Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Pile v Sutherland [2011] NSWIRComm 163 Hearing dates: 12 December 2011 Decision date: 12 December 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: The defendant's motion is dismissed. Costs are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - notice of motion to stay proceedings - alleged abuse of process - rule against 'double jeopardy' - alleged breach of s 9 of the Occupational Health and Safety Act 2000 - concurrent proceedings for alleged breach of s 14 of the Home Building Act 1989 - whether essential elements of the offences are the same or substantially the same - notice of motion dismissed - costs reserved Legislation Cited: Home Building Act 1989 - s 14 Occupational Health and Safety Act 2000 - s 9 Cases Cited: Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1 Nahlous v R [2010] NSWCCA 59 Pearce v Regina (1998) 194 CLR 610 Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187 Category: Interlocutory applications Parties: Inspector Kevin Pile of WorkCover Authority of New South Wales (Prosecutor) Forbye Sutherland (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) Mr I Judd of counsel (Defendant) Legal Group, WorkCover Authority of New South Wales (Prosecutor) NECA Legal Pty Ltd (Defendant) File Number(s): IRC 202 of 2011 ex tempore Judgment 1The defendant in these proceedings has by notice of motion sought to have them stayed as an abuse of possess. The basis is that by reason of concurrent proceedings taken against the defendant in the local court at Mudgee alleging a breach of section 14 of the Home Building Act (1989) the defendant is exposed to two sets of proceedings which are the same, or essentially the same. 2It is asserted on behalf of the defendant that this enables him to raise a plea in bar to these proceedings. The relevant principles are set out in the decision of the High Court of Australia in Pearce v Regina (1998) 194 CLR 610. 3In passages occurring at paragraphs 18, 19, and 24 of that judgment, it is clear that the joint decision of McHugh, Hayne and Callinan JJ focuses attention on the essential elements of each of the offences which need to be compared to determine whether they are identical, or essentially identical. A plea in bar may then be brought. 4The defendant's outline of argument did not deal with the relevant principles nor did they analyse the elements of the respective proceedings to assist the Court in determining whether a plea in bar might exist in the circumstances of these proceedings. 5The prosecutor's written submissions does refer to the relevant principles and contains an analysis of the elements of each of the offences expressed in a clear and concise manner. These submissions demonstrate conclusively why the defendant's motion must fail. 6I am content to adopt and apply the prosecutor's submissions as my reasons for judgment, not because I am unwilling to express my reasons for myself but because I doubt whether I can improve on them. They are appended to and will form part of my reasons for judgment. 7The defendant's motion is dismissed. Costs are reserved. Appendix Prosecutor's outline of submissions Introduction 1. The defendant claims the prosecution is in breach of the rule against double jeopardy and that therefore the prosecution is an abuse of process. The prosecution rejects the defendant's claim principally because although superficially there may be some resemblance between one of the particulars in one of the charges to an element of the other charge, both charges are in truth directed at different aspects of the defendant's criminal conduct. It is necessary to dissect the charges before dealing with the relevant principles. Section 9 of the OHS Act 2. The defendant was by Order of this Court made on 4 March 2011 ordered to appear before the Court to answer the offence charged in the Application for Order filed by Inspector Pile on 3 March 2011. 3. The offence under section 9 of the Occupational Health and Safety Act 2000 (NSW) ('OHS Act') with which the defendant was charged was that: ...being a self employed person on 4 March 2009 at Paspaley Vineyard, Henry Lawson Drive, Mudgee in the State of New South Wales did fail to ensure, by acts or omissions as particularized below , that persons other than his employees, and in particular, Jouke Adolf Sweigers, were not exposed to risks to their health or safety arising from the conduct of Forbye Sutherland's undertaking while they were at Forbye Sutherland's place of work, contrary to section 9 of the Act. 4. The particulars to the charge are set out at (a) to (i) of the Application for Order. Particulars (e) to (i) set out the relevant acts or omissions by the defendant (see Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1). 5. It would appear that particulars (h) and (i) are relevant here. They say: (h) The defendant failed to have a person at the site who supervised people performing electrical work. (i) The defendant failed to ensure that only people who were qualified and licensed to work without supervision performed electrical work. 6. These two omissions are directly incorporated into the charge as two of the 'acts or omission as particularised below' by which it is said the defendant failure to ensure (guarantee) the health and safety of Mr Sweigers. These were others 'acts and omissions particularised below'. 7. The charge is, of course, much wider than these two particulars. The substance of each of these particulars relates to a failure to have a person (not necessarily the defendant personally) on site to supervise people doing electrical work or only having qualified and licenced people do the work - both omissions relevantly identified aspects of the defendant's conduct in not guaranteeing people were not exposed to the risk 'of electrocution whilst accessing or performing work on near electrical installations and circuits'. In simple terms, providing proper supervision or having properly qualified and licenced people do the work would have prevented the risk and guaranteed safety. 8. The maximum penalty for the breach of section 9 of the OHS Act is $55,000. Section 14 of the HB Act 9. On 14 July 2011 a Court Attendance Notice was issued by Darrel McIntyre which alleged that the defendant had committed an offence against section 14(4) of the Home Building Act 1989 (NSW) ('HB Act'). 10. The description of the offence is recorded in the Court Attendance Notice in the following terms: A qualified supervisor who is supervising any electrical wiring work being done by an individual as referred to in subsection (2) must: (a) give directions that are adequate to enable the work to be done correctly by the individual performing it (which, unless the qualified supervisor considers it unnecessary, must include directions requiring the individual to advise in detail on progress with the work) and (b) be present when the work is being done and be available to be consulted by, and to give directions relating to how the work is to be done to, the individual, and (c) personally ensure that the work is correctly done. 11. The short particulars to the offence are recorded in the following terms: On or about 4 March 2009, the defendant, a qualified supervisor did not supervise any electrical wiring work done by Mr Swiegers , who was not the holder of an endorsed contractor licence, supervisor certificate or tradesperson certificate. The defendant was not present when the work was being done and was not available to be consulted by, and to give directions relating to how the work was to be done and did not personally ensure that the work was done correctly , by Mr Sweigers. Home Building Act 1989, section 14(4); (14(2)) 12. The offence here alleges that the defendant, being a qualified supervisor, did not (personally) supervise the work done by Mr Sweigers, was not present while the work was done and was not personally available to be consulted or to give direction and did not personally ensure that the work was done correctly. The offence under the HB Act focuses on the defendant's failure to personally supervise, be present, consult and direct. Moreover, the object of such supervision etc is not to guarantee safety but rather to guarantee that the work is done correctly. 13. The maximum penalty for the offence against the HB Act is $22,000. The Issue 14. The defendant claims the prosecution is an abuse of process because it breaches the rule against 'double jeopardy'. The rule against double jeopardy precludes, in broad terms, a person from being prosecuted twice for the same criminal conduct. In these matters the defendant is not being prosecuted for the same criminal conduct. Submissions 15. It can be accepted that both offences occurred on the same day at the same place, involved the same defendant and the same particular person. The sameness or similarity between the offences really ends there. 16. The elements of the two offences with which the defendant is charged are different. The omissions alleged are different. There are three significant differences. First, the OHS Act offence alleges a failure to have a person supervising people performing electrical work and/or a failure to ensure only qualified and licenced people did the work. The HB Act offence is narrower. It alleges the defendant failed to personally supervise the work. Secondly, the OHS Act offence alleges the failure to have a supervisor as an omission which did not ensure safety. The HB Act offence alleges the failure to personally supervise did not ensure the work was done correctly. Thirdly, there is more to the offences under the OHS Act - the defendant's omissions are wider and more numerous than just the omission in relation to supervision. 17. The two offences address different aspects of the defendant's criminal conduct. They are directed at different 'things' - the OHS Act offence, in so far as supervision is concerned, is directed to supervision such as would ensure safety and eliminate or control the risk as particularized. The HB Act offence is directed to making sure work done by people who do not have requisite qualifications is done 'correctly'. The evidence in so far as the supervision particular(s) in the OHS Act prosecution one may presume will be similar to that in the HB Act prosecution but a difference will lay in the aspect of the work being done - safety whilst doing the work is the concern of the OHS Act; the HB Act is concerned with work being done correctly. A difference will also lay in the pact that the OHS Act charge does not require personal supervision by the defendant. 18. A person can by the one act commit two offences, especially where the two offences address different aspects of the defendant's criminal conduct. The OHS Act prosecution addresses the failure to provide supervision so as to eliminate or control an identified (particularized) risk to health and safety. The HB Act prosecution addresses the failure to supervise personally in identified ways (by direction, reporting, presence, consultation) to ensure the work is done correctly. 19. The two offences are aimed at different policies and subject matters. The HB Act is concerned with the regulation of residential building work - it is directed to making sure houses are built properly. The OHS Act is concerned with work place safety - it is directed at ensuring the safety of people at work. 20. The difference in the maximum penalties is not irrelevant although it is difficult to describe either offence as 'the principal offence'. The OHS Act offence on its face appears more serious, but in any event they are different offences. 21. Here, there is more than a theoretical possibility that the defendant could be acquitted on one charge and convicted on the other charge. In Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187 it was held that even a mere theoretical possibility of acquittal on one charge would defeat a claim of double jeopardy. The defendant here might prove, for example, that whilst he did not supervise Mr Sweigers personally, and thus committed the HB Act offence, he provided supervision within the meaning of the OHS Act offence and therefore did not commit that offence. Another possibility is that the defendant might prove that he provided supervision that ensured the work was done correctly and thus be acquitted of the HB Act charge but that supervision did not ensure safety. There are numerous permutations given the different elements of each offence. There is more than a theoretical possibility that the defendant could be acquitted on one charge and convicted of the other. This case is not like Nahlous v R [2010] NSWCCA 59 where there is no theoretical possibility of different verdicts from the two charges. 22. Of course here the OHS Act prosecution does not, in any event, depend in its entirety on particulars (h) and (i) being made out. Those are but two particulars amongst many others. Disposition 23. There is nothing oppressive in both charges proceeding. There is no abuse of process. The defendant is not exposed to the risk of double jeopardy. The Notice of Motion should be dismissed. (Underlined text in the above submissions has been replaced by bold text.) 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: 12 December 2011