The charge under s 8(1) of the Occupational Health and Safety Act 2000 alleges that the defendant failed to ensure the health and safety of its employees, in particular, Daryl Gilchrist. The charge under s 8(2) of the same Act alleges that the defendant failed to ensure that named non-employees including workers at the accident site and residents of the unit block were not exposed to risks to their health and safety. The period in which the alleged offences are said to have had occurred is nominated in both charges as a period, "from about 27 October 2005 to and including November 2005".

4 The alleged risk to safety is particularised in the s 8(1) and the s 8(2) charges as the "risk of being struck by falling rock and/or a tunnel collapse". The s 8(2) charge particularises an additional risk, namely, "the risk of subsidence and damage of the ground surface resulting in the undermining of the unit block". Both charges thereafter contain identical particularisation of the defendant's undertaking at the time of the alleged offences and identical particularisation of alleged failures to, implement and maintain an adequate system of communication or liaison or both between the defendant and Thiess John Holland Joint Venture (the constructor) and Parsons Brinkerhoff Australia Pty Ltd (the designer) respectively. The s 8(1) charge also alleges that the defendant, "failed to adequately prevent its employees from performing work in the down drive of the MCAA including its intersection with MC5B". The s 8(2) charge also alleges that the defendant, "failed to adequately advise that workers should be prevented from performing work in the down drive of the MCAA including its intersection with MC5B"

5 The further particulars with respect to the alleged failures to implement and maintain an adequate system of communication, or liaison, contained in each charge are numerous. For the purposes of addressing the present applications they are extracted from the s 8(2) charge and set out below:

d) The defendant failed to implement and maintain an adequate system of communication or liaison, or both, between the Lane Cove Tunnel's constructor, Thiess John Holland Joint Venture, and the defendant in respect of:

(i) The defendant failed to provide any adequate notice to the Lane Cove Tunnel constructor, Thiess John Holland Joint Venture, of the constructor's non compliance with design intent as reflected in the design drawings or construction sequence, or both, and further of the potential risk of rock fall or tunnel collapse, or both, as a consequence of that non compliance.

(ii) The defendant failed to provide any adequate notice to the Lane Cove Tunnel constructor Thiess John Holland Joint Venture, to obtain a new design and construction sequence for the construction of the down drive of the MCAA including its intersection with MC5B in circumstances where the design and construction sequence that had been provided was not followed.

(iii) The defendant failed to adequately analyse tunnel mapping and compare that to conditions described in design reports to ensure that support regimes nominated were appropriate and efficient, in that the task was only done weekly and generally on Friday by the Senior Rock Mechanics Engineer.

(iv) The defendant failed to adequately liaise with the construction engineers and supervisors regarding the design requirements of the intersection, in that the Senior Rock Mechanics Engineer or geologist only informed them where monitoring installations needed to be installed.

(v) The defendant failed to adequately review mapping, ground classification and support types recommended by geologists.

e) The defendant failed to implement and maintain an adequate system of communication or liaison, or both, between the tunnel's designers, Parsons Brinkerhoff Australia Pty Ltd, and the defendant in respect of:

(i) The defendant failed to provide any adequate notice to the tunnel's designers, Parsons Brinkerhoff Australia Pty Ltd, of the constructor's non compliance with design intent as reflected in the design drawings or construction sequence, or both, and further of the potential risk of rock fall or tunnel collapse, or both, as a consequence of that non compliance.

(ii) The defendant failed to provide any adequate notice to the tunnel's designers, Parsons Brinkerhoff Australia Pty Ltd, that it should provide to the constructor a new design and construction sequence for the construction of the down drive of the MCAA including its intersection with MC5B in circumstances where the design and construction sequence that had been provided was not followed.

(iii) The defendant failed to adequately inform the designers that the construction of the down drive of the MCAA and its intersection with MC5B involved benching.

(iv) The defendant failed to adequately inform the designers that shotcrete was not being installed in a timely manner thick enough on the walls or from floor to floor over the entire arch, or both.

(v) The defendant failed to adequately liaise with the project designers to facilitate changes to the design to tailor it to conditions experienced based on the performance of previously installed support, namely, the rock bolts in the as encountered ground conditions.

6 At oral hearing the letters of 14 March 2008 containing the defendant's requests for further particularisation of both charges were tendered as well as the prosecution's written response dated 16 April 2008. The requests occupy some 26 typed pages which address in detail the prosecution's particulars as set out in the charges. It is not proposed to set out in this judgment the full text of the requests. For present purposes an observation may be made that many of the requests fell outside the ambit in which particulars of charges under s 8(1) and s 8(2) might appropriately be sought. A couple of examples suffice. Question 30 in the letter of 14 March 2008 requesting particulars of the s 8(2) charge asks:

Please state with precision what it is alleged would have been an adequate system of communication of each of the faults and matters referred to in subparagraphs (d)(i) to (v).

Question 31 asks:

What is the basis on which it is alleged that the defendant should have implemented and maintained the system of communication identified in answer to Question 30? In particular, please:

identify or provide a copy of any document by which it is alleged that the defendant should have implemented and maintained the system of communication identified in answer to Question 30; and/or

state when, where and between what persons any conversation or conversations occurred by which it is alleged that the defendant should have implemented and maintained the system of communication identified in answer to Question 30, and the material substance of what was said by each such persons.

7 The form of these questions has been held in this jurisdiction, in relation to offences under comparable provisions of s 8(1) and s 8(2), not to be a proper subject of a request for particulars. In WorkCover Authority of NSW (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 132, 133 Walton J, Vice-President said:

Demonstration of the commission of the offence does not require a demonstration that certain measures should have been taken to prevent the risk but rather it is sufficient to show how the defendant failed to provide for the health and safety of persons at the workplace or the objective facts causing the detriment to safety and the causal connection therewith of the employer. As was held in Haynes v CI & D Manufacturing (at 158-159):

"The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating `risks' to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection, therewith of the employer. We are of the opinion here that her Honour failed to do that.

Her Honour viewed the essential ingredients, as set out in the various particulars provided, not in terms of whether each had been made out according to inferences reasonably open on the evidence but rather in light of the proposition that the circumstances as to how the accident happened had not been established. We deal later with each of the findings in that respect to demonstrate the point; suffice it to say now that, in our view of the two charges brought against the respondents, the occurrence of the accident did not condition or otherwise affect the essential ingredients of the alleged offences."

Measures which may have been taken to prevent any failure are matters which might be raised for consideration by the defendant under s 53 of the Act.

The particular measures which may or may not have been taken by the defendant to prevent a detriment to safety are matters which, in part, concern a commercial judgment for the defendant (see Genkem Pty Ltd v Environmental Protection Authority (1994) 35 NSWLR 33 at 41-42).

It is not necessary for the prosecutor to prove that the "turning off of the mixer" (when its employees were at risk of coming into contact with its blades during the decanting of product) needed to have been achieved by one or more methods. Should the defendant demonstrate that it was not reasonably practicable to have achieved this object it may succeed in a s 53(a) defence. In that matter the onus falls upon the defence: see Sydney County Council v Coulson (1987) 21 IR 477 at 480. The prosecution's duty to provide particulars is confined to those concerned with the charge and not the defence: see WorkCover Authority of NSW (Inspector Page) v Growth Equities Services Pty Ltd (unreported, Industrial Relations Commission of NSW, Peterson J, 10 March 1999, at 8).

8 The defendant in written submissions relied on a number of legal principles in support of its contention that its request for particulars should be answered. These principles have been developed in a number authorities dealing with when and in what circumstances further particularisation of a charge should be provided. According to the defendant the two charges it presently faces are deficient in that they do not contain sufficient notification to enable a fair opportunity to consider its plea, prepare its defence and to obtain evidence. At oral hearing the defendant submitted that its applications should be considered against the principles that a charge must be precise, not uncertain and not capable of movement: see for example Hunt A-JA in Saffron v The Queen (1988) 17 NSWLR 395 at 447 citing Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270, [1969] 1 NSWR 231; DPP v Esso Australia Pty Ltd [2001] VSC 103 at [24] per Cummins J. A defendant is also entitled to fair information and reasonable particularity of the change that it faces: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per McTiernan J at 501 citing Smith v Moody (1903) 1 KB 56.

9 The defendant also informed the Court that its requests were made even more necessary by reason of the scale and state of the prosecution brief, which it described as, "prohibitively voluminous and unorganised". With regard to this latter contention, evidence adduced by the defendant on the applications revealed that the prosecution brief comprised some 71 folders of material. Parts of the brief are not paginated. In addition I make the observations that there are three co-defendants all charged in relation to the circumstances arising from the collapse of the Lane Cove tunnel, and, the charges against the defendant allege multiple failures and comprehensive particularisation of those charges. Similar issues persuaded Wright J in WorkCover Authority of New South Wales (Inspector McMartin) v Newcastle Wallsend Coal Company Pty Ltd and Others (2002) 116 IR 283 to make an order that the prosecution provide further particulars to the defendants on the basis of appropriate case management (at 298).

10 In written submissions the defendant provided two examples of particulars in the charges which it said were deficient. The first example forms part of particulars (c) and (d) of the s 8(1) charge and particulars (d) and (e) of the s 8(2) charge. These particulars allege that the defendant, "failed to implement and maintain an adequate system of communication of liaison or both", between itself and the tunnel's designers and constructors. According to the defendant the allegation is not expressed and in its current form is meaningless. The defendant contends that it is uncertain, given the state of particularisation in the charges, what a system of communication or liaison is, or whether the allegation is that the defendant had no system at all or a system in place that was not sufficient. The second example concerns the particulars set out in paragraph (f) of the s 8(2) charge which alleges that the defendant, "failed to adequately advise that workers should be prevented from performing work . . ." The defendant's complaint with regard to that particular is that there is no explanation of what is meant by, "adequate advice", to whom the advice should have been given, and when and on what basis the advice should have been given. The defendant also contended that the charges as framed do not enable an understanding of how long the risks to safety are said to have subsisted, or whether each person nominated in the charges was exposed to risk or risks for some, or all of the period of the charges.

11 In oral submissions further differences said to be present in the charges were identified. With regard to the alleged risks to safety, the defendant said that the connection between its obligations (for example, to implement and maintain a system of communication) and the relevant risk is not particularised. Further, that the risk is not identified or particularised in the charges. According to the defendant, overlaying all of the deficiencies is the problem that many expressions used in the charges are not defined. The defendant said in this regard that it does not know what the prosecution means by its use of the expressions in the charges such as "Lane Cove tunnel project", "construction geotechnical services", "system of communication" and "system of liaison". The defendant also contended that no attempt has been made by the prosecution to identify those aspects of the brief which relate to the defendant as opposed to the other defendants. No attempt has been made to relate any aspect of the brief to the charges, and the brief is neither indexed nor organised, which might otherwise enable the defendant to assess these matters for itself. It was also contended by the defendant that its undertaking and place of work are not set out in the charges.

12 In reply, the prosecution relied on the Court of Criminal Appeal (NSW) decision of Regina v Saunders (1990-93) 9 Petty Sessions Review 4537 for the proposition that the obligation to provide particulars of a charge does not extend to responding seriatim to a series of questions. In that decision Gleeson CJ, the then Chief Justice said at 4539:

What I cannot understand is why the Crown Prosecutor thought that the request for particulars confronted the Crown with any difficulty. So far as I can see, the only difficulty might have been in responding to each question seriatim and in precise accordance with the terms of the question. It is, however, not necessary for particulars to be supplied in that form. All that is necessary is that the Crown clearly inform the respondent of the nature of the case made against him. It could do so in the present case by replying collectively to the question asked in the following terms:

"Relying upon the admissions allegedly made by the respondent, the terms of which are known to the respondent and his legal advisers, the Crown case is that between the dates specified in the indictment, an ongoing business activity of supplying amphetamines to person who requested such supply. The Crown is unable to specify details of each individual incident of actual supply. The Crown relies upon a single criminal enterprise, the overall nature of which involved the supplying of amphetamines."

13 According to the prosecution it has complied with its obligations to provide particulars by telling the defendant in general terms in the letter of 16 April 2008 what case it has to meet.

14 In oral submissions the prosecutor proceeded to provide further particularisation and clarification of the charges. The Court was informed that the defendant's undertaking was particularised in paragraph (c) of the s 8(2) charge. The definition of "construction geotechnical services", which appears in paragraph (c), the prosecutor said, was well-known to the defendant because it is the defendant's own expression used by it in its correspondence with the other joint venturers on the project.

15 The prosecution also tendered on the applications two volumes of materials which it said contained a number of the defendant's own documents and which supplemented the particulars already provided in its letter of 16 April 2008. One such document was a report of Greg Kotze which deals with the Lane Cove tunnel collapse on 2 November 2005. An annexure to that report found at Appendix 7 contains a description of the Lane Cove tunnel project. In addition to these expressions, and the meanings attributed to them by the prosecution, the prosecution drew the Court's attention to its letter of 16 April 2008 wherein admissions made by the defendant have been set out, and documents said to contain the admissions, identified. These documents, according to the prosecution, set out in detail the defendant's contractual obligations, the content of its undertaking and the nature of the alleged failings. The letter of 16 April 2008 informs the defendant that the prosecution has taken the practical course of formulating its case by relying upon statements contained in the defendant's business records about the alleged risks to safety and the defendant's alleged failures to remove those risks. The reference to "core support" in particular (b) (iv) of the s 8(1) charge and particular (c) (iv) of the s 8(2) charge (which set out the defendant's undertaking) are sourced in the letter of 16 April 2008 to specific parts of documentation which is identified and contained in the brief of evidence.

16 The alleged risks to safety are clearly set out in the charges, according to the prosecution. The location and extent of the risks are set out in the charges. A list of persons said to be at risk has been produced to the defendant. The prosecution will allege that the workers, occupying one category of persons said to be at risk, were at risk during the whole of the period while they were at work tunnelling. The residents were at risk according to the prosecution during the whole of the period of the s 8(2) charge, "because of the likelihood - because of what actually happened, the subsidence of the building".

17 The prosecution also addressed the defendant's complaint that the alleged failure set out in both charges, to implement and maintain an adequate system of communication or liaison, was deficient. The words, it was said, carry their own English meaning, namely "liaison" means "contact, communication with, a system of communication." The prosecution also explained that the communication, "can be in writing or an oral communication between himself and the joint venturers," and that particulars of how it is said the defendant failed to comply with its statutory obligations have been set out in particular (d) of the s 8(2) charge and particular (c) of the s 8(1) charge. To alleviate any further potential difficulty with this explanation the prosecution directed the Court's attention to the consultancy agreement which forms part of the two volumes of material provided to the defendant. Contained at page 41 of Annexure 3, volume 1, are definitions, upon which the prosecution proposes to rely, of various services, including "liaison". With regard to the term "notice" used in particulars (c) and (d) of the s 8(1) charge and particulars (d) and (e) of the s 8(2) charge, the prosecution said:

It is the prosecution case that they simply failed to give that notice. They never told the joint venture that there was a deficiency in the way in which this tunnel was being constructed. They never told the joint venturer that it was not complying with the design drawings and that it was not complying with the construction sequence. They never told the joint venturer that it was extending this tunnel without adequate support. They never did that in circumstances where their geologist was in the tunnel every day. Their geologist was meant to be reporting to their own rock mechanic expert who was in turn required by the agreement that the defendant signed to analyse the material that he was getting from the geologist, compare it with the design drawings in the construct series and if there was an inadequacy to draw it to the attention of the John Holland joint venture.

18 With regard to the contention that particular (f) found in the s 8(2) charge (the alleged failure, "to adequately advise that workers should be prevented from performing work . . .") was deficient, the prosecutor provided the following explanation:

The fact is that no advice was given in this case. The defendant did not advise the joint venturers, any of the crews, even their own employees, that this tunnel was not being constructed in accordance with design and with the drawings which had been approved and upon which the whole project was based. It was not being constructed in accordance with the construction sequence which mandated the extent to which the actual tunnel could be excavated in many cases in excess of any line of roof support. The fact is they simply didn't advise anybody about that. They had an obligation to do so under the Act. They also had a contractual obligation to do so which in our submission is a pointer to what they themselves should have been on notice that they should be looking at. They are not matters for particulars, it is not necessary to further particularise what adequate advice would have been in a case where the defendant ought to have said to the joint venturers: "This tunnel is not being constructed in accordance with design intent. It is not being constructed in accordance with the drawings or the construction sequence. The geological company indicates that it is inadequately supported". All things which when one looks at the statements of the employees of the defendant, there are admissions indicating that they are the very things that they did not do.

19 The defendant's "place of work", the prosecution said can be found in the s 8(2) charge on the first page where it indicates the intersection of the two tunnels, MCAA and MC5B and the address 11 - 13 Longueville Road, Lane Cove, which is the unit block where the subsidence was said to have occurred.

20 The design drawings and the construction sequence referred to in particular (c)(i) of the s 8(1) charge and particular (d)(i) of the s 8(2) charge, the prosecution said, are referred to in Mr Kotze's report, Figure 7. According to the prosecution, the report is a core document in its case.

21 In addition to this further particularisation of the charges provided by the prosecution both in the letter of 16 April 2008 and in oral submissions, I would observe that a number of matters about which the defendant has requested further particulars are set out in the prosecutor's respective affidavits accompanying each charge.

22 According to the relevant authorities, a defendant is entitled to know the legal nature of the offence with which it has been charged as well as the particular act, matter or thing which is alleged as the foundation of the charge: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J. An alternative way of expressing this principle is that a charge must provide fair information and reasonable particularity of the nature of the offence (Saffron v The Queen at 445 per Hunt A-JA) so that a defendant has sufficient information to enable it to meet the case made against it: Johnson v Miller at 487 per Dixon J.

23 In the context of charges under s 8(1) and s 8(2), for example, particulars should be provided of the precise act or omission which is said to found the allegations of a failure or failures to ensure health and safety. An assertion that a defendant failed to ensure the health and safety of all its employees, without more, would not adequately particularise the offence: Fernz at 137, citing Else-Mitchell J in Hutchings v Rodriguez (1959) 76 WN (NSW) 459 at 460.

24 The defendant does not submit that the two charges are not valid. It is not contended that there is, for example, a latent ambiguity which might otherwise give rise to duplicity: Johnson v Miller at 486 to 491, per Dixon J.

25 Circumstances in which further particulars of a charge might be ordered by a court were set out by Isaacs J in R v Associated Collieries [1910] HCA 61; (1910) 11 CLR 738 at 740 to 741. The relevant passage was cited by Walton J in Fernz at 133:

"I take the fundamental principle to be that the opposite party shall always be fairly apprised of the nature of the case he is called upon to meet, shall be placed in possession of its broad outlines and the constitutive facts which are said to raise his legal liability. He is to receive sufficient information to ensure a fair trial and to guard against what the law terms `surprise', but he is not entitled to be told the mode by which the case is to be proved against him: see Duke v Wisden; Temperton v Russell; Hennessy v Wright; Benbow v Low. It has been urged that s 15(a) of the Australian Industries Preservation Act 1906 as amended, by throwing the burden of proof on the defendants, entitled them to a strict pleading on the part of the plaintiff. In my opinion that section makes it more important than it would otherwise be to see that the statement of claim does give the necessary information, because, in ordinary circumstances, the obligation of the plaintiff to prove his case in the first instance affords considerable practical protection against surprise. That safeguard in a case like the present may be absent, whether it will or not cannot be foreseen, and therefore where I am in any doubt as to the sufficiency of the particulars I resolve it in favour of the defendants, so as to ensure their being in a position to fully understand and prepare for the case alleged against them."

26 Walton J in Fernz (at 134), as a further illustration of when the prosecution may be obliged to provide further particulars, referred to a passage from the judgment of Gleeson CJ in Environmental Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 at 484, where his Honour said:

In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged.

It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons (Stanton v Abernathy (1990) 19 NSWLR 656; 48 ACrim R 16).

27 Whether particulars may be required depends upon the relevant statutory provision or provisions under consideration (here s 8(1) and s 8(2)): Fernz at 135 referring to Ipp J in Vrisakis v Australian Securities Commission (1993) 9 WAR 395.

28 Applying the observations referred to immediately above, the charges presently before the Court should disclose, in order for the requirements of fair and reasonable particularity to be met, what the alleged failures are and how they are said to have exposed persons to a risk, or risks, to their health and safety. In many cases the risk to safety will be self-evident, for example, allocating workers to work on the top of a high rise building without scaffolding or other means of fall protection. In a case, which is, or is likely to be, of some factual complexity, the Court in its discretion may be more disposed to order particulars, if to do so might avoid an injustice: Fernz at 134 citing Ipp J in Vrisakis at 444 to 446. On present indications the charges before the Court fall into this category.

29 The issue before the Court however is whether the particulars of the charges supplied by the prosecution were fair and reasonable or sufficient in terms of their content and precision so as to enable the defendant to fairly meet the allegations made against it. In my view the prosecution's obligation to provide particulars of the nature of the offences, allowing for the apparent complexity of the facts and the size of the brief of evidence, has been discharged by reason of the combination of particulars suppled in the letter of 16 April 2008 and the further particulars provided at oral hearing. The context and extent of these further particulars have been referred to in this judgment in some detail. Further particulars have also been supplied in the prosecutor's affidavits accompanying each charge.

30 The defendant's Notices of Motion are therefore dismissed.

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LAST UPDATED:
5 February 2009