Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 Hearing dates: 23 March 2011 Decision date: 29 March 2011 Jurisdiction: Industrial Relations Commission in Court Session Before: Haylen J Decision: The orders of the Court are as follows: (a) the Notices of Motion filed by the defendants are dismissed; (b) costs in the Notices of Motion are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 8(2) s 26 - collapse of formwork during construction of water reservoir - two workers receive fatal injuries and three workers receive serious injuries - pleas of guilty entered by all defendants - decision of High Court in Kirk v Industrial Relations Commission & ors (2010) 239 CLR 531 causes prosecutor to file Notices of Motion seeking to amend Applications for Order to add greater particularity in relation to alleged acts and/or omissions of defendants - defendants file Notice of Motion challenging validity of charges - defendants allege relevant risk not identified or pleaded - particulars challenged as not complying with requirements of Kirk judgment - defendants' Notices of Motion dismissed - distinction between statement of offence that fails to specify legal elements of offence and where essential factual particulars not given - where legal elements specified but not essential factual matters proceedings not invalid - statement of offence in each case specified legal elements of offence - requirement for greater particularity of factual matters - requirement to allege a risk to health and safety as part of legal elements does not require the risk to be particularised other than as a factual ingredient in an offence - Notices of Motion seeking amendment by prosecutor adjourned. Legislation Cited: Clean Waters Act 1970 s 16(1) Criminal Procedure Act 1986 s 16 s 246(1) Industrial Relations Act 1996 s 170 Industrial Relations Commission Rules 1996 r 217B Occupational Health and Safety Act 2000 s 8(1) s 8(2) s 26 Occupational Health and Safety Regulation 2001 cl 233 Pesticide Act 1978 Cases Cited: Downey v Acting District Court Judge Boulton (No 5) (2010) 272 ALR 705 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 John L Pty Ltd v The Attorney-General for the State of New South Wales (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (2002) 54 NSWLR 39 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Category: Interlocutory applications Parties: Inspector Childs (Prosecutor) Paul Bortolo Serena (Defendant in 08/ 1447; 08/1453; 08/1454); Walter John Anzolin (Defendant in 08/1448); Area Concrete Pumping Pty Ltd (Defendant in 08/1449; 08/1450); Christopher Anthony Woods (Defendant in 08/1451; 08/1452) Representation: Counsel: Mr Cahill of counsel - Prosecutor Mr Scott of counsel (Defendants in 08/1449; 08/1450; 08/1451; 08/1452) Mr Bradley of counsel (Defendants in 08/1447; 08/1448; 08/1453; 08/1454) Solicitors: Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) John F Morrissey & Company, Lawyers (Defendants in 08/1449; 08/1450; 08/1451; 08/1452) Macken & Vardanega, Solicitors (Defendants in 08/1447; 08/1448; 08/1453; 08/1454) File Number(s): IRC 1447 - 1454 of 2008 Judgment 1Before the Court are eight prosecutions brought under either s 8(1) or s 8(2) of the Occupational Health and Safety Act 2000 as well as prosecutions under both sections by operation of s 26 concerning directors of corporations alleged to have committed breaches of the Act. These prosecutions all arise from the same workplace accident that occurred in late October 2002 at Lake Cargelligo. The workplace accident occurred at a construction site at which a four-mega litre water reservoir was being constructed as part of the Lake Cargelligo - Tullibigeal Water Supply Augmentation Project ("Lake Cargelligo Project"). The defendants are alleged to have been culpably involved in the accident in that, during the concrete pour of the roof slab for the water reservoir, the falsework failed and the whole formwork structure collapsed. As a consequence of the collapse of the formwork, two workers received fatal injuries and three others received serious injuries. 2Although the workplace accident occurred in late October 2002, the conduct of a Coronial Inquiry resulted in proceedings being commenced in September 2008 for a breach of the Act. In the case management of these matters a number of pleas of guilty were entered in March 2009 and in February 2010 the remaining defendants entered pleas of guilty. 3Before the parties were able to meaningfully discuss the contents of an Agreed Statement of Facts in each matter, the High Court delivered judgment in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531. Consideration of that judgment led the prosecutor, in late June 2010, to file Notices of Motion in each matter seeking to substantially amend the particulars. The grounds and reasons in support of each Motion relied upon the decision in Kirk and the desire of the prosecutor to seek to add greater particularity in referring to the alleged acts or omissions that constituted the offence in each matter. By late August 2010, the defendants in each matter had also filed a Notice of Motion in effect seeking a declaration that the order made by the Court pursuant to the provisions of s 246(1) of the Criminal Procedure Act 1986 was invalid, null or void. A further declaration was sought that the Court did not have jurisdiction to hear and determine the prosecution of the defendants for alleged offences under the Act and supplementary orders were sought vacating, dismissing, permanently staying or, alternatively, permanently striking out the order or further alternatively, dismissing or permanently staying the proceedings. 4Rather than immediately proceeding with these issues the parties were content to await the decision of the Court of Appeal in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales (" John Holland "). A decision in that matter was delivered by the Court of Appeal in late 2010 (see [2010] NSWCA 338). 5The prosecutor's motions and the defendants' motions were subsequently listed for hearing at the same time. The parties helpfully provided detailed written submissions analysing the law and many aspects of the pleadings - the Court expresses its appreciation for this assistance. 6In each matter the offences were expressed in very similar terms having regard to the fact that the allegations covered breaches of s 8(1) and s 8(2) and breaches by directors. For present purposes it is sufficient to set out, as an example, the statement of charge in Matter IRC 1447 of 2008 relating to Mr Serena and the charge under s 8(1) by operation of s 26(1) that was in the following terms: I, Barry Childs, of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter allege that on 22 October 2002 Paul Bortolo Serena of 26 Ross Crescent, Griffith in the State of New South Wales, being a director of a corporation, namely P & B Serena Pty Ltd [ACN 078 790 940] ("P & B Serena"), is deemed to have contravened section 8(1) of the Occupational Health and Safety Act 2000 (NSW) by virtue of section 26(1) of that Act in that: P & B Serena, being an employer, on 22 October 2002, at a construction site at which a 4 megalitre water reservoir was under construction as part of the Lake Cargelligo - Tullibigeal Water Supply Augmentation Project, which site was located approximately 300 metres off Uabba Street, Lake Cargelligo in the State of New South Wales, failed to ensure the health, safety and welfare at work of all of its employees and in particular Michael Abel, contrary to section 8(1) of the Occupational Health and Safety Act 2000. The particulars of the offence are: (a) P & B Serena failed to ensure that the scaffolding access tower, erected on the outside of the water reservoir at the site, was safe and without risk to health; (b) P & B Serena failed to ensure that the concrete formwork erected on the site was safe and without risk to health; (c) P & B Serena failed to ensure that any or any adequate safety inspections were undertaken at the site prior to permitting Mr Abel to work at the site; (d) P & B Serena failed to ensure that the formwork erected with respect to the forming of the concrete roof of the reservoir was properly certified prior to the commencement of the subject concrete pour; (e) P & B Serena failed to provide a safe system of work with respect to the pouring of concrete onto elevated formwork; (f) P & B Serena failed to ensure that Mr Abel was supervised properly or at all; (g) P & B Serena failed to provide Mr Abel with any or any proper training and/or instruction with respect to the requirements that needed to be met before he could commence pouring concrete, including obtaining or sighting a copy of a certificate prepared by a formwork engineer in accordance with the requirements of clause 233 of the Occupational Health and Safety Regulation 2001 (NSW) and AS 3610 -1995 Formwork for Concrete. As a result of the abovementioned failures, Michael Abel was placed at risk of injury. 7The relevant statutory provisions are in the following terms: s 8(1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (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. 8In summary, the defendants put forward the following propositions: (a) the effect of both Kirk and the Court of Appeal judgment in John Holland was that the relevant charge needed to be stated in the prosecutor's Application for Order (statement of offence); (b) the presence of a risk to the health and safety of employees and non-employees was the gravamen of a breach of s 8 of the Act. Where an Inspector identified a risk to health or safety of employees or non-employees at a workplace which an employer had not addressed, the section may be contravened. A statement of offence must identify the act or omission said to constitute a contravention of s 8. There must be an identifiable risk and a specification of the measures that the employer failed to take to prevent the identifiable risk eventuating. The statement of offence in each matter, however, did not state or appropriately state the relevant risk to health and safety to the defendants' employees or non-employees; (c) Kirk and John Holland require the statement of offence to identify the act or omission said to constitute the contravention of the Act. The need for proper identification of the act or omission that is the basis of the charge is emphasised when considering possible statutory defences available to a defendant. Unless particular measures are identified in the charge, an employer is denied the opportunity to properly put a defence. It was submitted that the failure to properly state the nature of the offence was fatal. There was a need for precision in the statement of the contravention alleged; (d) It was necessary to examine the pleadings in each matter to see if they were adequate. Each pleading contained no statement as to the risk to the health and safety of employees or non-employees in connection with the breach alleged. A specified risk could not be sensibly read into the list of failures stated as particulars; (e) the pleadings in the Applications for Order in each matter did no more than tick a formulated series of boxes based upon a re-stating of the statutory particulars contained within the relevant sections. It followed that the pleadings in each matter were entirely inadequate and insufficient to state a charge known at law. The pleadings were therefore of no effect. 9In addition to these submissions, counsel for Mr Serena and Mr Anzolin submitted that the risk to health or safety was an essential legal element of the offence and the failure to identify the risk with some precision and particularity resulted in the statement of offence alleging a breach of a statutory offence not known to the law. It may well be that the written submissions for the remaining defendants impliedly took the same point. 10In dealing with these submissions, it is convenient to return to some general statements of the law relating to the content of a statement of charge and the assessment of their validity. Since the judgment of the High Court in Kirk much attention has been paid to the statement of general principle appearing in Johnson v Miller (1937) 59 CLR 467 and John L Pty Ltd v The Attorney-General (NSW) (1987) 163 CLR 508. The application of those principles was addressed by the Court of Criminal Appeal in Taylor v Environment Protection Authority (2000) 50 NSWLR 48. Those proceedings concerned a prosecution brought under provisions of the Pesticide Act 1978. Amongst other matters the defendant alleged that the summons did not contain the essential particular of the act constituting and the manner of committing the offence, including the fact that no acts or omissions were particularised. 11Sperling J, speaking for the Court of Criminal Appeal, stated: [20] To be valid, an information must identify the essential factual ingredients of the offence charged: John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519-520; R v Cassell (Court of Criminal Appeal, 24 July 1996,unreported); Smith v Moody [1903] 1 KB 56; Johnson v Miller (1937) 59 CLR 467. [21] A distinction has been drawn between "essential factual ingredients" (particulars required for the validity of an information) and particulars required merely to ensure that the defendant is able to prepare his or her defence: De Romanis v Sibraa [1977] 2 NSWLR 264; Davies v Ryan (1933) 50 CLR 379 at 386; Stanton v Abernathy (1990) 19 NSWLR 656 at 666, per Gleeson CJ. The latter are not essential particulars: R v Cassell . [22] The authorities provide no comprehensive formula for what constitute essential particulars. However, in Johnson v Miller various requirements were identified. These include "the time, place and manner of the defendant's acts or omissions": per Dixon J (at 486); citing Smith v Moody (at 61 and 63). Dixon J went on to say (at 489-490): ... In my opinion he [the prosecutor] clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. See also Smith v Moody (at 60); Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 173; 55 WN (NSW) 63 at 66; De Romanis (at 291); John L Pty Ltd (at 521). [23] The summons in the present case does not specify the essential ingredients of the alleged offence. It specifies the legal elements of the alleged offence, but it does not specify the acts or omissions by which the appellant is alleged to have carelessly disregarded the instruction on the container. In particular, it does not specify whether the pesticide is alleged to have come into contact with a mattress (or mattresses), bedclothes or clothing, nor does it specify in what manner (that is, by what acts or omissions) the appellant is alleged to have allowed the pesticide to come into contact with such item or items. [24] Question 3(a) should accordingly be answered: Yes. Question 3(b): If the answer to 3(a) is "Yes", are the proceedings void? [25] Section 43 of the Land and Environment Court Act 1979 provides, so far as is material, that no objection shall be taken or allowed to any application (that is, the summons) referred to in, or to any order made under s 41, by reason of any alleged defect in it in substance or in form. This is what is known as a Lord Jervis provision. Similar provisions are to be found in the Justices Act 1902, s 30 and s 65. [26] A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Bartlett (1896) 17 LR (NSW) 108; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261; 64 WN (NSW) 21; Ex parte Burnett; Re Wicks [1968] 2 NSWR 119; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517, per Mahoney JA. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars - such as the time, place, or the manner of the offence - a Lord Jervis provision will operate: John L Pty Ltd (at 529 and 530), per Brennan J; Stanton v Abernathy (at 667), per Gleeson CJ; R v Cassell ; R v Duff (1924) 41 WN (NSW) 23. [27] The summons in the present case falls within the second category of defective informations. It is saved by s 43. 12Taylor v Environment Protection Authority has since been considered and followed on a number of occasions without calling into question the analysis of Sperling J. In Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7, a case dealing with proceedings in the Industrial Court alleging a breach of the Occupational Health and Safety Act , although in dissent, Spigelman CJ in dealing with the provisions of s 16 of the Criminal Procedure Act cited Taylor v Environment Protection Authority and Basten JA at [116] referred to Taylor in relation to the distinction between informations failing to specify the legal elements of the offence and those where essential factual particulars had not been given. 13Of particular significance to the matters presently before the Court is the judgment of the Court of Appeal in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) 54 NSWLR 39 (" McConnell Dowell "). In that case the Environment Protection Authority had issued a summons charging a corporation with polluting waters contrary to the Clean Waters Act 1970. In summary, the summons alleged that on a specified date at a specified place the corporation committed an offence against that Act, "in that it did pollute waters" contrary to s 16(1) of the Clean Waters Act. The defendant in those proceedings sought an order striking out the summons, arguing that it was defective in several respects. In particular, it was alleged that the offence failed to disclose what the defendant did that was alleged to be wrong. 14The judgment of the Court was delivered by Ipp A-JA who at para [10] referred to Taylor v Environment Protection Authority regarding the distinction drawn between informations failing to specify the legal elements of the offence and those where essential factual particulars had not been given. His Honour then went on to analyse the nature of the pleadings and stated: [11] The charge in the summons alleged that the appellant "did pollute waters contrary to s 16(1)". Particulars of the place and kind of pollution alleged were provided in the summons. Accordingly, the question in this appeal is whether the omission of an allegation detailing the act of polluting said to have caused the pollution renders the charge fatally defective so as to preclude the curative effect of s 43. [12] The answer to that question depends, in turn, on whether the act of polluting is a legal element of the offence or merely an essential factual ingredient thereof. That is because a charge that omits a legal element of the offence is incurable, whereas, by reason of s 43, a charge that lacks an essential factual ingredient of the offence may still be maintained. [13] The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed. But putting the difference in this way does not necessarily help in the differentiation process. [14] I think it helpful to note that the purpose of the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out. [15] The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients. [16] This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are s 16(1) and s (7) of the Clean Waters Act . Section 16(1) provides: "A person shall not pollute any waters". Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences and Penalties Act . [17] Significantly, the term "pollute", in relation to waters, is defined by the Clean Waters Act , s 5. The definition contains three paragraphs, each of which provides for a different meaning of pollute. Paragraph (a) provides, generally, that pollute means to introduce into waters any matter so that "the physical, chemical or biological condition of the waters is changed". Paragraph (b) contains a complex definition that broadens the meaning of pollute so that it means (in summary form) to introduce into waters matter which alone or together with other matter makes or is likely to make the waters unclean, etc, detrimental to health of persons, undrinkable to farm animals or is likely to interfere with the enjoyment of rights. Paragraph (c) provides that pollute means to introduce into waters any matter that is of a prescribed nature, description or class that does not comply with a prescribed standard. The latter, in effect, is a deemed polluting. [18] It follows that there are several ways in which a person may pollute waters, namely, the ways defined in the statutory definition of "pollute". That being so, it seems to me, by the language of the statute, the relevant legal element of the offence is the act of "polluting", as defined, of waters. The particular way in which the defendant is alleged to have polluted the waters concerned will constitute the essential factual ingredients of the charge. [19] In Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78 at 83, Gleeson CJ said that an offence of contravening s 16(1) requires the prosecution to prove that the defendant performed some act which resulted in waters being polluted (see also Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79 at 82). This, I think, is on the basis that the prosecution relies on "pollute" as defined in either one of par (a) or par (b). The need to prove these matters stems from the statutory definition of "pollute". The existence of the need, however, does not convert these matters into legal elements of the offence. In my view, they are and remain essential factual ingredients of the legal element of "pollute" in the offence of contravening s 16(1). [20] Accordingly, in my view, the elements of the offence are: (a) a polluting; (b) by a person; (c) of any waters. [21] The charge alleges these three elements. Therefore, the language of the charge, on its face, describes an offence known to the law, namely, a contravention of s 16(1). The court is thereby vested with jurisdiction to hear the prosecution of that offence. 15Applying these two authorities to the pleadings in these various matters, it is appropriate to commence by identifying the elements of a charge under s 8(1) and s 8(2). In relation to s 8(1) the elements of the offence are: (1) the defendant was an employer; (2) there was a risk to an employee's health or safety; (3) that the employee was at work. In relation to s 8(2) a Full Bench in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 at [12] dealing with the equivalent provision under the 1983 Act, identified the elements of the charge as follows: (1) the defendant was an employer; (2) there were persons not employees exposed to risks to their health or safety; (3) the risk arose from the conduct of the defendant's undertaking; (4) the exposure to risk was at the defendant's place of work; 16In terms of the provisions of Rule 217B of the Industrial Relations Commission Rules 1996 (then applicable), the Application for Order stated: (a) the name and address of the person by whom the proceedings were brought - namely Inspector Childs; and (b) the capacity in which the Prosecutor was taking the proceedings, namely as a duly appointed Inspector under the Act; and (c) the name and address of the persons against whom the proceedings were brought, being the defendants and (d) the Act and the section under which the defendant is alleged to have committed an offence, with the Application for Order identifying a contravention of s 8(1) of the Occupational Health and Safety Act ; and (e) the nature of the offence that is alleged: the offence was described in the terms of the statute. The nature of the offence may be stated by use of the statutory language although it does not follow that all of the words of the statute, must be used or that, where the specific provision is adequately identified all the legal elements must be expressly identified. ( Rockdale Beef Pty Ltd per Basten JA [130]; Downey v Acting District Court Judge Boulton (No 5) (2010) 272 ALR 705 at [46]). 17As pointed out by Spigelman CJ in John Holland at [56], the charges should be read as a whole including particulars supplied in the original charge. The Application for Order, in its entirety, is the document that invokes the jurisdiction of the court. If the offence is appropriately identified in the document as a whole, then there is no reason to concluded that the jurisdiction of the Court was not properly invoked. 18Proceeding on the basis that the requirement of Rule 217B to indicate the "nature of the offence" will be met by a statement of charge that uses the statutory language of the provision alleged to be breached and that the charges as a whole should be considered, it is to be noted that in Mr Serena's matters, apart from alleging a contravention of s 8(1), the statement of charge alleged a failure to ensure the health, safety and welfare at work of employees contrary to the identified provision of the Act and then provided particulars specifying failures, in several respects, to ensure that certain parts of the work were "safe and without risk to health." This is so in relation to particulars (a) and (b) and at the conclusion of the particulars it is asserted that, as a result of the abovementioned failures, identified persons were placed at risk of injury. Thus, it can be seen that the statement of charge uses the language of the section and thereby specifies the essential legal element of the charge. There is also force in the prosecutor's submission that particular (g), by reference to cl 233 of the Occupational Health and Safety Regulation 2001 and the Australian Standard 3610-1995 Formwork for Concrete, specifically raises an allegation of a risk of being injured by unstable or improperly erected formwork. It follows from this analysis that the essential legal elements of the offence were set out in the statement of charge under s 8(1). In the s 8(2) matters the different wording of the provision is adopted and again meets the requirements for specifying the essential legal elements. 19Having regard to the judgment of Ipp A-JA in McConnell Dowell , it is to be noted that both s 8(1) and s 8(2) are offences drawn in broad language and are offences that may be committed by a very wide range of conduct. Some indication of the width of the conduct contemplated is provided in s 8(1) where five duties to ensure health and safety are identified without limiting the extent of the duty created by the section. Just as there were many ways in which a defendant may "pollute" under the Clean Waters Act as pointed out in McConnell Dowell, there are numerous risks or potential risks that may be identified in the workplaces covered by the Act. The need to prove an identifiable risk to safety, to use the words of Ipp A-JA at [19], does not convert that need into a legal element of the offence: the identifiable risk remains an essential factual ingredient of an offence contravening s 8(1) or s 8(2). The authorities are complied with where the statement of charge: effectively alleges only a "risk" as a legal element, but, (b) particularises the risk to safety as constituting the factual ingredients of the charge. 20Turning attention to the particulars (a) - (g), while the Inspector's affidavit may have placed those matters in a context that suggested the acts or omissions of the defendants, the particulars in the statement of charge do not sufficiently identify those acts and omissions as required by Kirk and as analysed by the Court of Appeal in John Holland. To the extent that the particulars are therefore defective they are curable by way of amendment, pursuant, at least, to s 16(2) of the Criminal Procedure Act and/or s 170 of the Industrial Relations Act 1996. The prosecutor has proposed to do precisely that and so a situation does not arise as was confronted by the court in Johnson v Miller where the prosecutor declined to amend. 21The Court therefore finds that there is a valid charge in each matter but that the particulars should specify more clearly the acts or omissions alleged against the defendants. The defendants Notices of Motion in each matter are therefore dismissed. 22The defendants addressed some brief remarks to the potential oppressiveness of the very detailed amendments in each matter proposed by the prosecutor. While those submissions were generally stated, having regard to the fact that the defendants have entered pleas of guilty to the charges in their original form, it appeared to the Court that further discussion between the parties as to appropriately amended particulars might be desirable. That course was not opposed by any party. The Court, therefore, does not propose to conclude consideration of the prosecutor's Notices of Motion to amend the charges in each matter. Those suggested discussions are to take place and the parties are given leave to have the matter relisted when those discussions have concluded or where it is thought otherwise appropriate. 23The orders of the Court are as follows: (a) the Notices of Motion filed by the defendants are dismissed; (b) costs in the Notices of Motion are reserved. ********** 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: 29 March 2011