Industrial Relations Commission New South Wales Medium Neutral Citation: The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14 Hearing dates: 14 February 2011 Decision date: 03 March 2011 Jurisdiction: Industrial Court of NSW Before: Boland P, Walton VP, Staff J Decision: 1. In the event that leave to appeal is required, leave is granted. 2. The appeal is upheld to the extent determined in this decision. 3. The matter of sentence is referred back to Chief Industrial Magistrate Hart for the purpose of re-sentencing in the light of this decision. 4. The appellant shall have 14 days from the date of this decision to file and serve written submissions on costs, with the respondent having a further 14 days in which to respond. Costs shall be determined on the papers unless a party wishes to be heard orally. Catchwords: APPEAL - Occupational health and safety - Prosecution of a correctional centre for contravention of s 8(2) of the Occupational Health and Safety Act 2000 - Amputational injury to thumb of inmate - Correctional centre found guilty in Chief Industrial Magistrates Court - Whether correctional centre could be liable for injury to inmate - Whether Chief Industrial Magistrate (CIM) erred in rejecting appellant's defence under s 28(b) of Occupational Health and Safety Act - Whether charge was invalid by reason of the failure of the prosecution to plead the measures the appellant should have taken to avoid the risk of injury - Whether sentence was manifestly excessive - Second and third particulars did fail to specify the measures the appellant should have taken to avoid the risk of injury - Held that CIM erred in finding second and third particulars of charge were made out - Matter remitted to CIM OCCUPATIONAL HEALTH AND SAFETY - Appeal from Chief Industrial Magistrate (CIM) - Prosecution of a correctional centre for contravention of s 8(2) of the Occupational Health and Safety Act 2000 - Amputational injury to thumb of inmate - Correctional centre found guilty - Whether correctional centre could be liable for injury to inmate - Whether CIM erred in rejecting appellant's defence under s 28(b) of Occupational Health and Safety Act - Whether charge was invalid by reason of the failure of the prosecution to plead the measures the appellant should have taken to avoid the risk of injury - Whether sentence was manifestly excessive - Second and third particulars did fail to specify the measures the appellant should have taken to avoid the risk of injury - Held that CIM erred in finding second and third particulars of charge were made out - Matter remitted to CIM Legislation Cited: Crimes (Local Courts Appeal and Review) Act 2001 (NSW) Crimes (Administration of Sentences) Act 1999 (NSW) s 7(3) Crimes (Administration of Sentences) Regulation 2001 (NSW) Criminal Procedure Act 1986 (NSW) Industrial Relations Act 1996 (NSW) s 197, s 188 Occupational Health and Safety Act 2000 (NSW) s 8(2), s 28(b) Prevention of Cruelty to Animals Act 1979 (NSW) s 8(1) Cases Cited: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2009] NSWIRComm 15; (2009) 181 IR 390 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 Inspector Stuart Larkin v South Pacific Seeds Pty Ltd [2006] NSWIRComm 247 John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 Knaggs v Director of Public Prosecutions and Anor [2007] NSWCA 83; (2007) A Crim R 366 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241 R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Rodden v Regina [2008] NSWCCA 53 St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39; (2007) 162 IR 241 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 WorkCover Authority (NSW) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278; (2001) 110 IR 182 Category: Principal judgment Parties: The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) (Appellant) WorkCover Authority of New South Wales (Respondent) Representation: Mr A R Moses SC with Mr Y Shariff of counsel (Appellant) Mr S Crawshaw SC with Mr D B O'Neil of counsel (Respondent) Berry Buddle Wilkins, Lawyers (Appellant) DLA Phillips Fox, Lawyers (Respondent) File Number(s): IRC 267 of 2008 JUDGMENT OF THE FULL BENCH 1This is an application for leave to appeal and appeal by The GEO Group Pty Ltd (trading as Junee Correctional Centre) ('the appellant') from a decision and orders of Chief Industrial Magistrate Hart in WorkCover Authority of New South Wales (Inspector Hannah) v The GEO Group Australia Pty Limited (t/as Junee Correctional Centre) (7 February 2008, CIM20071789/0712 ( formerly No. 20173945/0612), unreported). His Honour found the appellant guilty of a contravention of s 8(2) of the Occupational Health and Safety Act 2000 ('OHS Act') arising out of an incident on 7 December 2004 when an inmate of the Junee Correctional Centre, Mr A, suffered a serious amputation injury to his thumb whilst operating a brake press. His Honour determined that the appropriate penalty was $65,000, which was reduced to $55,000 in view of the jurisdictional limitations imposed on the Chief Industrial Magistrate's Court: see s 105(2) of the OHS Act and R v Doan [2000] NSWCCA 317; (2000) 50 NSWLR 115 at [35]. 2There has been quite a delay in the hearing of the appeal. This was due to a number of factors including interlocutory proceedings (see GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2009] NSWIRComm 15: (2009) 181 IR 390), the unavailability of senior counsel and adjournments pending the decision of the High Court in Kirk v Industrial Court of New South Wales; [2010] HCA 1; (2010) 239 CLR 531 and the decision of the Full Bench of the Industrial Court in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189. BACKGROUND 3The appellant was engaged in the business of operating and managing correctional centres and prisons in New South Wales. At all relevant times the appellant was responsible for the management of the Junee Correctional Centre. 4A large number of inmates at the Centre participated in various schemes whereby they were allocated various work activities that they could perform and for which they would receive some form of limited payment. 5On 7 December 2004, Mr A was at the Centre engaged in the performance of certain activities involving a Chalmers and Corners brake press in the Industry Section of the Centre. The appellant did not own the brake press and had no expertise in its manufacture or its operation. The brake press was supplied to the appellant by Durabuilt, a partnership conducted by Mr and Mrs Suggate. Durabuilt had entered into a contract with the appellant for the supply of suitable machinery for the manufacture of component parts for garden sheds. The appellant was required to supply labour to operate the machinery for an agreed price and Durabuilt was to provide the brake press, other machinery and sheets of metal to be used in the manufacture of the garden sheds. Durabuilt was required to ensure that the machinery was compliant with relevant occupational health and safety standards. 6The relevant facts leading to the incident when Mr A was injured were not in dispute. Those facts were as follows: (a) at the time when Mr A was working on the Brake Press, he had placed a piece of metal into position and was holding it in position as was his normal practice; (b) the die of the Brake Press was activated by a foot pedal and just as Mr A was about to activate the foot pedal, a fly landed on his face and instinctively lifted one hand to brush away the fly whilst leaving his other hand in the vicinity of the strike zone of the machine; and (c) at the time Mr A brushed away the fly, he also brought his foot down on the pedal at the same time causing the die of the machine to strike and cause a serious amputation injury to his thumb. 7The respondent, the WorkCover Authority of New South Wales, asserted that the appellant had contravened s 8(2) of the OHS Act. It was asserted that the brake press had initially been installed at the Junee Correctional Centre with all relevant guarding affixed in its original condition. The prosecution case alleged that by 7 December 2004 this guarding had been removed from the brake press and that Mr A suffered injury to his thumb when he operated the brake press to bend sheets of steel on that day. 8The Court Attendance Notice ('CAN') alleged as follows: On the said date at the said place, the Defendant, being an employer, failed to ensure that people not in its employment, including [Mr A] (injured person), were not exposed to risks to their health and safety arising from the conduct of the Defendant's undertaking whilst at the Defendant's place of work in that whilst the injured worker was in the process of bending sheets of steel using a Chalmers and Corners Brake Press (Press) in the course of his normal duties, he inadvertently activated the Press, causing the tip of his right thumb to be severed by the dies of the Press, by reason that 1 The Defendant failed to maintain adequate guarding of the Press in that the guarding was removed and not replaced on the Press; 2 The Defendant failed to ensure that systems of work for bending sheet metal by the use of the Press were safe and without risk to health; 3 The Defendant failed to provide such information, instruction and training as was necessary to ensure [Mr A's] health and safety at work. 9The appellant at first instance denied culpability in respect of the offence. The appellant's primary argument was that the respondent had not established the particulars of the offence beyond reasonable doubt in that it had failed to prove that at the time of the offence Mr A was performing " work " or was " at work " within the meaning of the OHS Act. 10In the alternative, the appellant raised defences under s 28(b) of the OHS Act. The appellant contended that Mr Suggate had failed to discharge his obligations to ensure that the brake press was properly guarded, that he had failed to ensure that safe work procedures were established in relation to the operation of the brake press and had failed to provide a system for the induction and training of persons who were to operate the brake press. The appellant also contended that Mr Suggate had authorised modifications that were made to the brake press by inmates, which resulted in the removal of guarding. The appellant further submitted that Mr A operated the brake press knowing that the guarding had been removed and knowing that he was thus exposed to a risk of injury. It was also contended that the incident was caused by Mr A brushing away a fly and not any act or conduct on the appellant's part. 11Section 8(2) and s 28(b)of the OHS Act, respectively, provide: 8 Duties of employers (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. ... 28 Defence It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: ... (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. FINDINGS AT FIRST INSTANCE 12The learned Chief Industrial Magistrate made a number of findings, the main ones being as follows: (a) in a prosecution under s 8(2) it was not necessary for the prosecutor to establish the employment status of Mr A or that Mr A was " at work " within the meaning of the word " work " as defined in s 4 of the OHS Act (i.e., that he was either an employee or self employed person); (b) the wording of the short particulars of the charge in the CAN did not give rise to uncertainty or a denial of procedural fairness. (c) his Honour held in relation to Mr Suggate's evidence that: (i) Mr Suggate's evidence should not be accepted where it was in conflict with the evidence of other witnesses; (ii) Mr Suggate had failed to participate in any meaningful way in the commissioning of the brake press machine at the appellant's premises, he had played no part in any risk assessment and none was conducted, he played no role in the preparation of a safe system of work and none was developed and he played no role in establishing an appropriate system for the induction and training of persons who would be operating the brake press; (iii) Mr Suggate had failed to perform any of his contractual obligations in respect of safety related matters and the appellant had failed to require him to perform these obligations; (d) inmates at the Junee Correctional Centre had taken steps to modify the brake press in a number of ways including the removal of guarding and Mr Suggate authorised these modifications including the removal of the guarding; (e) Mr A knew prior to the day of the incident that the brake press was dangerous (including by reason of it being unguarded), but he proceeded to operate the brake press in any event without reporting his concerns or making a complaint to the appellant. (f) in relation to the conduct of Mr Suggate and Mr A, his Honour held: (i) despite Mr Suggate's conduct being worthy of condemnation, the appellant's responsibility was not diminished and that its statutory obligations could not be delegated to another person pursuant to a commercial contract; (ii) despite Mr A performing work on the brake press knowing its dangers, this did not have the effect of "freeing" the appellant in any way from its statutory obligations; (iii) despite the incident being brought about by a fly landing on Mr A, he was nevertheless operating an unguarded machine and was exposed to risk. (g) the appellant's s 28 defence must fail because the appellant failed to comprehend its statutory obligations and as a consequence failed to bring to bear the appropriate resources and expertise to meet its statutory obligations; (h) the appellant believed that it could enter into commercial arrangements with Mr Suggate whereby Mr Suggate would be given responsibility for certain occupational health and safety matters and that the appellant proceeded on the basis it could rely substantially on inmates to act in a responsible fashion which would assist in ensuring appropriate occupational health and safety standards at the appellant's workplace. (i) in relation to sentencing his Honour found: (i) the appellant's offence was objectively serious and there was a need for significant general deterrence; (ii) whilst there was a need for specific deterrence, the appellant had a commendable safety record and had taken steps to remedy the breach, and therefore there was no requirement for any significant specific deterrence; (iii) there were no aggravating factors; (iv) there were a number of subjective factors mitigating in favour of the appellant including the following: (a) the appellant had no prior convictions despite its vast operations and longevity in operation in New South Wales, Victoria and Queensland; (b) the appellant cooperated with the investigating authority; (c) immediately following the incident, the appellant ensured that Mr A received appropriate medical treatment and he and others were offered counselling services; (d) the appellant was a good corporate citizen; (e) the appellant had expressed genuine contrition and remorse; (f) the appellant had a valid sense of grievance as a result of the non-prosecution of another party; (v) the appropriate penalty was a fine of $65,000 which was reduced to $55,000 in view of the jurisdictional limitations imposed on the Chief Industrial Magistrate's Court. GROUNDS OF APPEAL 13The grounds of appeal in the amended application were as follows: 1. His Honour erred in finding that the Appellant had contravened s 8(2) of the OH& S Act. 2. His Honour erred in finding that the Appellant's defence pursuant to s 28 of the OH&S Act must fail. 3. His Honour erred in finding that the word "work" which appeared in the Court Attendance Notice was not to be defined in accordance with s 4 of the OH&S Act. 4. His Honour erred in failing to find that the Respondent was confined to providing the elements of the s 8(2) offence that fell within the particulars of the Court Attendance Notice. 5. His Honour erred in failing to find that the Respondent had not established an offence by the Appellant pursuant to s 8(2) of the OH&S Act. 6. The decision was against the evidence and the weight of evidence. 7. His Honour erred in law in his exercise of discretion upon sentencing which fundamentally miscarried. 8. The decision is contrary to the public interest. 9. Such other grounds as this Court deems fit. LEAVE TO APPEAL 14There remains an unresolved issue at appellate level whether or not the appellant had a right of appeal pursuant to the Crimes (Local Courts Appeal and Review) Act 2001, or whether the appeal is subject to the grant of leave to appeal, as provided by s 188 of the Industrial Relations Act 1996: see, for example, Inspector Stuart Larkin v South Pacific Seeds Pty Ltd [2006] NSWIRComm 247. 15It is not necessary for the Court to decide this question, given that both parties proceeded on the assumption leave was required and made no submissions regarding the question and given the Court's decision that, should leave be required, it is granted in any event for the reasons that follow. 16The appellant submitted there were matters raised by the appeal that were of sufficient importance in the public interest and in respect of important issues of law and principle. These matters included the following: (a) The appeal raises questions about the liability of operators of Correctional Facilities as to their obligations to inmates, a matter which has not been previously considered by the Full Bench; (b) The appeal raises questions about the prosecutor being confined to the elements that fall within the particulars pleaded in the charge in circumstances where those matters have not been established beyond reasonable doubt; (c) There was a miscarriage of justice in that the Appellant was convicted without a proper evidentiary and legal foundation; (d) The charges laid against the Appellant were invalid and the exercise of power by the trial judge amounted to jurisdictional error; (e) There was a miscarriage of justice because the trial judge did not consider the elements of the defence under s.28(a) of the OHS Act and/or misapplied those elements and/or came to a conclusion that was entirely against the weight of evidence; (f) There was a miscarriage of justice in that the sentence imposed was manifestly excessive. Whilst the respondent opposed leave being granted, we are satisfied the appeal does raise questions about the liability of operators of correctional facilities as to their obligations to inmates in respect of occupational health and safety, which in our opinion is a matter of public importance. Such questions have not been previously considered by the Full Bench. We propose to grant leave to appeal if such leave is required. APPELLANT'S CASE ON APPEAL 17The appellant's submissions on appeal were encapsulated in four grounds: the liability ground, the defence ground, the invalidity ground and the manifestly excessive sentence ground. Liability ground 18The first of the appellant's contention under this ground was that by the particulars, the respondent alleged that: ( i) Mr A was at work on the 7 December 2004; and ( ii ) Mr A was performing work on 7 December 2004. It was submitted the word " work " is defined by s 4 of the OHS Act as being carried out by either an employee or a self employed person. Despite this, it was submitted the respondent failed to establish beyond reasonable doubt that Mr A was an employee or self employed person on 7 December 2004. Indeed, it was submitted, the respondent did not establish the status of Mr A as an employee, self-employed person or otherwise. 19Secondly, it was submitted inmates of correctional facilities undertaking work at the direction of the Commissioner are not employees for the purpose of any state legislation including the OHS Act: s 7(3) of the Crimes (Administration of Sentences) Act 1999 ("the CAS Act"). 20The appellant submitted that: The CAS Act clearly intends to preclude courts from applying the common law definition of "employee" to work done by inmates at the direction of the Commissioner under sections 6 and 7 of the CAS Act for the purpose of determining liabilities contingent upon status as an "employee" in respect of relevant legislation. That is, the common law definition of "employee" does not apply to inmates of correctional facilities undertaking work at the direction of the Commissioner because this legislation excludes them from being defined as employees for the purpose of any state legislation including the OHS Act. There are only two legislative circumstances in which prisoners obtain payment while in prison being: (a) during involvement in a program of work release; or (b) involvement in the correctional centre routine which involves work being done by inmates as set out in sections 6 and 7 of the CAS Act and Part 3 of the relevant Regulations, being the Crimes (Administration of Sentences) Regulation 2001. There was no evidence tendered, nor did the prosecutor establish, that Mr Andrews was engaged in work in the prison at the direction of the Commissioner. As such, the Court could not have been satisfied beyond reasonable doubt that Mr Andrews was performing work at the time of the offence. Nor could the Court have been satisfied beyond reasonable doubt that Mr Andrews was not performing work at the time of the offence and was covered by the exclusion at section 7(3) of the CAS Act. The prosecutor did not lead any evidence upon which the Court could have been so satisfied. Defence ground 21It was submitted his Honour did not address himself to the elements of the defence pursuant to s 28(b) of the OHS Act. Further, that the appellant's defence required the Chief Industrial Magistrate to determine issues as to control over the causes of the offence and impracticability. None of these matters were addressed by his Honour. In failing to address these matters, it was submitted his Honour engaged in a serious error of law, misapplied the elements of s 28(b) of the OHS Act (or entirely ignored them) or constructively failed to exercise jurisdiction by failing to decide the question of the defence in accordance with law. As a result, a substantial miscarriage of justice has arisen which needs to be remedied on appeal. 22Senior counsel for the appellant submitted his Honour should have found that the appellant had successfully established the defence under s 28(b) of the OHS Act for the following reasons: (a) First, the Appellant did not own the Brake Press nor have any expertise in relation to its manufacture and operation. This expertise was held by Durabuilt and Mr Suggate. It was Durabuilt and Mr Suggate's responsibility to ensure the safe operation of the Brake Press; (b) Secondly, Mr Suggate did not take any steps to ensure the safe operation of the Brake Press. At all material times, the Appellant was relying upon Mr Suggate to do so; (c) Thirdly, rather than ensuring the safe operation of the Brake Press, Mr Suggate in fact authorised modifications of the Brake Press, which included the removal of its guarding. This was not a decision made by the Appellant and it had no control over this decision as Durabuilt and Mr Suggate held the responsibility to make those decisions; (d) Fourthly, Mr A himself was aware of the risk of operating an unguarded Brake Press. He operated the Brake Press with that knowledge. The Appellant had no control over such erratic decision making and, in short, Mr A was on his own frolic; (e) Fifthly, Mr A did not report or complain about the safety issues he had identified in relation to the operation of the Brake Press. This was contrary to the established practice to report to management about risks to safety. Again, the Respondent had no control over Mr A's actions and defiance of established practices; (f) Sixthly, the incident was brought about by reason of Mr A instinctively brushing aside a fly which had landed upon him. The Appellant had no control over this. 23The appellant submitted: In the present matter, both Mr Suggate and Mr [A] failed to observe safe practices. The Appellant had no control over their deviations from lawful and safe practices. These were the causative matters in respect of which the Appellant had no control: see McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241 at 246. It was entirely impracticable for the Appellant to make provision against the happening of the deliberate, conscious and unsafe decisions made by Mr Suggate and Mr [A]. As further developed below, it is significant that there was an absence of an affirmative case by the prosecutor to demonstrate measures which were available and practicable for the Appellant to adopt to counteract the unsafe decisions made by Mr Suggate and Mr [A]: see WorkCover Authority (NSW) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278; (2001) 110 IR 182 at [98]. The invalidity ground 24Senior counsel submitted the charges and particulars in the present case did little more than replicate the words of s 8(2) of the OHS Act and a t no stage did the respondent plead or particularise the measures that the appellant should have taken to avoid the risk. Therefore, no relevant act or omission was pleaded or particularised in respect of the appellant so as to constitute an offence of s 8(2) of the OHS Act. This also affected the defence raised by the appellant because the respondent never put an affirmative case, such as the measures that the appellant should have taken and over which the appellant did not have any control. Accordingly, the charges were bad at law. They were invalid and the conviction cannot stand: see Kirk . 25The appellant accepted that the invalidity ground was not raised in the proceedings at first instance. However, it was submitted there was no reason why leave should not be granted for it to be raised on this appeal: see Rodden v Regina [2008] NSWCCA 53 at [90]-[93]. The manifestly excessive sentence ground 26The appellant submitted the sentence imposed was manifestly excessive: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340-341 per Gleeson CJ and Hayne J. It was the maximum sentence that could be imposed by the Chief Industrial Magistrate's Court. The offence was not one which warranted the imposition of the maximum sentence available in light of the many and varied subjective factors weighing in favour of the appellant. Those factors included the following, which his Honour accepted: (a) the Appellant had no prior convictions; (b) the Appellant's safety record was commendable in light of its operations and longevity in operation in New South Wales, Victoria and Queensland; (c) the Appellant cooperated with WorkCover; (d) the Appellant provided appropriate medical care for Mr A; (e) the Appellant was a good corporate citizen; (f) the Appellant had expressed genuine contrition and remorse; (g) there was a valid sense of grievance as a result of the non-prosecution of another party. 27The appellant contended that taking into account the culpability of Mr Suggate, the offence was in the low to mid range of "guarding" offences. RESPONDENT'S CASE ON APPEAL 28The respondent contended that none of the appeal grounds were made out. We shall address the respondent's arguments in our consideration of the appeal. CONSIDERATION Liability and invalidity grounds 29There was no obligation on the prosecutor to prove that Mr A was an employee. The essential elements that the respondent was required to prove beyond reasonable doubt under s 8(2) of the OHS Act were: that the appellant was an employer; that the appellant failed to ensure that Mr A (not being an employee of the appellant) was not exposed to a risk to his health and safety; that the risk arose from the appellant's undertaking; and at the time the exposure to risk arose, Mr A was at the appellant's place of work. 30Section 8(2) is not concerned with the safety of employees; that lies within the province of s 8(1). Section 8(2) is concerned with the safety of persons other than employees at an employer's place of work. "Place of work" is defined in s 4 of the OHS Act as meaning "premises where persons work". There can be no doubt, and it was not contested by the appellant, that the Correctional Centre constituted premises as defined in s 4 ("any land, building or part of any building, or... any installation on land"). The appellant accepted that the Correctional Centre was a place where persons were working, that is, inmates participated in various work schemes at the Centre. Indeed, it was accepted that "Mr [A] was working on the Brake Press..." when he was injured. The risk was the risk of injury from an unguarded brake press and so the risk arose at the time Mr A was working on the brake press. 31It does not appear to have been in dispute that the appellant was an employer at the relevant time. It could not be in dispute for the reasons just given that the Correctional Centre was "a place of work" and that Mr A was at the place of work when the risk to his health and safety arose. 32The appellant appeared to rely on the reference to "at work" in the third particular to contend that because "work" was defined in the OHS Act (s 4) to mean "work as an employee or as a self-employed person", the respondent at first instance had failed to prove that Mr A was an employee or self employed person and, therefore, the respondent had failed to make out the charge. The reference to "at work" was only in relation to the third particular, and even if the appellant was correct in its submission, the reference to "at work" did not invalidate the whole charge. In any event, the reference to "at work" in the third particular, in the context of a charge under s 8(2), is to be read as a reference to the employer's place of work. 33That leaves two elements to be proven: whether the appellant failed to ensure Mr A was not exposed to risk and whether the risk arose from the appellant's undertaking. 34Dealing with the second issue first, it does not appear that there was any contest over whether the risk arose from the appellant's undertaking except tangentially through the appellant's reliance on a defence under s 28(b) of the OHS Act whereby it was contended that the offence was due to causes over which the appellant had no control. 35It is apparent that the risk did arise from the appellant's undertaking. The evidence was the appellant conducted the Correctional Centre and at the Centre various schemes were undertaken whereby inmates were allocated various work activities that they could perform and for which they would receive some form of limited payment. The risk arose at the Centre whilst Mr A was operating a brake press as part of a scheme that involved the fabrication of parts by inmates for a business conducted by Mr and Mrs Suggate. Those operations were supervised by employees of the appellant. 36As to whether the appellant failed to ensure Mr A was not exposed to risk, the CAN specifically alleged that this was so. The CAN also identified the time and place of the alleged offence, the manner in which it occurred was addressed in the three particulars: 1 the Defendant failed to maintain adequate guarding of the Press in that the guarding was removed and not replaced on the Press; 2 the Defendant failed to ensure that systems of work for bending sheet metal by the use of the Press were safe and without risk to health; 3 the Defendant failed to provide such information, instruction and training as was necessary to ensure [Mr A's] health and safety at work. 37The appellant, nevertheless, contended that the respondent had not pleaded or particularised the measures that the appellant should have taken to avoid the risk. Therefore, no relevant act or omission was pleaded or particularised in respect of the appellant so as to constitute an offence of s 8(2) of the OHS Act: see Kirk . 38In the context of a prosecution under one of the general duties provisions of the OHS Act, including s 8(2), Kirk requires the prosecutor to plead not only the act or omission alleged to have created the identifiable risk, but also the measure or measures that the defendant should have taken to avoid the risk: see Kirk at [15]-[19]. The rationale for this requirement is to enable the defendant to establish a defence under s 28, if one is available. The defendant is not obliged to put up a defence to every conceivable measure that may have been taken to avoid a risk, but only those that were reasonably practicable (s 28(a)) or those that due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision (s 28(b)). The prosecution has a duty to identify such measures in the pleadings: Kirk . 39Turning to the particulars in the present appeal, it is clear in the first particular that the allegation was that the appellant failed to maintain adequate guarding of the brake press in that the guarding was removed and not replaced on the press. The appellant submitted, however, that the charge did not identify the measure it should have taken to avoid the risk of injury from operating an unguarded brake press and that it was not sufficient for the respondent to rely on the contention that the measure was implicit in the first particular. 40The appellant submitted that the owner of the press had authorised a modification of the guarding of the machine and was responsible for the training of persons using the machine. In those circumstances, it was submitted, there was an obligation on the respondent to plead what it was the appellant should have done in circumstances where the installer of the machine had authorised a modification involving removal of the guard and had trained the inmates to operate the modified machine and where the appellant had no expertise in relation to the operation of the machine. 41This seems to be a submission that the appellant had no responsibility for the operation of the press; that the responsibility lay entirely with the installer and the inmates that were trained by the installer to use the press. Therefore, it could not have known what measure was necessary to avoid any risk caused by the removal of a guard. 42The particular does not expressly state the measure by which the risk could have been avoided but it seems to us that the appellant could not have been under any misapprehension as to the measure that the respondent was alleging that the appellant should have taken, namely, replace the guarding that had been removed. 43Indeed, it is apparent from the transcript record of the proceedings before the Chief Industrial Magistrate that senior counsel for the appellant accepted that in relation to the first particular it was an indefensible proposition to contend that the appellant had no control over what caused the appellant to commit the offence and against the happening of which it was impracticable for the appellant to make provision. 44That the measure to be taken to avoid the risk was replacement of the guarding that had been removed is necessarily to be implied: see s 16(1)(b) of the Criminal Procedure Act 1986; Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [130] per Basten JA; Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 at [48]-[50] per Basten JA. 45Basten JA explained in Downey at [45] that the view he took in Rockdale Beef , with which Mason P agreed, was that the relevant statutory provision identifying the requirements of a valid application, was limited to a statement of "the nature of the offence" (at [109]) and that the element identified as omitted in express terms was sufficiently fulfilled by a statement that the plant in question was "used by people at work" and was identified as "a drag chain conveyor", language which gave rise to the clear inference that it was machinery of a kind used in the course of a trade, business or other undertaking: at [125]. 46Similarly in Downey , the Court of Appeal considered a charge under s 8(1) of the Prevention of Cruelty to Animals Act 1979, which provided: (1) A person in charge of an animal shall not fail to provide the animal with food, drink or shelter, or any of them, which, in each case, is proper and sufficient and which it is reasonably practicable in the circumstances for the person to provide. 47The Court Attendance Notice described the offence in the following terms: FAIL TO PROVIDE PROPER & SUFFICIENT FOOD Being the person in charge of an animal, to wit, a cow, did fail to provide the said animal with food which was proper and sufficient and which is reasonably practicable in the circumstances for the person to provide. 48The applicant's complaints, as Basten JA noted at [48], in respect of this charge were that: [I]t failed to specify that which was not supplied, contenting itself with the words of the section ("food which is proper and sufficient") and, as a consequence, failed to identify that which it was reasonably practicable to provide. The applicant sought to draw an analogy with the circumstances in Kirk . 49At [49]-[50], Basten JA, with whom Allsop P and Macfarlan JA agreed, stated: [49] ... In the present case, the charge made clear that that which had not been supplied was proper and sufficient food. It was further alleged that that omission contributed to the poor body condition of the animal which, at least by necessary inference, constituted an allegation that whatever had been provided was not both "proper and sufficient". [50] It followed that the essential elements of the offence were addressed in the charge. The nature of the feed required by cattle, and its availability in the area at the relevant time, would have been matters for evidence. If particulars had been sought, a court may have directed the prosecutor to give them. None were sought, either in the Local Court or the District Court. 50Given that it is necessarily implied in the particular that the measure that should have been taken by the appellant was to replace the guarding, any additional information about how that might have been achieved could have been obtained by seeking further particulars, but none were sought. 51Further, as the respondent correctly submitted, the use of the word "adequate" in particular 1 does not negate the proposition that a measure has been identified: see John Holland Pty Ltd v Industrial Court of New South Wales; [2010] NSWCA 338 (" John Holland (CA)") at [78] - [79], [118], [123], [135] - [141]. Any issue with the terminology "adequate" was at its highest "a matter for further particularisation" John Holland (CA) at [79], [118] and [141]) and as such was not "so gross" a defect that as a matter of construction s 16(2)(a) of the Criminal Procedure Act would be read as not applying to the particular: see Knaggs v Director of Public Prosecutions and Anor [2007] NSWCA 83; (2007) A Crim R 366 at [48] per Campbell JA. Neither before nor during the trial did the appellant make any request for further and better particulars regarding what was meant by "adequate". 52We turn to the second particular, which alleged that the appellant had "failed to ensure that systems of work for bending sheet metal by the use of the Press were safe and without risk to health". The respondent concedes that the particular is invalid given the plurality's decision in Kirk. In Kirk the particulars considered were in the following terms: The particulars of the charge are that the Defendant failed to: i ensure that persons not in the employer's employment were not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work in relation to the operation of the Polaris All Terrain Vehicle ('ATV'); ii ensure that the Polaris All Terrain Vehicle ('ATV') was only operated by persons with appropriate training; and iii adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm. 53In relation to those particulars, the plurality stated at [28]: [28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable. We accept that the second particular is invalid for failing to identify the measure or measures that could have been taken to avoid the risk of injury. However, the respondent is entitled to rely on the first particular, which is sufficient to make out the charge: Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 485 as applied in The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan [2005] NSWIRComm 198; (2005) 143 IR 57 at [93]; St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39; (2007) 162 IR 241 at [40], [44] and [76]. 54In relation to the third particular, it also falls foul of Kirk , but what we have said about the respondent being entitled to rely on the first particular to make out the charge also applies in relation to the third particular. 55We find that the charge was made out on the basis of the first particular. We also find that the Chief Industrial Magistrate erred in finding that the second and third particulars were made out. Defence ground 56As the respondent submitted, this ground of appeal must fail in relation to the measure identified in particular 1. The appellant raised the s 28(b) defence only in relation to particulars 2 and 3, which we have found were invalid in any event: I don't, your Honour, make any submission concerning s.28(a). The Defendant does not rely on that in respect of a defence in this matter, should your Honour find that otherwise the offence is proven. The Defendant would invoke s.28(b) in respect of particulars 2 and 3 but not particular 1. No defence could be sensibly argued in respect of that issue should your Honour be against me on the two matters that I've raised being the overall submission that the matter was not made out because of the fatal omission by the Prosecutor to deal with the issue of work as defined under the Act and the status of Mr Andrews, and secondly on the issue of the submissions I have made concerning the status of Exhibit 5 and the culpability of Suggate. Manifestly excessive sentence ground 57Section 105(3) of the OHS Act provides: The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from the Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before the Local Court for offences against this Act or the regulations. 58Section 197 of the Industrial Relations Act provides for appeals from the Local Court to a Full Bench of the Industrial Relations Commission in Court Session. Section 197(4) provides: The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate. 59It is clearly the case that in sentencing the appellant the learned Chief Industrial Magistrate had regard to each of the omissions alleged in the particulars of the charge. We have found on appeal that the second and third particulars were invalid, leaving only the first particular as constituting the nature of the offence by which its objective seriousness may be gauged. 60The sentence was a matter the subject of appeal. Pursuant to s 197(4) of the Industrial Relations Act , we propose to refer that matter back to the Local Court for the purpose of re-sentencing in light of our decision. 61The parties will be provided with an opportunity to make further submissions regarding costs. ORDERS 62The Full Bench makes the following orders: (1) In the event that leave to appeal is required, leave is granted. (2) The appeal is upheld to the extent determined in this decision. (3) The matter of sentence is referred back to Chief Industrial Magistrate Hart for the purpose of re-sentencing in the light of this decision. (4) The appellant shall have 14 days from the date of this decision to file and serve written submissions on costs, with the respondent having a further 14 days in which to respond. Costs shall be determined on the papers unless a party wishes to be heard orally. ********** 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. Decision last updated: 04 March 2011