Industrial Relations Commission of New South Wales in Court Session CITATION : Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd [2002] NSWIRComm 215 PROSECUTOR: Robert Darcy Coombs PARTIES : DEFENDANT: Patrick Stevedores Holdings Pty Ltd. FILE NUMBER: IRC 5194, 6102, 6103, 6104, 6105 of 2000 CORAM: Haylen J Occupational Health and Safety Act 1983 - s 15 - five charges arising from the same factual circumstances - similar particulars - "no case" submissions - whether duplicity - whether nature of charges led to "double jeopardy" or abuse of process - whether s 15 able to be pleaded as a continuing offence - principles considered - previous challenge by motion raising duplicity, double jeopardy and abuse of process - whether defendant's conduct of previous challenge permitted further consideration of same issues - "no case" submission rejected CATCHWORDS : Occupational Health and Safety Act 1983 - s 48(1)(a) - whether Minister gave consent to prosecutions - time at which challenge to consent should be made - proper for prosecution to be permitted to re-open evidence on issue of consent - consent not element of offence - proof of consent procedural issue only - general consent sufficient - evidence of materials submitted to Minister requesting consent - whether "authority to prosecute" a valid consent - consent valid Occupational Health and Safety Act, s 49A - duplicity - abuse of process - object and purpose of amendment considered - object and purpose of Act considered Industrial Relations Act 1996 (NSW) Chapter 5 s 168 Industrial Relation Commission Rules Part 27A r 217B LEGISLATION CITED : Interpretation Act 1987 s 35 Justices Act s 57 Occupational Health and Safety Act 1983 15 (2) s15(2)(b)(i) s 48(1)(a) 48(1) (c) s 49A Occupational Health and Safety Amendment Act (No 51) of 1997 Supreme Court (Summary Jurisdiction) Act 1967 s 4(1) Burgess v Kaputar Timbers Pty Ltd (1999) 91 IR 378 Byrne v Baker [1964] VR 443 Capral Aluminium v WorkCover Authority of New South Wales (1999-2000) 49 NSWLR 610 at 629-30. Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Coombs v Patricks Stevedores Holdings Pty Ltd [2001] NSWIRComm 39 (2001) 103 IR 417 Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 CSR v EPA (2000) 110 LGERA 334 at 340-342 Dever v Creevey ex parte Creevey [1992] 1 QdR 232 Environmental Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 Ex parte Johnson re MacMillan (1946) 47 SR (NSW) 16 Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36 at 38 Griffiths v R (1994) 125 ALR 545 at 548 Haynes v CI&D Manufacturing Pty Ltd and anor (1995) 60 IR 149 John Graham Kemp v Gough & Gilmour Pty Ltd NSW CCA (unreported, 14 February 1995) Inspector Taylor v Fletcher International Exports Pty Ltd [2001] NSWIRComm 155 Mendleson (1973) 57 Cr App R 849 at 855 - 856 Meiklejohn v Central Norseman (1998) 19 WAR 298 Newbury v Smith (1991) IR 314 Ombudsman v Moroney [1983] 1 NSWLR 317 Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 Pearce v R (1998) 194 CLR 410 Price v Humphries [1958] 2 QB 353 R v Bacon [1973] 1 NSWLR 87, 96 CASES CITED : R v Bates (1911) 1 KB 964 at 965 R v Cain [1976] 1 QB 496 R v Cooling [1990] 1 Qd R at 378 R v Greenfield, Barker, Creek R v Hamzy (1994) 74 A Crim R 341 R v Harkins [1958] VR 543 at 545) R v Metz 11 Cr App R 164 R v Moussad [1999] NSW CCA 337 (unreported, 27 October 1999) R v Thompson [1914] 2 KB 99) R v Schildkamp [1971] AC 1 Rodney Morrison v Dartbrook Coal Pty Ltd v Tecrete Industries Pty Ltd [20002] NSWIRComm 127 Rodney Morrison v United Collieries Pty Ltd [2002] NSWIRComm 173 S v The Queen (1989) 168 CLR 266 Shaw v R 91952) 85 CLR 365 at 380 Schulz v Virgin (1966) SASR 94 Slogget v Adams (1953) 70 WN 206 SRA v Dawson (1990) 37 IR 110 at 121 Speed v Thomas Swift & Co [1943] 1 KB 557 at 563-564 Tecrete Industries Pty Ltd [20002] NSWIRComm 127 Traveland Pty Ltd v Doherty (1982) 6 A Crim R 181 at 185 Walsh v Tattersalls (1996) 188 CLR 77 Woolmington v DPP (1935) AC 462 at 481 Workcover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd Workcover Authority of New South Wales (Inspector Mansell) v Luis Bustamante [2002] NSWIRComm 187 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Ltd (2002) 112 IR 332 [at paragraph [91] HEARING DATES: 07/30/2001; 08/01/2001; 09/04/2001; 09/11/2001; 09/20/2001; 09/28/2001; 10/05/2001; 02/05/2002; 02/06/2002; 02/07/2002; 02/08/2002; 02/11/2002; 02/12/2002; 02/13/2002; 02/14/2002; 02/18/2002; 02/19/2002; 02/20/2002; 02/21/2002; 02/25/2002; 02/26/2002; 02/27/2002; 02/28/2002; 03/20/2002; 03/21/2002; 04/05/2002; 04/29/2002; 07/29/2002 DATE OF JUDGMENT: 08/29/2002 PROSECUTOR: Mr B Docking of counsel SOLICITORS: Mr P Tyson Turner Freeman LEGAL REPRESENTATIVES: DEFENDANT: Mr Ian Barker QC with Ms P McDonald of counsel SOLICITORS: Ms W Thomspon Freehills JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 29 August 2002 Matter Nos. IRC 5194, 6102, 6103, 6104 and 6105 of 2000. Robert Darcy Coombs v Patrick Stevedores Holdings Pty Ltd. Prosecutions under s 15(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2002] NSWIRComm 215 1 Five prosecutions under the Occupational Health and Safety Act 1983 have been commenced by Robert Darcy Coombs, the Secretary of the Central New South Wales Branch of the Maritime Union of Australia (MUA). The MUA is not an organisation of employees registered and recognised under the provisions of the Industrial Relations Act (NSW) 1996. Proceedings under the Occupational Health and Safety Act 1983, pursuant to the provision of s 48, may be instituted only: (a) with the written consent of the Minister or a prescribed officer, or (b) an Inspector, or (c) by the secretary of an industrial organisation of employees, any member or members of which are concerned in the matter to which the proceedings relate. It was common ground that the reference in s 48(1)(c) to an industrial organisation of employees was a reference to an organisation registered pursuant to the provisions of the Industrial Relations Act 1996 (NSW) and did not include a federally registered union such as the MUA. 2 In short, the prosecutions allege breaches of s 15 of the Act and arise from the driving of straddle cranes at the Port Botany container terminal operated by Patrick Stevedores Holdings Pty Ltd. It is alleged that between 1998 and 2000, persons who drove the cranes were open and subject to neck, shoulder, back, spine and arm injury arising from the defendant's continuous operating arrangements. 3 Mr Coombs made certain representations to the Minister seeking his written consent in accordance with the provisions of s 48(1)(a) of the Act. I will turn to the detail of these representations as exposed in the evidence but it is sufficient at this point to note that Mr Coombs' representations were accompanied by a detailed legal advice as to the strength of the case which Mr Coombs wished to bring. That advice was given by senior and junior counsel and attached five draft summonses which specified and particularised offences under s 15 of the Act. The Minister provided a letter in response to these representations and a document which contained the words "authority" and "consent" permitting prosecutions to be commenced by Mr Coombs under the Act. 4 At the close of the prosecution case, senior counsel for the defendant indicated that the defendant wished to submit that there was "no case" to answer and that each summons should be dismissed. The defendant's submissions arose under three categories identified as: (a) there was no consent of the Minister as required by s 48(1)(a) of the Act; (b) the charges were duplicitous; and (c) the charges put the defendant in double jeopardy or alternatively, were an abuse of process . 5 Each summons had earlier been challenged by way of Notice of Motion which was dealt with by Wright J, President in March 2001 (Coombs v Patrick Stevedores Holdings Pty Ltd. In those proceedings, the defendant applied to permanently stay the proceedings on the basis that no offence was disclosed in the particulars of the charges, that the charges were duplicitous and that the defendant was exposed to double jeopardy. His Honour held that, although a full appreciation of the nature of the charges required something of a navigation through the charges as pleaded and particularised, there was not a relevant failure to state the essential elements in law of the offences charged, nor was there a failure to state appropriately the manner of their occurrence and such other details as was necessary to allow the defendant "to know that which he must meet", applying the test referred to by Mahoney JA in Boral Gas Pty Ltd v Magill (1993) 32 NSWLR 501 at 515. His Honour also held that, once the five charges were seen in the context of the particular way in which they were framed, the way in which reliance had been placed on the different paragraphs of s 15(2) of the statute and the different time periods in the two pairs of charges, it could not be said that the charges as presently framed demonstrated double jeopardy or dealt with charges in a way that was unfair or otherwise permitted double jeopardy. His Honour made it clear that he had dealt with the matters raised on the Notice of Motion on an interlocutory basis but then stated (at [41]): However, I am not in any way dealing with the issue whether there was a continuing offence of the kind alleged. Such matters, and indeed a number of legal issues relating to such matters, would inevitably have to be matters for the trial judge, and by way of a rather broader analogy, I note the way in which certain matters relating to continuing offences and the creation of such offences under environmental legislation was dealt with by Pearlman CJ in the Land and Environment Court and which was approved by the Court of Criminal Appeal in the stated case proceedings in Environment Protection Authority v CSR t/as CSR Wood Panels (2000) NSW CCA 373 at, for example, [6] and [7]. In these proceedings, it was submitted for the defendant that different aspects of these matters were being pursued in the "no case" submission and that there was no mere repetition of what had already been raised before and dealt with by Wright J, President. The prosecutor did not agree, submitting that in substance most of the "no case" submission was a repetition of what had been rejected Wright J, President. REOPENING OF THE PROSECUTION CASE 6 When it became known to the prosecutor that the defendant wished to challenge the legal effect and adequacy of the Minister's authority granted to Mr Coombs and whether it amounted to a consent in accordance with the provisions of s 48(1)(a) of the Act, the prosecutor, by way of Notice of Motion, sought leave to re-open his case in order to adduce further evidence concerning the circumstances in which the Minister gave his authority and consent to prosecute the defendant. This course was vigorously opposed by senior counsel for the defendant, who pointed out that the defendant had made it clear throughout the proceedings that it would not commence its case until the prosecution case had been closed. It was said that the prosecution had turned its mind to the issue of whether or not the proceedings were consented to by the Minister and had tendered an "authority" signed by the Minister and that was the extent of its evidentiary case in relation to compliance with the requirements of s 48(1)(a). It was asserted that the defendant was under no obligation to alert the prosecution to any defect in its case, including a defect in the consent under which it brought the proceedings. There was no failure to call evidence by inadvertence because the prosecutor had clearly addressed the issue and had tendered a document in purported compliance with the provisions of s 48(1)(a). The criminal nature of the proceedings made it inappropriate for the prosecution to be permitted to re-open its case unless it could bring itself within the stringent tests for re-opening laid down by the criminal law. It was submitted that the prosecution could not bring itself within these limitations and that the defendant's challenge to the adequacy of the authority obtained under s 48(1)(a) should be dealt with on the evidence as it stood at the close of the prosecution case. 7 The defendant also submitted that the issue it had raised went to jurisdiction: the Court had no jurisdiction to hear the matter further as the prosecution had not proved the consent of the Minister to the prosecutions (Berwin v Donohue (1915) 21 CLR at 25; R v Bates (1911) 1 KB 964 at 965; Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36 at 38). The prosecution of the defendant under s 15 of the Act was a criminal proceeding in which the onus was on the prosecutor to prove the offence against the defendant to the criminal standard (SRA v Dawson (1990) 37 IR 110 at 121). The prosecutor had to prove the guilt of the defendant and no attempt to whittle down that obligation could be entertained (citing Viscount Sankey LC in Woolmington v DPP (1935) AC 462 at 481). The ultimate onus of proving all elements of the offence rested upon the prosecutor and if the prosecutor did not discharge this onus the defendant was entitled to be acquitted (Griffiths v R (1994) 125 ALR 545 at 548). 8 Finally, the defendant submitted that it was under no obligation to inform the prosecutor of the nature of the defence it wished to raise. In the present case the defendant had pleaded not guilty to the offences alleged: it had made no formal admissions. Where a not guilty plea is entered the prosecutor should realise that all issues are "alive" and it cannot be taken by surprise (Inspector Taylor v Fletcher International Exports Pty Ltd [2001] NSWIRComm 155]. Further, no rule of the Court required notice of a "no case" submission. 9 The prosecutor submitted that the entire "no case" submission and, in particular, the challenge to the adequacy of the Minister's consent under s 48, was "an interlocutory or other application in relation to proceedings already commenced" and by Rule 68 of the Industrial Relation Commission Rules 1996 "must be made by motion". In the absence of such a motion or an application to waive the rules under Rule 88, the so-called "no case" submission was not properly before the Court. Further, the prosecutor submitted that it had been denied procedural fairness by the approach adopted by the defendant in the manner in which it had raised its "no case" submission. This result was said to flow from the fact that the proceedings had been commenced pursuant to Rule 217B supported by an affidavit verifying the allegations made in the application, and none of these documents had been disputed by the defendant. In particular, the defendant did not dispute that these documents proved that the Minister had in truth consented to the prosecution, noting that in Mr Coombs' affidavit in support of an application for an order he had stated that "on 13 October 2000 the Minister for Industrial Relations in writing consented to proceedings in these matters being instituted by me …". Also, in the opening paragraph in each application for order for prosecution, Mr Coombs had stated that he was "… a person empowered by the Minister for Industrial Relations pursuant to s 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter …". Mr Coombs had been called to give evidence but he was not challenged in cross-examination by the defendant as to these matters. This was alleged to be a clear breach by the defendant of the rule in Brown v Dunn. In any event the prosecutor asserted a right to call further evidence on the issue of the Minister's consent because it was a matter of law and one for the judge to determine (R v Harkins [1958] VR 543 at 545). 10 At the conclusion of the oral argument on the prosecutor's Notice of Motion to adduce further evidence in relation to the Minister's consent, I ruled that, at the very least, the present circumstances were sufficiently special or exceptional to permit the prosecutor to re-open his case in relation to this matter (Shaw v R (1952) 85 CLR 365 at 380). While it may have been appropriate for the defendant to proceed by way of Notice of Motion, especially where a challenge to jurisdiction was to be mounted, the present circumstances did not so embarrass the prosecutor as to require such an approach: this was a case where, if required, relief from the application of the Rules was warranted. Requiring a Notice of Motion would have been likely to lead to an adjournment and, in any event, the argument on the "no case" submission was of sufficient significance to entitle the prosecutor to an adjournment in order to permit a considered reply. 11 The precise issue of whether a prosecutor should be permitted to re-open in order to prove an authority or consent to commence the prosecution has been considered on a number of occasions. The first consideration to note is that the proof of an authority or consent to prosecute is to be properly regarded as a matter of procedure and does not form an element of the offence (see the cases discussed in Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [20002] NSWIRComm 127). In Dever v Creevey ex parte Creevey [1992] 1 QdR 232, the Full Court held that, where an issue as to the existence of a requisite consent to prosecute was raised, the prosecution was obliged to prove it if its case was not to fail; and, subject to questions of costs, leave would normally be granted to the prosecution to re-open its case when it had initially overlooked such a consent. In the judgment of McPherson A.C.J., his Honour noted that there were cases that implied, if they did not actually decide, that the prosecution should prove the appropriate authority before the close of its case or, if the matter is overlooked, should prove it by leave granted at some later time citing R v Bacon [1973] 1 NSWLR 87, 96. His Honour, at 236-237, went on to state: However, in Turner v Tsaousis (1974) 7 S.A.S.R 489, 491, Hogarth J, while agreeing that "absence of a necessary consent is a matter of substance", went on to say that "failure to call evidence of an alleged existing consent is a procedural matter", as to which the prosecution should be granted leave to re-open its case if it had previously been overlooked … . It is, I think, also clear from the decision in that and other cases that the requisite consent is not to be considered as in the nature of an element of the offence. It is one of procedure: Price v Humphries [1958] 2 QB 353; Turner v Tsaousis; which ought to be adverted to and disposed of before the summons issues or the indictment is presented: Price v Humphries. As a point going to procedure rather than to merit or substance, it is capable of being cured by production or by proof of the consent even after the prosecution case has been closed: Price v Humphries; Schulz v Virgin (1966) SASR 94; Turner v Tsaousis. The present case does not readily fit into any of these categories. Here the point was taken by the defendant only after the prosecution case was closed. Proof of the consent given on section 94(6) was objected to, but no application to re-open and tender the consent was made; if it had been applied for, the authorities show that it could not properly have been refused. 12 In a separate judgment, Thomas J stated: Questions may arise as to the grant of leave to the prosecution to re-open its case when it has initially overlooked proof of such a matter. Without circumscribing the discretion of the magistrate in such a case, it would seem that subject to questions of costs, leave will normally be granted. This is the view expressed in R v Bacon and Cox (at 96,) in Timaru Transport v Ministry of Transport (1980) 2 NZLR 638, 647, and Schulz v Virgin [1966] SASR 94. The third member of the Court, Byrne J, was of the view that, if leave had been sought to prove the consent to prosecute, then leave should have been granted to deal with this matter of procedure. 13 In Schulz v Virgin (1966) SASR 94, Walters AJ stated (at 96): It may be noticed that upon the objection being taken by the appellant's counsel, no application was made by the respondent's counsel to re-open the prosecution case to enable evidence of the authority from the local board to be admitted, nor did his counsel state the authority was available for production. I would have thought that application to re-open the case, if made at that stage, would have succeeded; there is no rule of practice against re-opening a case for the prosecution, if objection is made at the close of the case that some formal proof has not been given (Hargreaves v Hilliam (1894) 58 J.P. 655). 14 In Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223, the Full Court of the Supreme Court of Western Australia considered a prosecution under the Environmental Protection Act which required the consent of the Minister. Malcolm CJ recorded that one of the prosecution witnesses, who was an officer employed by the Environment Protection Authority, was asked in cross-examination whether the Minister had given his consent to the prosecution. The answer was given in the affirmative and in re-examination he said that he had seen the complaint and the signature on it was that of the Chief Executive Officer. The witness repeated that the Minister had consented to the prosecution but counsel for the appellant objected to this evidence on the ground that it was hearsay and submitted that the consent should be proved in some other way. At the close of the prosecution case, counsel for the appellant submitted that there was no case to answer because, amongst other things, the Minister's consent had not been proved. The prosecution then sought and obtained leave to re-open so as to tender evidence of consent. His Honour noted that in Price v Humphries [1958] 2 QB 353 the Justices had refused leave to the prosecution to re-open to prove the consent of the Minister as required by the National Insurance Act. It was also noted that Devlin J had stated, that flowing from the duty of the Clerk to the Justices to satisfy themselves that consent had been properly given, prima facie the position was that the summons had been properly issued and there was no need for the prosecution to take any further step unless objection was taken. However, if objection were taken then the prosecution must be in a position to prove the consent. It was held that the Justices were wrong in refusing to permit the prosecution to re-open the case. Malcolm J, at p 230, then stated: Both Devlin J (at 358) and Lord Goddard CJ (at 359) made it clear that where an objection went to procedure and not to the merits the defence should take the objection before the close of the prosecution case. If the objection is taken after the close, the Justices should allow the prosecution to re-open. 15 In a different context, Kavanagh J recently dealt with a prosecution application to call fresh evidence, after its case had been closed, in order to meet a defence submission that the time limit for the commencement of proceedings under s 49(1) of the Act, on the face of the document, had not been complied with and therefore the proceedings were out of time (Workcover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd; Workcover Authority of New South Wales (Inspector Mansell) v Luis Bustamante [2002] NSWIRComm 187). That argument arose because the prosecutor had relied upon the extended time available under s 49(4) of the Act following a coronial inquiry. Her Honour pointed out that the Full Court in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Ltd (2002) 112 IR 332 at paragraph [91] had adopted what was said by Thomas J in R v Cooling [1990] 1 Qd R at 378, namely: Commencement of the prosecution within the prescribed time limit is not an element of the offence, and there is no requirement that the indictment show compliance with such requirement on the face of the indictment. 16 Her Honour then referred to the judgments in Price v Humphries and the judgment of Devlin J to which I have referred earlier, where it was stated that, if the defence was to challenge the adequacy of authority, then it should take the objection before the prosecution case is closed. Her Honour then referred to the separate judgment of Lord Goddard CJ in Price v Humphries (at 359): In a case such as this justices would do well to bear in mind that there is a distinction between an objection which goes to the merits and one which goes only to procedure. If it goes to the merits and the prosecution have failed to prove something upon which the guilt or innocence of the defendant depends, justices must be very careful about allowing cases to be re-opened and must consider the doctrine laid down in Rex v Day 27 Cr App R 168. But if it is only a matter which goes to procedure as this does … then I do not think that they ought to allow an objection which has been, so to speak, kept up the sleeve until the last minute so that when the prosecution have been induced to say: "we have closed our case", it is then said: "you have not proved consent". I think that if they bear in mind the difference between an objection which goes to the merits and one which only goes to procedure, many of the difficulties will be cleared up. Those observations have relevance in dealing with the defendant's objection to the prosecution re-opening on the question of the consent of the Minister under s 48(1)(a) of the Act. 17 These authorities seem to clearly establish the following propositions: (a) that a challenge to the existence or adequacy of a consent or authority to prosecute should normally be taken at the time when the consent is tendered or, if not tendered, prior to the close of the prosecution case; (b) there is a presumption that a valid authority to prosecute exists but if objection is taken after the close of the prosecution case, then it is proper to permit the prosecution to re-open in order to prove the consent or authority to prosecute. In the present case, it was proper and appropriate to permit the prosecution to re-open its case in order to prove the Minister's consent to the prosecution notwithstanding that the purported written consent of the Minister had been tendered without objection during the course of the prosecution case and before its case was closed. The authorities re not limited to permitting a re-opening only where there is inadvertence. THE VALIDITY OF THE CONSENT PROVIDED BY THE MINISTER 18 In Morrison v Dartbrook Coal Pty Ltd, I gave consideration to the nature and requirements of s 48(1) of the Act. Insofar as is relevant for the purposes of the present proceedings, I concluded that: s 48(1) is procedural and not an element of any offence under the Act; the Act does not prescribe any form as necessary to constitute consent to commence a prosecution; the consent does not need to specify or particularise a charge under any nominated statutory provision but can be general in nature; it is not necessary to allege all the elements of the defence in the consent; a signature on the form of consent is sufficient; the consent or authority may be contained in a separate document to the information or summons; all that is required is the signature of the designated person in order to institute proceedings; and, it is erroneous to impose super added conditions and administrative requirements upon a general consent. For the reasons outlined in my judgment in Dartbrook Coal, I adhere to those propositions and adopt them for the purposes of deciding the present application by the defendant. 19 I note that in a subsequent decision, Schmidt J has also accepted a number of the above propositions (Rodney Morrison v United Collieries Pty Ltd [2002] NSWIRComm 173). Her Honour noted that the consentprovided by the Director General in that case had provided a general consent, "thereby plainly leaving it to others to formulate the terms of the charge or charges to be laid pursuant to his consent". The offences charged indeed fell within the wide terms of the consent given although the consent itself did refer to s 15 of the Act. Additionally, and of some importance, her Honour's concluded view was that the standard of proof required in relation to establishing a consent to prosecute was not the criminal standard (see paragraph [66] et seq.). 20 The defendant also argued that there was, on a proper consideration of the cases, no Australian authority for the proposition that a consent in general terms would suffice: Berwin had to be confined to its particulars facts where only one section of the relevant act was involved - the prosecution therefore had to proceed under that section. In view of the authorities considered in Dartbrook Coal, I think it is too late to revisit the authorities to the contrary. In Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR at 38, Brennan J accepted Berwin as authority for the proposition that a Minister's consent expressed "in quite general terms" would suffice. I accept the correctness of that approach. 21 The document relied upon by the prosecutor, and tendered before its case was closed, was in the following terms: AUTHORITY TO PROSECUTE OCCUPATIONAL HEALTH AND SAFETY ACT 1983 SECTION 48(1)(A) Pursuant to s 48(1)(a) of the Occupational Health and Safety Act 1983, I hereby give authority to Robert Darcy Coombs to commence proceedings for an offence or offences against the Occupational Health and Safety Act 1983, against Patrick Stevedores Holdings Pty Ltd. The document was signed by the Honourable John Della Bosca MLC, Special Minister of State, Minister for Industrial Relations, Assistant Treasurer, Minister Assisting the Premier on Public Sector Management, and Minister Assisting the Premier for the Central Coast. The document carried a handwritten date "13/10/00". The proceedings were then commenced by application for order under s 168 of the Industrial Relations Act 1996 and s 4 of the Supreme Court (Summary Jurisdiction) Act 1967 on 26 October 2000 and on 15 December 2000. 22 The "Authority to Prosecute" referred to above was attached to a letter from the Minister directed to solicitors acting for Mr Coombs: this was established by the prosecutor in the re-opened case. That letter, also dated 13 October 2000, stated: I refer to your recent letter seeking my consent to commence prosecutions against Patrick Stevedores Holdings Pty Ltd under s 48(1)(a) of the Occupational Health and Safety Act 1983. In view of the strong prosecution case outlined in the advice of J W Shaw QC and B G Docking of counsel, I have decided to consent to prosecution action against Patrick Stevedores Holdings Pty Ltd pursuant to the Occupational Health and Safety Act 1983 in relation to the issues raised in that advice. Find attached the relevant signed authority. 23 The advice of counsel, which was forwarded to the Minister apparently with the MUA's representations, ran to some 37 pages and contained an analysis of the Occupational Health and Safety Act, the provisions of s 48(1)(a) and various documents which it was said disclosed the risk to health which resulted from the manner in which the employer conducted its straddle crane operations. It was stated that there was, and continued to be, a potential risk to the health, safety and welfare of any and all of the employees in that there was risk of neck, shoulder, spine, upper limb and/or back injuries. Counsel expressed the view, based on what was currently available evidence, that for each of the proposed five charges under the Act there was a prima facie case, that there were reasonable prospects of conviction and that a successful prosecution was more likely than not. Indeed, counsel expressed the view "that there is a strong case for the prosecution under s 15(1) of the OHS Act and it is difficult to envisage that PSH will be able to successfully raise any defence that is available under s 53 of that Act". 24 The advice covered the following areas: (a) why it was necessary for the Consent to Prosecute to be sought by the MUA from the Minister under s 48 of the OH&S Act; (b) an outline of the sources of the evidence currently available to the MUA which was said to include extensive admissions in statements taken from PSH's own employees and from its own documents; (c) a brief factual summary; (d) the elements of the s 15 offences under the OH&S Act; (e) an explanation of the particulars proposed by the MUA for each of the five charges including references to some of the main sources of evidence; (f) the statutory defences in s 53 of the OH&S Act; (g) the policy considerations that militate strongly in favour of prosecuting; (h) the fact that a successful party in an OH&S Act prosecution ordinarily obtains an order for costs which provides some protection to PSH; (i) the form of the s 48(1)(a) written consent sought from the Minister. In the course of dealing with these topics, the Minister's attention was drawn to various decided cases. In relation to the consent to prosecute, the Minister's attention was drawn to the judgment of the Full Federal Court in Traveland Pty Ltd v Doherty (1982) 6 A Crim R 181 at 185 relating to the purpose of provisions such as s 48, noting that it was not necessary for the Minister to have considered and approved every detail of the charge as it ultimately might appear in the indictment. By reference to R v Cain [1976] 1 QB 496 at 502, it was said that the Minister's duty was to consider the general circumstances of the case and to decide whether any and, if he thought fit, which of the provisions of the Act could be properly pursued against the defendant who was to be charged. It was pointed out that the MUA was not an "industrial organisation of employees" for the purposes of the Occupational Health and Safety Act because it was not a organisation registered or taken to be registered under Chapter 5 of the Industrial Relations Act 1996 (NSW). 25 The advice then addressed the elements of an offence under s 15 stating them to be: (a) The defendant was an employer; (b) there was a risk to the health, safety or welfare of the employer's employees; (c) there was a relevant failure and/or admission on behalf of the employer; (d) There was a causal connection between the conduct of the defendant in (c) above and the risk to the health, safety or welfare of the employees in (b) above. Each of the elements was then addressed by reference to case law and the facts known to the MUA. By reference to the five-draft summons attached to the advice, counsel addressed the relevant failures and omissions on behalf of the employer. Reference was also made to documents (some of which were in the possession of the employer) and statements of employees. 26 In the final pages of the advice counsel addressed the appropriate form of the s 48(1)(a) written consent. It was suggested that the written consent sought was essentially in terms approved by the High Court in Berwin v Donohue. Appropriately modified, consent was requested in the following terms: The Minister of Industrial Relations hereby consents to prosecutions being instituted by Robert Darcy Coombs against Patrick Stevedores Holdings Pty Limited for offences against the Occupational Health and Safety Act 1983. It should be noted that the authority to prosecute actually provided by the Minister was in the following terms: Pursuant to Section 48(1)(a) of the Occupational Health and Safety Act 1983, I hereby give authority to Robert Darcy Coombs to commence proceedings for an offence or offences against the Occupational Health and Safety Act 1983, against Patrick Stevedores Holdings Pty Limited. 27 It was not contested in the proceedings before me that the five prosecutions commenced by way of summons were, except for a minor amendment to the time at which these offences were commenced (an amendment which flowed from the timing of the Minister's consent), in the same form as the draft summonses which were placed before the Minister when the MUA sought his consent to commence the proceedings. 28 The defendant's challenge to the adequacy of the Minister's consent formed a significant part of its "no case" submission but was structured on the basis of the evidence at the close of the prosecution case and before the prosecutor was permitted to re-open and tender the material referred to in paragraphs [21] to [25]. Points such as the lack of evidence that the Minister had turned his mind to the issue about which consent was sought and whether the Minister had given permission to these particular proceedings, the absence of an identified date of any alleged offence and the impossibility of knowing what was in the Minister's mind as to what prosecutions he was giving consent to, lost any potency which they could muster after the re-opening of the proceedings. 29 Even without the additional evidence tendered in the prosecution's re-opened case, the authorities referred to in Dartbrook Coal would lead to the general authority given by the Minister in October 2000 being regarded as adequate to constitute a valid consent under s 48(1)(a). The additional evidence, however, demonstrates that the Minister had before him considerable detail as to the proposed s 15(1) prosecutions and the evidence in support of them. In addition, he had, in draft form, the precise charges which Mr Coombs proposed together with their particulars. It also seems clear from the Minister's covering letter of 13 October 2000 that he accepted the advice of counsel that there was a strong prosecution case and then stated "… I have decided to consent to prosecution action against Patrick Stevedores Holdings Pty Ltd pursuant to the Occupational Health and Safety Act 1983 in relation to the issues raised in that advice". In the light of that evidence there is, in my view, no room for the type of technical challenge raised in the defendant's "no case" submission. It is of passing interest to note that it appears from other evidence that the defendant had come into possession of the joint advice submitted to the Minister in support of securing his consent to these prosecutions as a result of a summons issued for production of documents by the defendant. Further, it is well established that the Court is entitled to presume the existence of a relevant consent to prosecute in the absence of a challenge to the consent (Berwin citing in R v Metz 11 Cr App R 164). A number of the defendant's submissions paid no regard to these matters. 30 It should also be noted that the terms of the Minister's consent varies from that which was drafted in the joint advice of counsel as being an appropriate form of consent for the purposes of Mr Coombs bringing these proceedings. In my view, two inferences arise: firstly, the changed form of consent is evidence that the Minister brought his own mind to bear, undoubtedly with the aid of his own advisors, on whether or not a consent to prosecute should be granted in relation to the operation of straddle cranes by the defendant; and, secondly, the Minister was prepared to leave it in the hands of the prosecutor as to whether one charge or a number of charges under the Act were brought against the defendant. There can be no complaint about the Minister leaving the precise form of the prosecution in the hands of the persons seeking consent and this course has been expressly approved in Berwin (at p 25 - 26) and in Traveland Pty Ltd v Doherty at 186). It is also of significance that the Minister's consent was not confined or limited: thus problems do not arise such as were found to exist by Brennan J in Gilmour v Midway Springwood Pty Ltd - where the Minister was found to have consented to one offence but another offence was found in the information leading to the prosecution being dismissed. 31 The fact that the prosecution summonses filed in the Registry are relevantly in the same terms as the draft summons which were placed before the Minister when Mr Coombs was seeking his consent, places these proceedings, in effect, in no different position to the challenge in Water Board v Environment Protection Authority (1994) 83 LGERA 174. In that case, Blanch J, at p 178, speaking for the Court of Criminal Appeal, stated: It should be noted the form of consent signed by the Minister in respect of each of the four charges was a consent to prosecute for an offence in exactly the same terms as the terms of the charges which were prosecuted. There is in consequence a difficulty for the appellant to overcome in submitting there was no relevant Ministerial consent to these prosecutions. Later in the judgment, Blanch J dealt with general issues which are also raised in the defendant's "no case" submission. His Honour, at 179, stated: The appellant seeks to advance its argument by describing the consents as containing "a latent duplicity". That is language commonly used when discussing the terms of an information or indictment which must be specific in identifying the subject matter of the prosecution: see, eg, Stanton v Abernathy (1990) 19 NSWLR 656; Director of Public Prosecutions v Merriman [1973] AC 584; John L Pty Ltd v Attorney-General (NW) (1987) 163 CLR 508; Johnson v Miller (1937) 59 CLR 467. The law insists that persons accused must know the accusation they must meet. The same principle, however, does not apply to consents. A consent can be in the most general terms - see Berwin v Donohoe - and the public policy which requires a consent to be based upon the desirability of ensuring prosecutions are not frivolous or technical and that they are only brought in the public interest. It is for that reason the essential question in respect of a consent is the more general one as to whether the proceedings have been instituted with the consent of the Minister. The consents in this case are to the precise charges which were prosecuted. It is not necessary for the consents to go into particulars. They cannot fail for that reason: see Traveland Pty Ltd v Doherty. Nor did the consent forms particularise other offences not the subject of the prosecutions and they cannot fail for that reason: (see Gilmour v Midway Springwood Pty Ltd). On their face they refer to these prosecutions and no material was brought forward to raise even a suggestion that they, or any of them, referred to some unrelated offence. The underlying question of policy is whether the Minister considered these breaches of the relevant Acts by the appellant and gave his consent to the prosecution of the appellant in respect of those breaches. I do not believe the trial judge erred in concluding on the evidence before him that the Minister did so consider these breaches and there was a valid consent to the institution of these proceedings. On the evidence in the present proceedings, the Court is aware of at least some of the material that was considered by the Minister when he granted his consent. Although his consent was in general terms and permitted the prosecutor to pursue a single offence or a number of offences, to come within the consent which in fact was granted, those prosecutions would need to be confined to the operation of straddle cranes by the defendant at its Port Botany location and probably would be limited to prosecutions brought for a breach of s 15 of the Act as they were the only matters raised for the Minister's consideration. Each summons meets these requirements. 32 The defendant referred to a number of cases that spoke of the need for there to be consent, in fact, to the prosecutions which were commenced. This line of authority was also discussed in Dartbrook Coal. On the totality of the evidence, I am satisfied that the Minister has, in fact, consented to the five prosecutions which have been filed and commenced by the prosecutor. 33 The next point raised by the defendant is that the document signed by the Minister (as set out in paragraph [15] above) was headed "Authority to Prosecute" and contained the words " … I hereby give authority … to commence proceedings …". Section 48(1)(a) required the Minister to give his "consent", not his authority: the defendant submitted that these were distinct and different concepts. Although s 48 carried the heading "Authority to Prosecute", the operation of s 35 of the Interpretation Act 1987 prevented the heading being taken as part of the Act and therefore available in the construction of the section. The defendant submitted that the document should at least be recognisable as one consistent with the Statute requiring the Minister's consent. 34 In relation to the defendant's contention that there was a clear dichotomy between the concepts of "consent" and "authority" reference was made to Jowitt's Dictionary of English Law and Stroud's Legal Dictionary where "consent" is defined as: An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. It was submitted that to give a consent requires the consent giver to turn his or her mind to the issue and to make a determination to agree or assent to the proposal. To give consent was a personal act that could only be delegated if provided for by the legislation. Thus, in R v Bacon the Court of Criminal Appeal, in determining whether the Minister had "approved" the institution of proceedings under the Obscene and Indecent Publications Act 1901, stated that the Minister must decide in his own mind to approve. 35 Jowitt's Dictionary, on the other hand, defined "authority" to mean a right, an official or legal command, a legal power to do an act by one man to another. The Macquarie Dictionary defined authority as "the right to determine, adjudicate or otherwise settle issues or disputes; the right to control by command or determining". In Ex parte Johnson; re MacMillan (1946) 47 SR (NSW) 16, Jordan CJ said at p 18: The word authority according to its natural meaning, signifies the conferring upon a person of a right to do something which apart, from the authorisation, he does not possess. 36 The defendant submitted that giving a person the authority to do an act involves the delegation or handing over of power of the Minister. It was submitted that giving authority does not involve the same personal decision by the Minister which is inherent in the giving of consent. Giving a person the authority to bring proceedings does not mean that the statutory objects of a provision such as s 48(1)(a) of the Occupational Health and Safety Act are satisfied. Further, it was submitted that to give consent and to grant authority were not synonymous: they were qualitatively different concepts. In Dever, Thomas J noted the difference between a person having the authority to do something and consenting to use that authority. 37 Lastly, it was submitted that s 48(1)(a) was part of the penal provisions of the Act and hence should be construed strictly. In relation to this submission I dealt with a similar proposition in Dartbrook Coal stating: [60] Although the Act imposes criminal penalties s 48 is procedural - it forms no part of the offence and is not an element of the offence (Price v Humphries; Turner v Tsaousis; Dever v Creevey; ex parte Creevey; Maccarron v Coles Supermarkets (Aust) Pty Ltd. Thus, although the Act creates offences and provides a penalty, the ordinary rules of construction are applied - a strict approach is unnecessary (Beckwith v R (1976) 135 CLR 569 at 576 per Gibbs J). No ambiguity arises as was discussed in Capral Aluminium v WorkCover Authority of New South Wales (1999-2000) 49 NSWLR 610 at 629-30. I propose to adopt the approach I took in Dartbrook Coal in relation to the present proceedings. 38 In Dartbrook Coal, on the evidence presented as to the deliberation of the Director General of the Department of Mines to institute proceedings, I was satisfied that by endorsing a memorandum, recommending that prosecutions under the Act be commenced, with the word "approved", the Director General had given his consent under s 48(1)(a). In reaching that conclusion, I was influenced by the judgment of the Court of Criminal Appeal in John Graham Kemp v Gough & Gilmour Holdings Pty Ltd (NSW CCA - unreported, 14 February 1995) where Carruthers J, speaking for the Court, stated: Some statutes require the "consent" of the relevant organisation, others require the requisite "approval": others require the requisite "authority". It does not matter which word is used as they all have the same effect and are intended to achieve the same purpose. If such consent, approval or authority is required to be in writing, it is clearly sufficient if it is endorsed on the information or other documents initiating the proceedings. The defendant submitted that this approach could not be correct: given the clear dichotomy between the concepts of "authority" and "consent" and, in circumstances where the legislature has chosen the word "consent", it could not be that the words "consent" and "approval" or "authority" could all have the same meaning. I cannot agree with the thrust of this submission. 39 While "authority" has the meanings the defendant referred to as set out in the Macquarie Dictionary, they are not the only meanings - the word "authority" also means "a warrant for action; justification". The same dictionary defines "consent" to mean: "to give assent; agree; comply or yield; to consent to the request; to consent to do this". It also lists the following meanings for the word: "assent"; "acquiescence"; "permission"; "compliance". Black's Law Dictionary (5th ed) defines "authority" in the following manner: "Permission. Right to exercise powers; to implement and enforce laws; to exact obedience; to command; to judge: Control over; jurisdiction. Often synonymous with power …". The same Dictionary defines "consent" as follows: "a concurrence of wills. Voluntarily yielding the will to the proposition of another; acquiescence or compliance therewith. Agreement; the act or result of coming into harmony or accord. Consent is an act of reason, accompanied with deliberation, the mind weighing as in a balance the good or evil in each side. It means voluntary agreement by a person in the possession and exercise of sufficient mental capacity to make an intelligent choice to do something proposed by another. It supposes a physical power to act, a moral power of acting, and a serious, determined and free use of these powers". These dictionary definitions demonstrate that, while the words "authority" and "consent" can be significantly different in their content, they also encompass concepts which are similar and to an extent may overlap. 40 The most important matter to be considered is, indeed, the words of the Statute. Section 48(1)(a) requires the "consent" of the Minister. The section is headed "Authority to Prosecute". While the Interpretation Act will not permit the use of the heading in the construction of the provisions of a section, Professor Pearce in his much quoted work "Statutory Interpretation in Australia" (Butterworths, 5th ed) acknowledges a number of circumstances in which the courts have given consideration to a heading. In paragraph [4.47] he noted that Moffitt P and Street CJ in the Ombudsman v Moroney [1983] 1 NSWLR 317 indicated that, while a note would rarely be of significance in resolving an ambiguity, that was not a basis for denying the right to refer to notes in all cases. A similar view was expressed by Lords Reid and Upjohn in R v Schildkamp [1971] AC 1 where they stated that marginal side notes would rarely be of any use in interpreting an Act but they should not be rejected completely as aids. In the present case, no issue arises as to the construction of s 48(1)(a). The section is headed by a reference to "authority" but the section itself refers to "consent". It seems clear enough that in this context no great distinction was being drawn and it is therefore understandable that, when the Minister came to consider the provisions of s 48(1)(a), he may have chosen the word "authority" to encompass the concept of "consent" as required by the section. Certainly, as demonstrated above, the ordinary dictionary meanings of the words, in certain circumstances, will allow that to occur. 41 In my view, however, the matter is resolved by what in fact the Minister did in relation to the representations made by solicitors acting for Mr Coombs and the MUA. The joint advice of counsel specifically sought the Minister's consent to commence five prosecutions against the defendant, clearly nominating the necessity to comply with the provisions of s 48(1)(a). The joint advice also offered a draft form of consent under s 48(1)(a) for the prosecutions. The Minister's letter of 13 October 2000 recorded that solicitors for the prosecutor had sought "my consent to commencing prosecutions against Patrick Stevedores Holdings Pty Ltd under s 48(1)(a) of the Occupational Health and Safety Act 1983". Having been persuaded by the joint advice of counsel that there was a strong prosecution case, the Minister said he had "decided to consent to prosecution action against Patrick Stevedores Holdings Pty Ltd pursuant to the Occupational Health and Safety Act 1983 in relation to the issues raised in that advice". The letter then said there was attached "the relevant signed authority". At this point, the proposed prosecutor and the Minister were clearly dealing with an application for consent under s 48(1)(a) of the Act. 42 The defendant's submission appears to be that because the Minister signed a document headed "Authority to Prosecute" in which he gave "authority to Robert Darcy Coombs" to commence proceedings for an offence or offences against the Occupational Health and Safety Act 1983 against the defendant, the Minister has somehow misunderstood what was requested of him and has misunderstood what he had to do in relation to the application made pursuant to s 48(1)(a) of the Act. I cannot accept that submission. This is another case where the substance of the matter must be considered rather than its form. Quite apart from the content of the joint advice and the Minister's letter recognising that it was his "consent" that was sought under s 48(1)(a), the document provided by the Minister as a "authority to prosecute" nevertheless contained in the heading the words "Occupational Health and Safety Act 1983" and underneath it "Section 48(1)(A)". There is nothing under the Occupational Health and Safety Act 1983 nor in s 48(1)(a) that permits the Minister to give an "authority" rather than a "consent". It is not a case where there are some parts of s 48(1)(a) whereby a consent is required and other parts of the provision where an authority may be required. The only matter this section deals with is "consent" although the heading of the section referring to "authority to prosecute" undoubtedly is a recognition that no great distinction is made in this legislation. As I have said earlier, the use of the word "authority" in the heading to this section which requires the Minister's "consent" may provide a reason for the use of the word "authority" in the document signed by the Minister on 13 October 2000. Whatever be the reason, I am in no doubt that the document, in substance, is a consent given pursuant to s 48(1)(a) of the Act and that the Minister has consented to these proceedings. I therefore reject the first ground of the defendant's "no case" submission. DUPLICITY 43 In both written and oral submissions the defendant pursued that part of its case alleging duplicity which was not dealt with to finality by Wright J, President on the 2001 Notice of Motion. The matter left open by Wright J, President was his Honour's view that it was appropriate for the trial judge to deal with the defendant's objection that each charge was duplicitous and could not be saved by being properly characterised as a "continuing offence". 44 The defendant alleged that each charge was duplicitous; although purporting to allege a single "continuing event" over a period, it was in fact a rolled up charge of multiple offences and it was not possible to identify the date upon which any single offence may have occurred. 45 The defendant submitted that each act or omission, which constituted a failure specified in s 15(2) or otherwise amounted to a breach of duty under s 15(1), was a separate offence (Boral Gas v Magill (1995) 35 NSWLR 150 at 179). It was accepted that the decision in Boral Gas led to the enactment of s 49A of the Act. That provision, it was submitted, did not assist in this case. Section 49A enabled the prosecutor to lay as one charge, a number of different breaches of s 15 if the circumstances point to, for example, a failure to maintain safe plant and a failure to provide necessary instructions. 46 In this case, so said the defendant, the prosecutor, if the evidence proved such a course, could have alleged as one charge a number of breaches of s 15 on a single day. Instead, the prosecutor has alleged in five different offences a continuing state of affairs which, if the allegations are true, involve multiple offences charged as one. Each allegation appeared to be that, on multiple occasions between the dates alleged, the defendant failed in multiple respects to comply with s 15, the intention being that every occasion in the "charge period" on which an employee drove a straddle crane, the defendant committed a criminal offence. It was pointed out that the period chosen by the prosecutor in each case was as follows: Matter No 5194 of 2000 - 20.10.98 - 26.10.2000 Matter No 6102 of 2000 - 1.6.99 - 13.9.2000. Matter No 6103 of 2000 - 16.12.98 - 31.5.99 Matter No 6104 of 2000 - 1.5.2000 - 13.9.2000 Matter No 6105 of 2000 - 16.12.98 - 29.4.2000 47 The defendant submitted that the Court was asked to find that on every day during each "charge period" the defendant offended against s 15 in respect of every straddle driver at Port Botany even though it was obvious that every straddle driver did not work on every day during each "charge period" and most appeared to have worked without injury. In any event, s 15, it was argued, did not create "continuing offences": Boral Gas was a decision to the contrary. Nor was there any assistance to be obtained from the decision in CSR v EPA (2000) 110 LGEA 334 at 340-342 - that approach was not apposite to s 15 of the Occupational Health and Safety Act. 48 The charges as framed were said to create the "maximum difficulty to the defence" because of the failure to identify with precision each alleged offence (Walsh v Tattersalls (1996) 188 CLR 77 especially in the judgment of Kirby J at 92 - 113). The defendant submitted that each charge should therefore be dismissed. 49 In oral submissions, senior counsel for the defendant accepted that questions of duplicity under the Act were "difficult" for both the prosecutor and the defence. Duplicity arose in these charges because the alleged breaches of the Act were said to have been committed on innumerable occasions in a rolled up way without specifying what breach occurred in what circumstances and on what day. Section 15 only recognised individual offences committed on defined dates and in defined circumstances. The way the prosecutor framed the charges meant that the defendant faced countless charges, not knowing what they were, when they were committed and in what circumstances they were committed. 50 Section 49A allowed more than one contravention of, for example, s 15, arising out of the same factual circumstances, to be charged as a single offence or as separate offences. It was submitted by the defendant that this section operated so that the prosecutor could lay as one charge a number of different breaches of s 15 if the circumstances pointed to, for example, a failure to maintain safe plant and a failure to provide necessary instructions, and charge that breach as a single offence, although there were a number of breaches on a single day. In the present case the allegations amounted to there being multiple occasions between the dates alleged whereby the defendant failed in multiple respects to comply with s 15 of the Act. 51 The award breach cases, holding that there were continuing offences, were said to be in a classification of their own. Nevertheless, it was submitted, those cases involved the proof of an identifiable act or omission. 52 It is clear that, in dealing with this debate, the proper construction and role of s 49A of the Act needs to be established. Section 49A was introduced by the Occupational Health and Safety Amendment Act (No 51) of 1997. Its introduction followed the split decision of the previous Industrial Court made in 1995 in Boral Gas. Two members of the court held that while s 15(1) of the Act created one general duty, each act or omission constituting a failure of a duty specified in s 15(2) or otherwise breaching s 15(1), was a separate offence under the section. 53 In order to assist in establishing the purpose or object underlying the amendment (and consistent with the provisions of s 33 and s 34 of the Interpretation Act 1987) it is appropriate to consider what was said by the Honourable J W Shaw (Attorney-General and Minister for Industrial Relations) upon the Second Reading of the Bill. Relevantly, the Minister stated: 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 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 a safe system 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 s 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 change will allow the various breaches to be given their due weight in the calculation of penalty, as the court will no longer treat one offence as the major breach, and other breaches as aggravating factors rather than contraventions in their own right. The test for similarity of breaches - that they must arise from the same factual circumstances - is not intended to be overly technical or restrictive. In the example previously mentioned, it would refer to all failures by the employer to ensure health, safety and welfare which are relevant to the factual circumstances of the incident or risk (Hansard of the Debates of the Legislative Council, 14 May 1997, 8501) 54 It appears from the Second Reading speech that the amendment was designed to overcome the technical problems which had been highlighted in the Boral judgments. Further, it appears to be clear that at least part of the legislative intention was to introduce some flexibility into the prosecution process under the Act, so long as the alleged breaches arose out of the same factual circumstances. This appears to be a specific statutory provision applying a less stringent approach than the common law and one designed to avoid complex and technical debates in relation to a complaint of duplicity. (This is not an unusual approach: see the judgment of Gray J in Newbury v Smith (1991) 36 IR 314 concerning the operation of the Federal Court Rules permitting more than one offence in a summons or information). 55 In June 1997, assent was given to the Bill and s 49A entered the Act in the following terms: 49A . Multiple contraventions of Part 3. (1) More than one contravention of s 15, s 16, s17 or s 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 two 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. 56 It is also of significance that the amending Bill which introduced s 49A of the Act followed not only the split decision of the Industrial Court in Boral but also followed the comprehensive review of the law regarding duplicity conducted by the High Court in the case of Walsh v Tattersall, the judgment in that case having been handed down on 2 October 1996. 57 In Walsh v Tattersall, Kirby J conducted a thorough review of the origins of the principle of duplicity and what he described as modern relaxations of the strictness of the rule. In opening this discussion, his Honour at 92 - 94, stated: The common law developed the rules of criminal proceedings for the protection of the liberty of the subject. It required that a person, accused of the commission of a crime, should be informed fully and precisely of the charges contained in the accusation. One rule which evolved from this general principle was the rule against duplicity. No count in any indictment, presentment, information or complaint might charge a person with the commission of more than one offence …. The rule against duplicity in common law procedure may be traced in decisions of the courts in England at least as early as the 17th century. But in this century, and in this Court, it has been upheld and stringently applied in a consistent series of decisions …. The same strictness has been evident in the Federal Court of Australia … . It may also be seen in a number of decisions of State Supreme Courts and Courts of Criminal Appeal …. In recent years, courts in England have embraced a less stringent approach to complaints about duplicity. They have done so by taking what they have described as a "practical" or "commonsense" approach and by rejecting what they have called "technicalities which have no relevance to modern procedure in criminal prosecutions" …. This approach has obtained a degree of support of some academic writers, impatient about the potentiality of the rule against duplicity to afford a technical refuge to an accused person otherwise lacking a case with substantive merits. The English authorities, and some of the impatience with technicality that lay behind academic criticisms, have lately led a number of Australian courts to depart from the rule of stringency suggested by the old line of authorities. In South Australia, the Merriman approach was favoured in Weinel v Fedcheshen (1995) 65 SASR 156. That decision was substantially embraced by the Full Court of the Supreme Court of South Australia in this case. (Walsh v Tattersalls (unreported, Supreme Court of South Australia; 2 November 1995). Thus, behind the resolution of this appeal lies an important question of legal policy. Scholarly analysis of judicial decisions on this subject has produced scathing criticisms, suggesting a failure on the part of the judiciary to identify the applicable principles. Only by clarifying the essential reasons for the earlier stringent approach of this Court, for example in Johnson v Miller (1937) 59 CLR 467, will a coherent doctrine be found which can accommodate the "more modern" "practical" and "commonsense" rule but which is still appropriate to the accusatory character of criminal procedure in Australian courts. 58 In Walsh v Tattersall, an employee had been charged under workers' compensation legislation with obtaining, by dishonest means, payments or benefits made under that legislation. The relevant count related to payments made to the employee between October 1992 and October 1993. In mid 1993, the employee had been interviewed by the police who indicated that he would be charged with 30 offences under the legislation. In the course of this interview, the employee disclosed that he had, indeed, performed some work since 1992 but claimed that he had not been paid for it and had undertaken it to keep himself busy and his mind alert. In fact, the employee was charged with one count which involved numerous payments during 1992 - 1993. A complicating factor was that, after disclosing to the police that he had in fact been working since 1992, the payments continued to be made to the employee and these payments were covered by the periods specified in the charge. Before the Supreme Court of South Australia and in the High Court the employee submitted that he could not properly be called upon to plead to such a charge when there were so many separate payments involved including payments made after he had disclosed that he had been employed. The High Court, by a majority, held that the count should be quashed: Gaudron and Gummow JJ did so on the ground that the employee was not charged with any offence created by the Act because the section displayed an intention to create a discrete offence upon the receipt of any one payment or benefit, and by Kirby J on the ground that the count was bad for duplicity, the purpose of the provision being the creation of a separate offence for each payment or benefit. 59 The judgments in the High Court note that the case against the employee was that during the specified period he was engaged in a course of conduct which amounted to one compendious false pretence of incapacity for work. In their dissenting judgment, Dawson and Toohey noted that the proscription against duplicity was succinctly stated by Archbold (Archbold, Criminal Pleading, Evidence and Practice, 44th ed 1995, Vol 1, p 75), as follows: The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences … This rule although simple to state is sometimes difficult to apply … Duplicity in a count is a matter of form, not evidence . 60 In their joint judgment, Gaudron and Gummow JJ said that the question upon which the appeal turned was not whether in a single count the appellant was charged with more than one offence, but rather turned upon an anterior question: that is, whether the appellant was charged with any offence created by the Act. It was central to the judgment of Gaudron and Gummow JJ that the section under which the employee was charged created an offence for each payment made on a dishonest claim. Their Honours noted that, in a particular instance, the dishonest means by which the result was achieved may comprise a number of untrue statements or wilful non-disclosures, identified as a course of conduct extending over a period. But once a payment or benefit was first so obtained an offence had then been completed. Where there was a temporal sequence of payment or benefits allegedly obtained by dishonest means, the ascertainment of the essential element of dishonesty would be tested at different times. That position was not to deny, in the particular circumstances of the case, that the same untrue statements or wilful non-disclosures may have the necessary operative effect in relation to more than one act of obtaining. Importantly, their Honours were of the view that there was no offence created of "[obtaining] by dishonest means, payment or benefits under [the Act]"; this was the count so expressed. Their Honours considered other sections of the legislation showing that there was an entitlement to weekly payments and other provisions conferring entitlements to payments of a periodic or recurrent nature. It was critical to their Honours' conclusion that the legislation made each payment a separate offence and there was no room for rolling up a number of offences in a single count. Significantly, their Honours, at pp 91 - 92, concluded their judgment in the following terms: In conclusion, it may be observed that the present case is to be contrasted with those dealing with an offence defined in terms of a course of conduct or state of affairs, such as keeping a disorderly house or being a rogue or vagabond (Loftus v Woodworth [1936] VLR 279. There, upon proof of a series of material facts, guilt of the offence may follow, although no particular fact sufficies by itself. Further, the offence created by s 120(1)(a) of the Act may be compared with that with which this court was concerned in Montgomery v Stewart (1967) 116 CLR 220. There the statute fixed upon the single act of giving authority to issue a prospectus containing an untrue statement or wilful non-disclosure, and the character of that act did not depend upon or vary with the number of untrue statements or wilful non-disclosures to be found in the prospectus. Again, Johnson v Miller (1937) 59 CLR 467 turned upon the creation by s 209 of the Licensing Act 1932 (SA) as Dixon J put it, a distinct liability as for a separate offence in respect of each person seen coming out of a licensed premises, unless, perhaps, a number of persons acting in combination were seen to come out of the premises at the same time. 61 In his separate judgment, Kirby J noted the terms of the legislation under consideration and the employee's submission that, while the specific provision referred to obtaining by dishonest means "any payment", the section also referred to "dishonestly claims to be entitled to a payment or other benefit" under the Act. So expressed, the words created a separate offence for a single occasion of dishonesty occasioning each payment. The history of the section also reinforced that conclusion, having been amended in 1991 using the terms "a payment", "a statement" and "a claim". 62 Kirby J also noted the employee's submission that it was fundamental to the common law system of pleading of the counts of a criminal charge that a higher degree of specificity must be observed so that the one count does not contain duplicity. The obtaining of payments and benefits would necessarily occur at different times, and the ascertainment of the essential element of dishonesty of the employee would have to be tested at different times; this represented the essential reason why separate counts were required by law. 63 Before entering consideration of these matters, Kirby J noted that in most cases of alleged duplicity in criminal pleadings, the courts considering the challenge were obliged to examine the substantive basis of the criminal charge or charges in question. The court must then consider whether pleading rules permit the collection of several offences known to law under one count or charge, or require that they be separately expressed in individual counts or charges. His Honour also noted that authority existed to the effect that, in cases of duplicity, the issue is one of form not of evidence or of injustice as such (R v Greenfield, Barker, Creek, Mendleson (1973) 57 Cr App R 849 at 855 - 856). 64 In order to resolve the point of principle which arose in the case, Kirby J examined a number of previous decisions in which the question of duplicity in criminal proceedings arose in order to establish the principles governing duplicity in criminal counts. His Honour's detailed consideration is contained in nine numbered paragraphs set out from page 104 to page 110 of the reported judgment. Without being exhaustive, and hopefully not removing matters from a relevant context, the following points made by his Honour are directly relevant to the present matter: 1. The rule against duplicity has its origin in the history of English criminal procedure. This is a product of the accusatorial trial which had long insisted upon precision in the statement of the charge which the accused has to meet. (John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; R v Thompson [1914] 2 KB 99). Under the rule of precision, no one count of the indictment should charge the accused with having committed two or more separate offences … The rule has long been regarded by this court as an important one … 2. The exact origins of the rule are lost in time. But the rule can certainly be traced to periods in the history of the common law where there was severe technicality and precision with respect to pleadings generally, in some ways inimical to modern approaches to such matters which tend to be impatient with strict rules when they become obstacles to the perceived goal of attaining substantive justice. Some authors explain that the strict approach was developed by judges in a humane desire to alleviate the extreme severity of the law … The passage of Jervis' Act in England (Summary Jurisdiction Act 1848 (UK)) led, in turn to legislation such as is now found in the Summary Procedure Act 1921 (SA). By such enactment the excessive technical approach to criminal proceedings, apt for the past, was no longer universally required. Just as in civil procedure there has been a loosening of rigidities of technical rules where these would defeat the merit, so in criminal procedure and pleadings, there has been, to some extent, a retreat from technicality. This is evidenced in Australian decisions such as Byrne v Baker [1964] VR 443 at 458) and in England by Merriman [1973] AC 584). Allowing for the different history and purposes, it is desirable that the same rationality and concern with justice should inform criminal as well as civil pleading and procedure. 3. Nonetheless, there are special features of criminal procedure which continued to sustain the general tendency in favour of a rule of precision and specificity which has hitherto been enforced in this branch of the law. In Johnson v Miller (1937) 59 CLR 467 at 497-498, Evatt J gave a classic exposition … More recently, and after Merriman was decided in the House of Lords, the same strict rule was followed in this court in S v The Queen (1989) 168 CLR 266. Gaudron and McHugh JJ explained why (at 284): The rule against duplicitous counts in an indictment originated as early as the 17th century … it may be … that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea autrefois acquit or autrefois convict … The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet. 4. For the foregoing reasons of history, good prosecution practice and fair conduct of criminal trials, the general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law … but certain questions remain. They are: what exceptions to, or modifications of, the strict rule are allowed and what is to happen where, as here, no objection is taken at the trial but only later on appeal? 5. The apparent artificiality of insisting on applying the rule against duplicity in its full rigour has been highlighted by actual and theoretical instances that have arisen, or been contemplated, where criminal acts occurred in very close proximity to each other. If, for example, criminal acts occurred within a few minutes of time and in close physical proximity, could they be regarded as components of the one activity, so as to be susceptible to treatment as a single count? … If the events were seen as part of one transactional enterprise, this approach has been held to be permissible in England (Director of Public Prosecutors v Merriman [1973] AC 584 and 607). 6. Particular problems arose for the application of the duplicity rule in the case of offences which, of their definition, were constituted by continuous activity. Such offences as keeping a brothel, required proof of particular acts at different times. Similarly, conduct which need not, but in some circumstances might, be constituted by activity over time could quite properly be charged in a single count. Instances where this qualification to the rule against duplicity has been upheld include cases involving charges of harassment …and trafficking in drugs … Verbal formulae have been offered as a suggested test for whether the criminal acts are sufficiently close in time and space as to "fairly and properly be identified as part of the same criminal enterprise or the one criminal activity … These valiant attempts by judges have been criticised as "glib" … Judges themselves have acknowledged that judicial views in particular cases are not always easy to reconcile … Ultimately, what is presented is a question of fact and degree for the decision in each case (R v Eades (1991) 57 A Crim R 151 at 156). Various indicia are proposed to sustain a single count against the charge of duplicity, notwithstanding that it may permit evidence to be adduced of events which, taken individually, could constitute separate offences. The indicia include: (a) the connection of the events in points of time; (b) the similarity of the acts; (c) the physical proximity of the place where the events happen; and (d) the intention of the accused throughout the conduct … 7. Because of the foregoing, it must be accepted as correct that "the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide … as to whether the common law rule [(against duplicity] has been infringed. (Stanton v Abernathy (1990) 19 NSWLR 656 at 660 per Gleeson CJ) … Clearly, a great deal depends on the nature of the offence. Where the alleged duplicity in the charge is latent it may only be manifested by the way in which evidence is presented to support the charge … It may not be until the prosecution case is concluded that it becomes apparent that the prosecution cannot prove all of the acts that have been rolled together in a single composite charge, making plain the unsuitability of the process reliant on that charge … exceptions to the general rule against duplicity have been allowed where the multiple acts relied on by the prosecution are so close in time and place that they can be viewed as one composite activity; where the offence is one that can be classified as continuing in nature (cf ex parte Graham; re Dowling (1968) 88 WN (Pt 1) (NSW) 270 … However, such cases apart, although the courts in England … and New Zealand … have taken a more lenient view, this Court has, until now, favoured a rule of strictness. The question is whether this Court should now soften that stance. 8. Although some writers have suggested that the law should be changed to prevent a duplicity objection being first taken on appeal …this is not the common law. There are many cases in England and Australia where the accused has been permitted to raise the point for the first time on appeal … 9. A finding that the rule against duplicitous charges has been breached does not oblige the Court, coming to that conclusion, to dismiss the charge. Where the defect is one of patent duplicity the proper course is to put the complainant to an election to remove that embarrassment. (Iannella v French (1968) 119 CLR 84 at 102, applying R v Molloy [1921] 2 KB 364; R v Disney [1933] 2 KB 138). Where the defect is latent and the particulars do not remove it, the Court may direct further particulars; require the complainant to elect and identify the alleged offences; and/or exercise the power to permit an amendment … If the latent defect, once exposed, suggests a risk that the accused might not have a fair trial on the charges as pleaded, the Court should require correction … In his conclusions, Kirby J stated that he could not agree to any reduction in the strict approach to resolving questions of duplicity in the pleading of criminal charges. In reaching this view, his Honour, at p 111, made the following statement: 3. Unless a tight rein is kept upon the prosecution practice of rolling up allegedly connected events and presenting them under a single charge, much prejudice can be done to an accused person by the admission of evidence of a generally inculpatory character which would not be allowed under the similar fact rule of evidence and if the rule of specificity of pleading criminal charges continued to be insisted upon. 65 It is convenient at this point to note that the prosecutor in this case submitted that as there was no clear ratio in Walsh, then the less stringent view, as exemplified in the English decision of Merriman and adopted by the Court of Criminal Appeal in R v Hamzy, applied in New South Wales. This position was considered by the Court of Criminal Appeal in R v Moussad where Smart AJ ( Woods CJ at CL and Bell J concurring) held that that Court should continue to follow Hamzy where the Crown has framed and relied upon a single count alleging a criminal enterprise. 66 Next, it is convenient to consider the process under which prosecutions of an offence under the Occupational Health and Safety Act are commenced in the Commission in Court Session. Under s 168 of the Industrial Relations Act 1996, proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session, such as prosecutions under the Occupational Health and Safety Act 1983, are to be dealt with summarily by the Commission. The Supreme Court (Summary Jurisdiction) Act 1968 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction although sub-section 3 provides that in the Supreme Court (Summary Jurisdiction) Act a reference to the Supreme Court is taken to be a reference to the Commission in Court Session and a reference to the Rules is taken to be a reference to the Rules of the Commission. Part 27A of the Industrial Relation Commission Rules deals with proceedings for offences. Rule 217B deals with prosecutions and provides in sub-rule 1 that proceedings before the Commission in Court Session for an offence (other than contempt) must, unless otherwise provided, be commenced by an application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 as applied to the Commission by s 168 of the Industrial Relations Act 1996. The sub-rule then sets out what must be contained within the application and provision is also made for the Commission to require an affidavit in support of the application. Bearing in mind the discussion in Boral (and especially the views expressed by Hungerford J at 218-219), it should be noted that there is no requirement similar in form to s 57 of the Justices Act requiring every information to be for one offence only and not for two or more offences. Importantly, since the decision in Boral s 49A has been inserted into the Act. 67 Having commenced these proceedings in October and December 2000, on or about 1 March 2001, the prosecutor served on the defendant a document entitled "Prosecutor's Outline of Nature of Cases". The document set out the prosecutor's approach to the charges and the way in which the breaches of the Act were said to arise and to do so sufficiently in advance of the hearing that the defendant would be appraised of the case it had to answer. In that document the prosecutor set out how it contended that each order involved a single criminal activity or enterprise. The document ran to 31 pages and descended into considerable detail and case law. 68 The outline stated that the characterisation of each single criminal activity or enterprise and its respective offence period was as follows: (a) one system of work charged for the continuing offence period of about 26 October 1998 to about 26 October 2000 (IRC 5194 of 2000); (b) the first information, instruction and training charge for the continuing offence period of about 16 December 1998 to 3 May 1999 (IRC 6103 of 2000). The period of this charge ends about 31 May 1999 in light of a document issued by the defendant in or about June 1999; (c) the second information, instruction and training charge for the continuing offence period of about 1 June 1999 to about 13 September 2000 (IRC 6102 of 2000). The prosecutor said that its case was that the defendant's measure of issuing a document entitled "Draft straddle seat and steering wheel adjustment" in or about June 1999 had not been effective in ensuring the health, safety and welfare of the straddle operators and, in any event, other relevant failures and/or omissions of the employer concerning information, instruction and training had continued. To the extent that the defendant claimed the document provided a defence, the breaking up of the information instruction and training charges into these two periods would permit the defendant to pursue that defence; (d) the first plant charge for the continuing offence period of about 16 December 1998 to 29 April 2000 (IRC 6105 of 2000). The period of the charge ended in April 2000 because a new trial seat was introduced by the defendant in or about May 2000; (e) the second plant charge for the continuing offence period of about 1 May 2000 to about 13 September 2000 (IRC 6104 of 2000). The prosecutor's case was that the defendant's measure of a new trial seat had not been effective in ensuring the health, safety and welfare of the straddle operators and, other relevant acts, failures and/or omissions of the defendant concerning plant had continued. To the extent that the defendant claimed the trial seat provided a defence, the breaking up of the plant charges into these two periods would permit the defendant to pursue that defence. (f) the outline for the prosecutor then stated how the then available evidence supported the charges . 69 The prosecutor then submitted in the outline that in the circumstances of the present case it was legitimate to charge in each rolled up charge one activity, even though that activity may involve internally more than one act, failure and/or omission, because of any or all of the following: (a) the prosecutor was entitled to rely upon the admissions allegedly made by employees and/or agents of the defendant and as contained also in the defendant's own document; (b) Section 15 of the Act uses words of general import and considerable breadth; (c) the specific duty described in the six paragraphs of s 15(2) are exemplar of the general duty imposed on employers under s 15(1) and can be so relied upon by the prosecutor, although they are not considered to be exhaustive: put another way, s 15(2) stipulates distinct contraventions of s 15(1); (d) the operation of s 49A of the Act; (e) the importance of the way in which the prosecutor frames and conducts his case; (f) the acts, failures and/or omissions of the objective fact(s) causing a detriment to safety, or both, could fairly and properly be regarded as forming part of the same transaction or the one criminal activity, namely, a continuous stevedoring operation exposing employees to the risk of over use injury; (g) the acts, failures and/or omissions or the objective fact(s) causing the detriment to safety, or both, were connected with one another in the time and place of their commission, namely the continuous stevedoring operation conducted at Port Botany; and, (h) there being no relevant unfairness in terms of any defence nor, if the prosecutor succeeds, any sentence. 70 It was said that, in relation to fairness to the defendant, it was important that the prosecutor had supplied an extensive document outlining its case. This factor had been accepted as a relevant and significant consideration in R v Moussad [1999] NSW CCA 337 (unreported, 27 October 1999) and in R v Hamzy (1994) 74 A Crim R 341. 71 Also of significance and importance was the fact that the defendant aimed to achieve continuous operation of the Port Botany terminal including by the use of straddle cranes. In this operation, it was submitted, there was a risk to the health, safety and welfare of any or all of the defendant's employees driving straddle cranes in that there was a risk of neck, shoulder, spine, upper limb and/or back injury. There was a risk of overuse injuries. The defendant's attention was drawn to reports and documents in its possession and statements made by six employees as to how, over time, the driving of straddle cranes had resulted in various injuries. A pattern emerged from this material and it was not appropriate to take individual acts one by one because that did not reveal the true, overall situation. Again, the judgment in R v Moussad was relied upon for the proposition that courts had found that "enterprise" counts, in drug supply and fraud cases, had been appropriate in order to stress the overall criminality. In drug cases, for example, operators supply relatively small amounts at a time so that, if caught, they cannot be charged with supplying a commercial quantity or a large commercial quantity and in order to bring home the full extent of their criminality and to ensure appropriate punishment, the quantities from a number of acts of supply have to be aggregated. Thus, it was legitimate to conclude that all acts complained of and set out in the particulars of criminal enterprise formed part of the same criminal enterprise and that they were linked by a common purpose. Further, the court said in that case there was no unfairness in having just one count: the appellant knew in detail what case she had to meet and was able to frame and put her defence fully and in detail. The same circumstances, it was submitted, existed in the present case. 72 The prosecutor outlined "illustrative examples" of the evidence in support of relevant failures, acts and/or omissions of the defendant under s 15 or the objective facts causing the detriment to safety or both. In relation to the system of work charge it was said to involve: (a) requiring of any or all of the employees to work for a full shift, apart from one break in the cabin of a straddle; (b) rostering any or all of the employees to work for a full shift, apart from one break in straddles; (c) a failure to provide to any or all of the employees, operating straddles, more than one break per shift; (d) a failure to provide three employees for every two straddles; (e) a failure to rotate regularly throughout their shifts, any or all of the employees when operating straddles; (f) a failure to implement an exercise programme, prior to work commencing on shift, for any or all of the employees operating straddles; (g) a failure to implement an exercise programme, at appropriate intervals, throughout shifts, for any or all of the employees operating straddles. The first information, instruction and training charge (arising between December 1998 and May 1999) involved: (a) a failure to adequately, or at all, provide to operators of straddles, information, instruction and/or training in operating posture; (b) a failure to adequately or at all provide to operators of straddles, information, instruction and/or training in seat adjustments; (c) a failure to adequately or at all provide to operators of straddles, information, instruction and/or training in steering wheel adjustment; (d) a failure to adequately or at all provide to all operators of straddles information, instruction and/or training in stretch exercises. The second information, instruction and training charge (arising between June 1999 and September 2000) involved: (a) all the matters referred to set out in the first information, instruction and training charge involved. The first plant charge (arising between December 1998 and April 2000) involved: (a) a failure to provide seating in the cabin that ensured health and safety; (b) a failure to provide access to the radio in the cabin that ensured health and safety; (c) a failure to provide access to the computer terminal in the cabin that ensured health and safety; (d) a failure to provide mirrors to reduce the degree and frequency of neck and frequency of neck rotation and flexion requirements; (e) providing straddles with a fixed cabin. The second plant charge (arising between May and September 2000) involved: (a) the matters referred to in the first plant charge but in relation to a different time frame. 73 It is convenient at this point to return to the judgment of Wright J, President in relation to the 2001 Notice of Motion pursued by the defendant and referred to earlier in this judgment [(2001) 103 IR 417]. His Honour noted that one Notice of Motion sought an order staying the five proceedings on the following four grounds: (a) that the orders in respect of each matter are duplicitous; (b) that the particulars of the charges in respect of each matter are duplicitous; (c) that the prosecutor has laid multiple charges in respect of one alleged offence; (d) that the particulars of the charge in respect of each matter do not disclose an offence. 74 His Honour then set out the charge and particulars in relation to IRC 5194 of 2000 and concluded that, although the application was framed by reference expressly to s 15(1) of the Act, the particular allegation was that the defendant failed to provide or maintain a system of work that was safe and without risk to health, and to that extent had been drafted with regard to the terms of s 15(2)(a) of the Act. Matter IRC 6102 of 2000 alleged a failure to ensure the health, safety and welfare at work of the same employees but the allegation was one of failure to provide such information, instruction and training as may be necessary to ensure the health and safety at work of employees between June 1999 and September 2000. The further particulars were not dissimilar to those in the first matter and it was observed that the allegation had been framed having regard to s 15(2)(c) of the Act. Matter No IRC 6103 of 2000 related to the same employees and also appeared to be framed with regard to s 15(2)(c) of the Act. However, the period of charge was 16 December 1988 to about 31 May 1999. The second and third matters, in effect, referred to consecutive time periods. His Honour said that a similar situation as to consecutive time periods occurred in the fourth and fifth matters (IRC 6104 of 2000 and IRC 6105 of 2000). The first matter related to the period 1 May 2000 and about 13 September 2000, and the second to the period 16 December 1998 and about 29 April 2000. Each alleged a failure to provide or maintain plant that was safe and without risk to health and appeared to have been framed with regard to s 15(2)(b)(i) of the Act. 75 Wright J, President then summarised the defendant's case as follows: 16. In essence, the defendant submits that the proceedings should be stayed because the relevant process discloses no cause of action; the particulars are too vague and imprecise and offend against the principles enunciated in John L Pty Ltd v Attorney-General (1987) 164 CLR 508. As elaborated, the last submission relies on the important judgment of Hill J in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363 particularly at 379-380. It was also submitted that the facts and circumstances pleaded in each application are almost identical, and the defendant is exposed to double jeopardy by having to face five prosecutions. 17. Senior counsel helpfully provided a detailed analysis of the way in which the offences had been set out and particularised, and by means of tables and similar analyses pointed to and elaborated the matters referred to above in the earlier summary. Reference was made to the fact that the various orders and applications for orders were entirely or almost entirely identical; for example, identical (with one exception) as to the employees involved, the equipment used, the work done and the symptoms complained about. It is said, for example, that if the failure alleged in matter No IRC 2000/5194 caused the same problems as the failure alleged in matter Nos IRC 2000/6102, 6103, 6104 and 6105, why is there more than one charge; if the prosecutor was serious, why did he not allege which of the various systems was referrable to each of the alleged collective failures in each case; it is submitted that the defendant, as things stand, is exposed to double jeopardy. 18. Counsel candidly indicated that the double jeopardy aspect of the submissions, although an important consideration, was nevertheless secondary to the fundamental attack on the validity of the process. Particular reference was made to the fact that there was nowhere alleged that there was a risk to health from any relevant cause (Particular 4); any of the employees suffered any injury (Particulars 6-9); that the "symptoms" were the product of any injuries (Particulars 6-9) or caused by driving straddles (Particulars 5-11). In summary, it was submitted that it was offensive to the criminal process to plead particulars in the alternative by using expressions such as "failures and/or omissions" and "any/or all of the following" and "requiring any/or all of the following" and "requiring any/all of the employees" and "a failure to adequately or at all provide, etc". 76 In dealing with these arguments, his Honour then stated: 29. For the purposes of analysis only, and not with any intention of criticism, the documents filed could have perhaps been framed in a somewhat different way which may have led to less difficulty in their construction. I interpolate here that in terms of the requirements, as summarised by Mahoney JA in Boral Gas Pty Ltd v Magill (1993) 32 NSWLR 501, 515, as to time, place and manner, there is no real issue as to the first and second of those matters. The essential issues between the parties here relate to the "manner". His Honour analysed the summons in IRC 2000/5194 and then stated: 32. It is to be appreciated that, by having to "navigate" one's way through the process in this manner, the interconnection of the various elements of the manner of the occurrence of the alleged offence is not without some difficulty. Nevertheless, I conclude that, approached in the way which I have attempted to outline, is cannot be said that there has been, in the way considered by Hill J in Boral Gas, a relevant failure to state the essential elements in law of the offences charged; that there was a failure to state appropriately "the manner of its occurrence and such other details as are necessary to allow the defendant to know that which he must meet": per Mahoney JA in Boral Gas (at 515). Any failure to allege actual injury is not relevant. Injury is not an essential element of an offence under s 15 of the statute. 77 His Honour then went on to deal with the issue of alleged double jeopardy, stating: 36. The question of double jeopardy is another matter of concern. The principle is clear, and in that regard senior counsel for the defendant referred to the well-known judgment of the High Court in Davern v Messel (1984) 155 CLR 21. 37. It may also be pertinent to observe that the important principles laid down as to sentencing raised by issues of double jeopardy in the judgment of the High Court in Pearce v The Queen often present particular difficulties in sentencing under the Occupational Health and Safety Act. Nevertheless, once the five charges are seen in the context of the particular way in which they are framed, the way in which reliance has been placed on the different paragraphs of s 15(2) of the Statute and the different time periods in the two pairs of charges, it cannot be said that the charges as presently framed demonstrate double jeopardy or deal with the charges in a way that is unfair or, if it be thought that s 49A permits double jeopardy in some conceptual way at least, in a way that is not permitted by that section. 78 His Honour concluded that he did not accept that on the material before him, it should be held that the prosecutor had laid charges in any of the matters in respect of more than one alleged offence or that any of the matters may be said to fail to disclose an offence. His Honour made clear that he had dealt with the matter on an interlocutory basis and was not in any way dealing with the issue whether there was a continuing offence of the kind alleged. In his Honour's view, that was a matter which inevitably would have to be a matter for the trial judge. 79 As Wright J, President indicated he had dealt with the defendant's Notice of Motion on an analysis of the pleadings in each charge and in the light of what the prosecutor said was the nature of its case but before fully hearing the prosecutor's evidence. I have now heard the prosecutor's evidence. In my view it adheres to the outline provided to the defendant prior to the hearing of the Notice of Motion in 2001 and the hearing of the alleged breaches in 2002. No basis has been established which would lead me to depart from the conclusions reached by Wright J, President on the issue of duplicity. In various ways, the prosecutor has been able to establish the time, place and manner of each offence. Further, I am of the view that the manner in which the prosecutor has pleaded the five separate charges is permitted by s 49A of the Act. While it can be acknowledged that the judgment in Boral held that each particular mentioned in s 15(2) constituted a separate offence, s 49A permits a number of section 15 offences to be contained within the one summons where they arise out of the same factual circumstances. In the present proceedings, although there are five summonses, they may be categorised as falling into: (a) a system of work charge; (b) an information, instruction and training charge in two distinct periods; and (c) a plant charge falling into two distinct periods. The system of work charge is essentially about the failure to provide more than one break per shift and the failure to implement appropriate exercise programmes. The information, instruction and training charges are essentially about the failure to instruct and train in relation to seat adjustments, steering wheel adjustments and stretch exercises. The plant charges are essentially about access to a radio, a computer terminal, the failure to provide mirrors and the failure to provide a fixed cabin. In this way, the prosecutor has arranged the alleged breaches under notional categories or headings in a way that is permitted by s 49A of the Act: the breaches can be charged as a single offence or as separate offences. Viewed in this way, the approach of the prosecutor appears to address at least one concern of the defendant namely, that, in accordance with the approach in Boral, each aspect of s 15(2) is a separate offence and it has been charged separately. 80 Regard must also be had to what was said by Kirby J in Walsh v Tattersall, namely, that the court, when considering a challenge alleging duplicity in criminal pleadings, must consider whether pleading rules permit the collection of several offences known to law under one count or charge, or require they may be separately expressed in individual counts or charges. I have earlier noted the provisions of s 168 of the Industrial Relations Act and Part 27A of the Industrial Relations Commission Rules including Rule 217B. There is nothing in these provisions which requires separate charges; s 49A of the Act makes a specific provision to the contrary. Having regard to the Minister's Second Reading Speech, full force and effect should be given to s 49A. As long ago as the decision in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467, the Commission has been prepared to consider the Occupational Health and Safety Act as being remedial or beneficial legislation which is to be interpreted liberally so as to maximise the scope of the Act. In that early judgment on what was then new legislation, where quite fundamental and seminal rulings were made on the operation of the Act (which are still cited in judgments of the Court). Watson J, without demur, recorded the prosecution's reliance on the remedial or beneficial approach and two cases cited in support of it: As was said in Rice v Henley (1914) 19 CLR 19 at 22: In interpreting an Act which is directed to guarding against accidents and the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit. (per Isaacs J). See also Butler v Fife Coal Co [1912] AC 149 esp. at 178, 179 when Lord Shaw, at 468, stated the approach as: The commanding principle in the construction of a Statute passed to remedy the evils and protection against the dangers which confront or threaten persons or classes of His Majesty's subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure. This principle is sound and undeniable. 81 It is clear from the discussion in Walsh v Tattersall and the joint judgment of Gaudron and McHugh JJ in S v The Queen (1989) 168 CLR 266, that the underlying basis for the rule against duplicity is that the defendant must know the case which he or she is to meet. The objection is one of form. Not only do the pleading rules permit the charges as framed by the prosecutor in this case but it is established that, by presenting the defendant with a detailed outline of the manner in which the prosecution put its case, that underlying principle has been met. I accept the prosecutor's submission in this regard and the importance which the courts have placed on the use of such a document in meeting this underlying principle ( R v Moussad; R v Hamzy). 82 As already explained, the five charges cover periods of time in which essentially three alleged categories of breach occurred: a system of work breach, two instruction and training breaches and two plant breaches. The essence of the defendant's complaint is that the alleged breaches pleaded in such a way caused "maximum difficulty to the defence" - there are countless charges and the defendant does not know what they are; does not know when they were committed and does not know in what circumstances they were committed. Because a continuing offence is pleaded, there is an offence on every day of the chosen period. There was no analysis or detail of how the defendant was placed in the position of "maximum difficulty" - there was no rebuttal attempted of the asserted utility of the prosecutor's Outline of Case which was provided to the defendant well before the hearing. In many respects the defendant's case was hypothetical as there was no elaboration of the practical difficulties facing the defendant in coming to know what case was made against it. This is surprising as the defendant's submissions were made after the prosecution had closed its case. It was then open to the defendant to pinpoint the manner in which the charges as pleaded left it in a position of such prejudice. 83 I have difficulty therefore in understanding the problems said to be faced by the defendant. In particular, the evidence showed: (a) that there was a continuous operation of the Port Botany facility sought by the defendant, especially through new enterprise bargaining arrangements involving the use of straddle cranes; (b) that there were time books and rosters for the charge periods showing when nominated employees were working on straddle cranes, the composition of the gangs and the rest periods rostered; (c) that there were documents identifying straddle drivers who complained of injury or illness during the charge periods and recorded the nature of their complaints; (d) that the defendant had received certain advice, including specialist or expert advice about risks to the drivers arising from the use of the straddle cranes from at least January 1998; (e) there were training sessions conducted by the defendant for straddle drivers; (f) that there was an emergence of a pattern of repetition injuries amongst straddle drivers showing an onset of symptoms over time; (g) that there was consideration given to both short and long term effects on straddle drivers in having to operate the cranes. Without attempting to be exhaustive in summarising the evidence, these matters tend to demonstrate that the difficulties complained of by the defendant are not able to be made out. Further, in this connection it is to be remembered that Wright J, President had found that the elements of time and place of each offence were not a problem and that only the manner in which the offences were said to be committed was in issue. That issue was resolved by Wright , J President on the 2001 Notice of Motion. In terms, that ruling was not (if it could be) contested before me. 84 The remaining issue is whether or not s 15 of the Act is capable of supporting a charge framed as a continuing offence. As demonstrated in Walsh v Tattersall, this question is primarily a matter of statutory construction. The High Court pointed out that the relevant legislation in Walsh v Tattersall contemplated a completed offence at the point that a periodic payment was made following a false claim - it was impermissible, in the one charge, to allege numerous payments obtained by fraud. 85 As earlier recorded, the defendant submitted that s 15 only recognised individual offences committed on defined dates and in defined circumstances. I am unable to accept that submission on any analysis of the terms of s 15. 86 It was the defendant's submission that s 15 created an offence which was complete once an action in breach of the section had taken place and therefore did not cover a continuing offence where the conduct remained in breach until action was taken to remedy or overcome that breach. It was not suggested that this construction arose from a consideration of the history of s 15 nor was it argued that such an approach arose from a consideration of s 15 in the context of other provisions of the Act (as, for example, was the case in Walsh v Tattersall). The defendant's submissions therefore turn solely on the terms of s 15 and the nature of the breach as particularised by the prosecutor. 87 It is therefore appropriate to set out the terms of s 15 of the Act. 15. Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section . 88 There is force in the prosecutor's submission that the provisions of s 15 are framed in terms which are broad and general in their operation. They are designed to cover all manner of workplace operations in imposing the duty on every employer to ensure the health, safety and welfare at work of all the employer's employees. Having regard to the intended field of operation of s 15, it is not surprising that it is cast in such wide terms. Section 15 does not use specific terms or words of singularity as found in Walsh v Tattersalls. That case emphasised the different treatment of sections using words of general import and considerable breadth - a fitting description for the terms of s 15 of the Act. The importance of this categorisation is, as recognised by Kirby J in Walsh: clearly a great deal depends upon the nature of the offence. 89 Bearing in mind also the general objectives of this legislation (see the discussion in paragraph [80], I can detect no legislative intention that s 15 excludes a continuous offence by operating only in relation to a breach which is completed once the prohibited conduct is undertaken by an employer or is confined to daily breaches. The defendant's approach (as shown in earlier submissions including submissions before Wright J, President on its earlier Notice of Motion) demonstrates a misconception that there needs to be an incident or workplace accident before there can be a relevant breach of s 15 of the Act. It has been accepted, at least since the Full Court gave judgment in Haynes v CI&D Manufacturing Pty Ltd and anor (1995) 60 IR 149, that it was an error to focus solely on workplace accidents in considering whether or not there had been a breach of the Act; although a prosecution frequently is commenced because of an investigation arising out of such an incident, the occurrence of a workplace accident is primarily evidence of the risk or risks to employees at the workplace. 90 What then may be identified as the hallmark of a continuing offence? In Burgess v Kaputar Timbers Pty Ltd (1999) 91 IR 378, a Full Court, dealing with two summonses issued on informations concerning non-payment of annual leave, was called on to consider whether the alleged offences could be properly categorised as continuing offences and allowable under the provisions of the Annual Holidays Act. In dealing with this issue, the Full Court took particular note of the long standing judgment of McKeon J in Bridge v Lindrum [1957] AR NSW 356). In the course of that judgment, McKeon J (359-360) referred to Slogget v Adams (1953) 70 WN 206 including the following passage from the judgment of Street CJ (at p 208): The question whether the offence which has been committed is a continuing offence, or one which was committed once and for all at a specified time, depends upon consideration of the language of the Act in question. Some offences once committed are complete and concluded and exist only in the past. Other offences, however, are continuing offences and are committed day by day so long as the state of affairs which is forbidden continues to exist, and the person responsible for creating that state of affairs is liable day by day for those offences. The test, it seems to me, is one which was prescribed in Ellis v Ellis (1896) P251, at 254, by Sir Francis Jeune, who said: The test whether an offence is to be treated in law as continuous, is, I think, whether its gravamen is to be found in something which the offender can, at will, discontinue … 91 Applying this approach to s 15 of the Act it seems to me, paraphrasing the approach of McKeon J in Bridge v Lindrum, that the clear purpose of the Occupational Health and Safety Act is to secure the health, safety and welfare of persons at work. The obligation imposed by s 15 requires an employer to ensure the health, safety and welfare at work of all that employer's employees. The gravamen of an offence against s 15 is the failure to comply with that obligation. That obligation is only fulfilled by ensuring the health, safety and welfare of the employee. The gravamen of the offence is failure to give effect to that obligation, not failure to give it within a specified time. The obligation, once it has arisen and once it has been breached, continues from day to day until it is discontinued by the discharge of the obligation. 92 The above analysis does not preclude a charge being framed under s 15 of the Act which may result in a breach of the obligation being completed at a particular time, for example, where the installation of a guard, emergency stop button or other device is quickly installed following an incident thereby rectifying the risk to safety which arose under a previous system of operation. At the same time, I can well understand how a risk to safety may continue for a considerable time and may not be addressed by the employer. On one view, it may well be inappropriate and an abuse of process to charge each day as a separate offence, or each working period as a separate offence during the time the exposure to risk existed. The length of time a risk to safety exists may also be relevant on the question of penalty. 93 The issue is not dissimilar to that dealt with by the Court of Criminal Appeal in CSR Ltd v Environment Protection Authority (2000) LGERA 334. In that case, the Environment Protection Authority had charged that the company had committed an offence against s 6(1) of the Environmental Offences and Penalties Act 1989 in that it had, without lawful authority, negligently caused a substance to leak in a manner which harmed the environment. The defendant company raised an issue of duplicity alleging that the summons charged two offences. It was the company's submission that the language of s 6(1) compelled the conclusion that the prohibited conduct was that of negligence causing a substance to leak in a particular manner, one being that which harms the environment and the other that which is likely to harm the environment, and that separate offences were thereby created: consequently, there were two different limitation periods and the summons had rolled up both aspects. Smart AJ, (with whom Spigelman CJ and Hulme J agreed) dealt with that issue, at pp 340 - 342, as follows: 33. I agree with the judge that there was one offence and that it penalised one act (negligently causing a substance to leak) which possesses one or both of two forbidden characteristics. I follow this statement of principle by Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552: 34. The time distinction broadly speaking … is between a statute which penalises one or more acts in which case two or more offences are created and a statute which penalises one act if it possesses one or more forbidden characteristic. In the latter case there is only one offence whether the Act under consideration in fact possesses one or several such characteristics. Of course, there will always be borderline cases … 35. In Bowling v General Motors-Holden Pty Ltd (1975) 8 ALR 197 at 218 Woodward said: Provided only a single act is charged, alternative or cumulative allegations as to the circumstances making it unlawful will not render it bad for uncertainty or duplicity. 36. There is a close connection between the concepts of a leak harming the environment and a leak likely to harm the environment. Frequently, the leak of the polluting substance will do both. Initially, on the leak occurring it will be likely to harm the environment and then it will do so, albeit that there is a time delay. In some cases it will be difficult to determine whether the leak of the polluting substance has reached the second stage causing harm. … 40. CSR submitted that the Judge erred in refusing to decide that the offence charged, as it was particularised, could not be a continuing event. This was because the offence as particularised could not be constituted by continuous activity and does not involve disobedience to a statutory obligation to do some act. … 43. The EPA would face considerable difficulties in pin-pointing when effluent was placed in the Blue Lagoon or establishing individual leaks. They would be hard to see or detect. With earth lagoons, leaks tend to be gradual as the effluent works its way through the earth or soil in sufficient quantities to harm or be likely to harm the environment. This is a continuing and often slow process. The EPA has taken the practical course of formulating its case relying upon statements in CSR documents as to leaking of effluent occurring from 1992 and the failure of CSR to stop such leaks. 44. In Hodgetts v Chiltern District Council (1983) 2 AC 120 at 128 Lord Roskill, with whom the other members of the House agreed, said: 'It is not an essential characteristic of a criminal offence of any prohibited act or omission, in order to constitute a single offence, should take place once and for all in a single day. It may take place whether continuously or intermittently over a period of time.' 45. In Walsh v Tattersall (1996) 188 CLR 77 at 91 Gaudron and Gummow JJ indicated that an offence could be defined in terms of a course of conduct or state of affairs. Kirby J (at 107) recognised that conduct which need not cover but in some circumstances might, be constituted by activity over time could be charged in a single count. 46. The EPA pointed out that conduct which literally continues without a break, such as failing to pay wages (R v Industrial Appeals Court; ex parte Barelli's Bakeries Pty Ltd (1965) VR 615) and conduct as a result which continues over a period of time, for example, failing to submit a report to the liquidator (Ganke v Corporate Affairs Commission (1990) 19 NSWLR 449) may constitute a continuing offence. … 51. The EPA's case was that CSR engaged in a course of continuing conduct both by way of negligent act (continuing to pump or place effluent in the lagoon) and negligent omission (failing to take any steps to rectify or rectify adequately what was apparent to it, ie the lagoon was leaking). The EPA cannot say whether the leaking occurred as frequent episodes or as an interrupted flow. 52. Having regard to the subject matter and language of s 6 (1) offences under that provision can be continuing offences. The provision applies to a wide variety of circumstances. In some instances the leaks can be expected to be prolonged and slow. The permeability of ground may, for example, be poor. Further, the alleged offence as particularised is capable of being a continuing offence. 94 Having accepted that s 15 does not preclude the charging of a continuing offence, attention is then directed to the charges as particularised by the prosecutor. The first charge, apparently arising under s 15(2)(a), related to a two year period from October 1998 to October 2000. Broadly, it may be described as a "system of work" charge. The two "information, instruction and training" charges, as has been indicated earlier, cover different periods and are said to be brought under s 15(2)(c). These charges particularise the failure to provide the operators with information, instruction or training in seat adjustment, steering wheel adjustment and stretch exercises. The two "plant" charges also cover different time periods and allege a failure to provide seating that ensured health and safety, a failure to provide access to a radio in the cabin, a failure to provide access to the computer terminal, a failure to provide mirrors to reduce the degree and frequency of neck rotation and flexion and the failure to provide straddles with a fixed cabin. From the time the prosecution provided the defendant with its outline, it was clear that the prosecution was alleging a continuing offence in these various charges. I am unable to find anything in these charges which preclude them, as particularised, from being considered on the basis of alleging a continuing offence during the periods specified in each charge. 95 It appears from the judgments in Walsh that a continuing offence is but one of a number of exceptions to the rule against duplicity and stands alone as an exception. An alternative way of looking at the charges is to see if there is: a connection of events in points of time; a similarity in the acts; a physical proximity of the place where the events happened; and, the intention of the accused throughout the conduct. I have accepted the prosecution's submission that a breach of s 15 may be pleaded as a continuing offence. In addition, I also accept, quite apart from being a continuous offence, that charges in this matter are supportable as being sufficiently connected in time, proximity and similarity to permit a single charge based on conduct over a period of time. The cases suggest that a course of conduct, an activity or a state of affairs, taking place continuously or intermittently over a period of time may be charged as a single offence. 96 In this case the offences charged all revolve around the same equipment at the same workplace conducted by the same employer under the same operating arrangements. The respective injuries alleged, by their nature would be likely to develop over time. It would be difficult for the prosecutor to specify when they began and when they reached their most serious stage. The defendant's alleged failure to address risks shown to exist in specialist reports raises the overall seriousness of its conduct over time. This analysis applies to what the defendant describes as multiple breaches and multiple offences within each separate charge. It is also to be borne in mind that the prosecutor's outline of case drew the defendant's attention to the fact that it was alleged that the relevant failures and omissions causing detriment to safety were connected with one another in time and place of commission. The defendant could not be surprised at this approach and was thus informed, well in advance of the hearing, of the case which it had to meet. 97 For the above reasons I am unable to accept the defendant's "no case" submissions regarding the pleading of continuous offences under s 15 of the Act. DOUBLE JEOPARDY 98 The defendant submitted that, even if the charges were not duplicitous, the proceedings exposed the defendant to double jeopardy because the charges, when properly analysed, were in fact all in respect of the same circumstances. The offences were said to be for one and the same cause. Alternatively, it was submitted that the bringing of five charges was, in the circumstances, an abuse of process. In oral submissions senior counsel for the defendant said that the submissions on duplicity were closely allied to the abuse of process submissions relied upon by the defendant. 99 In the five cases, the defendant pointed to the fact that the following matters were "entirely identical in each case", namely: (a) the employees involved; (b) the equipment used; (c) the work done; (d) the "symptoms complained about"; (e) the risk to health and safety complained about. The evidence was analysed to demonstrate that in five straddle crane drivers the "symptoms" were neck pain; neck and shoulder with lower back pain; neck and right arm pain developing; significant increase and severity and consistency of neck and back pain; and symptoms of neck and back pain. Further, it was submitted that each employee complained in each case of precisely the same symptoms, that is, the risk alleged in each offence and the result of each alleged offence is identical with each of the others. The particulars in Matter IRC 6104/2000 were practically the same as the particulars in Matter IRC 6105/2000. The particulars in Matter IRC 6102/2000 were practically the same as the particulars in Matter IRC 6103/2000. The defendant had been charged with five offences under s 15 of the Act - it being alleged in all the offences that it did not ensure the health, safety and welfare of its employees. On examination, the substance of the allegations against the defendant involved the same employees, the same equipment, the same work, the same symptoms and risk: the defendant had therefore been charged in substance with the same offence five times. The defendant was being vexed five times for one and the same cause. This situation was said to bring into play the principles referred to by the High Court in Pearce v R (1998) 194 CLR 410. In particular the High Court confirmed the inherent power of a court to prevent abuse of its process and that power existed even where, strictly, the principle of double jeopardy did not operate 100 The defendant accepted that, although the court in Pearce recognised that the decision about the charges to be laid and prosecuted was a matter for the prosecution, the court referred to the important proposition that prosecuting authorities should not multiply charges unnecessarily (at p 691). In the circumstances before the High Court it was found that to bring the charges against the appellant was not an abuse as the charges were different in important respects and thus could not be vexatious or oppressive. In the present case, the bringing of the five charges against the defendant was vexatious and oppressive. It was oppressive insofar as the defendant had been charged five times but for the same conduct and it was oppressive in the way the defendant had been charged. 101 The defendant relied upon the judgment of Lord Green in Speed v Thomas Swift & Co [1943] 1 KB 557 at 563-564: "a system of working may consist of a number of elements and what exactly it must include, will, it seems to me, depend entirely on the facts of the particular case …a system includes physical layout of the job, the setting of the stage … sequence of work to be carried out, the provision of warnings and notices and the issue of special instructions …". The defendant submitted that a safe system of work encompassed the provision of plant, training and instruction. The charge that a safe system of work was not provided covers the same conduct and criminality alleged in the "plant" offences and the "training" offences against the defendant. The considerable overlap between the charges was reflected in the common particulars. The prosecutor could have charged an offence of lack of safe system and included a representative number of particulars to reflect the overall criminality. 102 Next, it was submitted that the Full Court of the Victorian Supreme Court in Byrne v Baker [1964] VR 443 had emphasised the "important principle" that crime should be so defined to enable the accused to know with precision with what he is charged (at 453). This approach had been applied by the Full Court of the Western Australian Supreme Court in Meiklejohn v Central Norseman (1998) 19 WAR 298 in relation to Occupational Health and Safety legislation. In Meiklejohn, the court commented that each charge under the legislation must relate to an identifiable act or omission that is productive of unreasonable exposure to a hazard or hazards. The court had condemned a charge against an employer that led to an employer facing a host of unconnected particulars ranging over an extensive period, stating, at p 321: The particulars may allege acts quite disparate, some of trivial nature and others perhaps very serious. It would be the case that proof of any one or more of them would, presumably, result in conviction. This conception of how offences are to be defined and charges laid was emphatically condemned in Byrne v Baker It was submitted that the court in Byrne v Baker had found that the way the accused had been charged involved unfairness and injustice, that the whole proceedings were oppressive and involved a denial of natural justice. The circumstances here, of multiple charges, were also an abuse of process. If the case remained on foot the prosecutor should be directed, at least, to elect on which of the charges he is to proceed. 103 At this point, it is again necessary to be reminded of the judgment of Wright J, President in the March 2001 decision concerning a defendant's Notice of Motion (2001) 103 IR 417). In that case, his Honour noted that the February motion sought an order staying five proceedings including the following: … (c) that the prosecutor has laid multiple charges in respect of one alleged offence; (d) that the particulars of the charge in respect of each matter do not disclose an offence. His Honour the President, (as earlier noted) dealt with these matters in the following way: 36. The question of double jeopardy is another matter of concern. The principle is clear, and in that regard senior counsel for the defendant referred to the well-known judgment of the High Court in Davern v Messell (1984) 155 CLR 21. 37. It may also be pertinent to observe that the important principles laid down as to sentencing raised by issues of double jeopardy in the judgment of the High Court in Pearce v The Queen often present particular difficulties in sentencing under the Occupational Health and Safety Act. Nevertheless, once the five charges are seen in the context of a particular way in which they are framed, the way in which reliance has been placed on the different paragraphs of s 15(2) of the Statute, and the different time periods in the two pairs of charges, it cannot be said that the charges as presently framed demonstrate double jeopardy or deal with the charges in a way that is unfair or, if it be thought that s 49A permits double jeopardy in some conceptual way at least, in a way that is not permitted by that section. An appeal against his Honour's judgment on the motion was filed, and after it had initially been listed was withdrawn by the defendant. 104 Before dealing with the consequences of the defendant's conduct of the proceedings in relation to the issue of "double jeopardy" and "abuse of process", it is appropriate to briefly consider what the High Court was dealing with in Pearce v R (1998) 194 CLR 610. In that case, an indictment preferred charges under two sections of the Crimes Act, both having as an element the inflicting of grievous bodily harm. The charges arose out of a single incident and when the accused pleaded guilty to several counts including the charges specifying the element of grievous bodily harm he was sentenced to the identical period of penal servitude on both those counts to be served concurrently, but cumulative upon a sentence for another offence under a separate indictment. The High Court held that a plea in bar was not available where the subsequent offence contains elements not included in the first offence. The Court also held that the prosecution of multiple charges where charges contained different elements, and one charge is not wholly included in another, did not constitute an abuse of process. It is significant that in Pearce the appellant argued that at common law a person may not be convicted of two different offences in respect of the same or substantially the same set of facts. It is clear that the court rejected that argument and accepted the respondent's submission that the rule against double jeopardy prevented a person being twice put in jeopardy for the same offence rather than in respect of the same facts. Thus, the majority joint judgment ( McHugh, Hayne and Callinan JJ) concluded: 28. Inevitably, any test of the availability of the pleas in bar which considers the evidence to be given on the trial of the second prosecution except in aid of an inquiry about identity of elements of the offences charged would bring with it uncertainties of the kind identified by Scalia J. The stream of authorities in this country runs against adopting such a test (see also R v Brightwell [1995] 2 NNZLR 435) and there is no reason to depart from the use of the test which looks to the elements of the offences concerned. Each of the offences with which the appellant was charged required proof of a fact which the other did not. It follows that no plea in bar could be upheld. 105 The joint judgment in Pearce also noted (at paragraph 7) that the elements of the offences charged against the appellant in the case overlapped but they were not identical. Having identified a single rationale for the rule, as described by Black J in Green v United States (1957) 355 US 184 at 187-188, namely, that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, the court noted that there were other forces at work, and three in particular were identified, as follows: 11. First, as the range of crimes and punishment for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach. 12. Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged. 13. Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against the accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct. 106 The court also acknowledged that a defendant was not confined to the plea in bar and that there may be cases in which the repeated prosecution of the offender may also raise the inherent powers of a court to prevent abuse of its process. In Pearce, the joint judgment accepted that there was no abuse of process because the offences were different and different in important respects. It was noted that to hold otherwise would be to preclude the laying of charges that together reflect the whole criminality of the accused. 107 In his separate judgment, Gummow J rejected the submissions for the appellant which assumed that in Australia "double jeopardy" was an independent doctrine of avoidance which of itself would found a stay application. His Honour stated: That is not the position. Somewhat like notions of unjust enrichments, double jeopardy is a "concept" rather than "a definite legal principle according to its own terms". (United States v Dixon (1993) 509 US 688 at 696-704 at [66]). 108 There are other important judgments which reflect this approach. The Court of Criminal Appeal (Gleeson CJ, Carruthers and Smart JJ) in Environmental Protection Authority v Australian Iron and Steel Pty Ltd (1992) 28 NSWLR 502 considered offences under cognate legislation in dealing with a complaint of double jeopardy. The court, having regard to the substance of the relevant offences, the history of the relevant legislation and the particular facts, concluded that the charges were for substantially the same offence. The judgment of the court was delivered by Gleeson CJ (the other members of the court concurring). His Honour, dealing with the nature of "double jeopardy" stated at pp 507 - 508: As was pointed out in (R v Dodd (1991) 56 A Crim R 451, it is one thing to say that a person may not be put in jeopardy twice for the same offence; it is another thing to say that a person may not be put in jeopardy twice for the same conduct. The precise meaning of the last-mentioned proposition itself requires elucidation. Where an Act of Parliament makes a certain type of conduct an offence, and imposes a penalty, the offence will usually be characterised in terms of a certain quality or attitude that may well be attached to primary facts. Different statutes may fasten upon different qualities or attributes of the same set of primary facts to create separate offences. To assert that a person may not be convicted of multiple offences for the same facts invites a request for a more precise definition of the relevant facts … . Where two or more different statutory prohibitions apply to the same set of primary facts, this will often be because each prohibition fastens upon some different aspect of those facts and makes it the gist or gravemen of the offence. It may be that one particular feature of the fact is immaterial for the purpose of one prohibition and material for another. It is commonplace that, by reason of the nature of the regulatory schemes that are established by certain types of legislative provisions or administrative action, there are some kinds of conduct which also inevitably involve participants in multiple breaches of the law. For example, the scheme of the customs legislation and regulations is such that a transaction or dealing designed to evade customs duty is highly likely to expose the offender to multiple penalties: cf Scott v Geoghegan & Sons Pty Ltd (1969) 43 ALJR 243. This will be because various steps in the transaction are likely to contravene various prohibitions. That is not ordinarily regarded as involving double jeopardy in the technical sense. Again, it is settled that persons who enter into and carry out a conspiracy may be charged both with the crime of conspiracy and the substantive offences arising out of overt acts: R v Weaver (1931) 45 CLR 321 at 334; R v Challita (1988) 37 A Crim R 175. 109 Having regard to the purpose of the Occupational Health and Safety Act and the wide terms of s 15, I am satisfied that a variety of activities or omissions indicated by s 15(2) demonstrates that different qualities or attributes have been chosen to be penalised by the Act. The charges are different in important respects and elements even if they overlap. These differences have been earlier analysed and cannot be described as unnecessarily multiplying charges. Further, the defendant's reliance on the judgment in Meiklejohn is of little assistance: the judgment itself recognises the important differences between Western Australian and New South Wales occupational health and safety legislation. It was primarily these differences which resulted in the Full Court, in Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois ) (2000) 99 IR 16, rejecting the utility of the judgment in Meiklejohn in the context of a consideration of s 16 of the New South Wales Act. It follows that I am unable to agree with the defendant's submissions regarding "double jeopardy" in relation to these five charges. 110 In one sense the defendant's submissions in the present case concentrated on the evidence as demonstrating the existence of double jeopardy. The submission ignores the rejection of such an approach in Pearce and also appears to be made without recognition of the defendant's own submission that in Boral the Full Court had found that the specific matters mentioned in s 15(2) of the Act each constitute a separate offence. Section 49A then permits more than one contravention of s 15 to be pleaded as one offence or as separate offences. Wright J, President in March 2001, dealing with the defendant's Notice of Motion, was able to identify the various parts of s 15(2) which appeared to be relied upon by the prosecutor in the framing of each of the five charges. That analysis led his Honour to hold that there was no double jeopardy. 111 For myself, I would not depart from the analysis of Wright J, President in identifying the different elements of s 15(2) which have been relied upon by the prosecutor together with the different time periods for the five charges. In my view, there is neither double jeopardy nor an abuse of process in the manner in which the charges have been framed. I am, however, also of the view that this particular challenge by the defendant has already been argued and dealt with to finality by Wright J, President. I do not believe it is open to the defendant to pursue that argument once more, not only because the argument has been heard and rejected but also because the defendant has appealed against that ruling and then withdrew the appeal. ORDERS 112 In light of the findings and conclusions I have reached, the following orders are made: 1. The defendant's "no case" application is dismissed. 2. The parties are to confer in relation to the costs arising from the hearing of the defendant's "no case" submission with a view to having the matter listed within 14 days for mention, directions or orders, as may be advised. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.