Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Regan v Southern Colliery Maintenance Pty Ltd (No 4) [2012] NSWIRComm 99 Hearing dates: 21 August 2012 Decision date: 05 September 2012 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1. The notice of motion is dismissed. 2. I reserve the question of costs. Catchwords: NOTICE OF MOTION - occupational health and safety - application to amend by prosecutor on fifth day of trial - principles - held - amendment would cause injustice to defendant - motion dismissed Legislation Cited: Coal Mine Health and Safety Act 2002 Criminal Procedure Act 1986 Fair Trading Act 1987 Occupational Health and Safety Act 2000 Cases Cited: James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 R v Industrial Appeals Court; ex parte Barelli's Bakeries Pty Ltd (1965) VR 615 Pollard v The Queen [2011] VSCA 95; (2011) A Crim R 124 Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 205 IR 263 WorkCover Authority (NSW) (Inspector Forster) v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161; (2003) 158 IR 163 Category: Interlocutory applications Parties: Robert William Regan (Prosecutor) Southern Colliery Maintenance Pty Ltd (Defendant) Representation: Counsel: Mr P Strickland SC with Mr D O'Neil of counsel (Prosecutor) Mr D Nagle of counsel (Defendant) Solicitors: Crown Solicitor's Office (Prosecutor) Access Law Group (Defendant) File Number(s): IRC 1033 of 2008 Judgment 1Robert William Regan ("the prosecutor") applied to the Court by notice of motion filed 28 June 2012 for the following orders: 1.That leave be granted to the Applicant to further amend the Amended Application for Order so that the charge date of 7 July 2006 be changed to a charge period of 30 June 2006 up to and including 7 July 2006. 2Mr P Strickland SC, who appeared with Mr D O'Neil of counsel, for the prosecutor, read an affidavit in support of the notice of motion by Peter Robinson, the solicitor with the carriage of this matter. Background 3The application for order in this matter was filed on 2 July 2008. On 24 November 2010, the defendant pleaded not guilty to a charge brought pursuant to s 8(2) of the Occupational Health and Safety Act 2000 ("the OHS Act"). The application to amend was sought on the fifth day of the trial. 4Mr D Nagle of counsel, who appeared for the defendant, opposed the amendment. 5The application for order filed on 2 July 2008, as amended on 21 August 2012, alleged that on 7 July 2006, the defendant: failed to ensure that persons not in its employment, and in particular, Ken Evans, Aaron Morrison, Wayne Powell, Larry Tynan, Gary Nees and Matthew Withers were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, contrary to s 8(2) of the Occupational Health and Safety Act 2000. 6It is convenient to set out the particulars of the amended charge: Particulars of risk: A.Non-employees were exposed to a risk of falling through scaffolding. B.Non-employees were exposed to a risk of being struck by people or objects falling through scaffolding. Particulars of failure: 1.Endeavour Coal Pty Limited (ACN 099 830 476) ("Endeavour Coal") was the lease holder of the Douglas Mine. 2.The Defendant was subject to an agreement with Endeavour Coal whereby the Defendant would provide services including labour and maintenance to Endeavour Coal. 3.The Defendant undertook to supply scaffolding to Endeavour Coal at cut through 12 at the Douglas Mine. 4.The Defendant contracted with Waco Kwikform (ACN 002 835 396) ("Waco") to provide the scaffolding. 5.Blue Water Scaffolding was sub-contracted by Waco Kwikform (ACN 002 835 396) ("Waco") to erect and dismantle the scaffolding at the Douglas Mine. 6.Blue Water Scaffolding purported to have completed the erection of the scaffolding on 7 July 2006 and provided a Scaffold Handover Certificate. It is alleged the Defendant failed to: (a)Ensure scaffolding was erected safely in that the Defendant failed to ensure that Stephen and Danny King were properly supervised at all times whilst they were on site; (b)Ensure scaffolding was erected in accordance with design drawing 53/3521, namely that it included ledgers in each place ledgers were required; (c)Ensure there was a proper inspection of the scaffolding after its erection and prior to its use; (d)Ensure there was a properly completed Scaffold Handover Certificate; (e)Ensure the provisions of the fatal risk protocol were followed; As a result of the said failures, the safety of Ken Evans, Aaron Morrison, Wayne Powell, Larry Tynan, Greg Nees and Matthew Withers was placed at risk and Ken Evans was seriously injured. 7Although the application for order was subsequently amended, such amendment did not change the date of the offence. Relevant legislation 8Section 20 and s 21 of the Criminal Procedure Act 1986 ("the CP Act") provides as follows: 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial: (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict: (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 1978, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. 9Section 170 of the Industrial Relations Act 1996 ("the IR Act") provides: 170 Amendments and irregularities (1)The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2)Any such amendment may be made: (a)at any stage of the proceedings, and (b)on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3)If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4)For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. Principles 10It was common ground that the principles to be applied in determining whether the Court should use its discretion to permit the prosecutor to amend the application for order were recently set out by the Supreme Court of Victoria, Court of Appeal, in Pollard v The Queen [2011] VSCA 95; (2011) A Crim R 124 at [40] - [42]: [40]As Reid illustrates, there is no rule prohibiting the filing over of a new presentment during the course of a trial. In R v Lam, Pidgeon J said that '[i]f the Crown does in fact file an indictment I would see it as being open at an early stage to substitute a different indictment'. In some circumstances it will be unfair to an accused to give leave to amend a presentment, or to file over a new presentment after the trial has commenced. As the Full Court observed in R v Street: The time at which an application for amendment is made doubtless provides a consideration, to be taken into account in determining whether the power should be exercised, but the weight to be given to such a consideration must necessarily be varied according to the circumstances of the case. [41]Similarly, as McDonald J observed in R v Evans, '[t]he later in a trial that an application is made to amend particulars to an indictment, the higher the chance or likelihood that an amendment will cause an injustice to an accused'. [42]Similarly, where a trial is underway and an accused has mounted a defence based on the charges contained in the original presentment, it will often be unfair for the Crown to change the case against the accused by filing over a new presentment. However, as Lam demonstrates, no injustice may occur where the new presentment is based on the same evidence as the previous indictment. 11In the Supreme Court of New South Wales, Court of Criminal Appeal in James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 (Howie J with whom Sully and Simpson JJ agreed), observed at [23], [25]: [23]... A miscarriage of justice will be shown where the amendment resulted in an unfair trial, whether that unfairness was a result of tactical decisions made by defence counsel based upon the wording of the charge or otherwise. ... [25]Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused. Consideration 12The prosecutor seeks to alter the charge from one that relates to a single day, namely 7 July 2006, to a continuing offence over a period from 30 June 2006 to 7 July 2006. As I have already noted, the amendment was sought on the fifth day of a summary trial which was fixed for eight days. 13In summary, the defendant opposes the amendment on two grounds. Firstly, that no risk to the health and safety of non-employees arose prior to 7 July 2006. Secondly, applying the principles in Pollard to the circumstances of this matter, the court would find an unfairness and injustice would occur if the amendment was granted. First ground 14The defendant submitted that in order for the prosecutor to make good his contention that this offence should be a continuing offence, it must be, as was stated in R v Industrial Appeals Court; ex parte Barelli's Bakeries Pty Ltd (1965) VR 615 at 623, which was cited in WorkCover Authority (NSW) (Inspector Forster) v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161; (2003) 158 IR 163 at [19] "an offence constituted by a continuing breach of a duty to take action to put an end to a forbidden state of affairs". These authorities respectively at [620] and [19] observed the question "whether an offence is of a continuing nature, ... is solved by ascertaining what is the precise nature of the offence." This requires an examination of the application for order. 15The defendant contended the application for order stated at particular 6 that "Blue Water Scaffolding purported to have completed the erection of the scaffolding on 7 July 2006 and provided the scaffolding handover certificate". 16The risk, as particularised, was said to be that "non-employees" were at risk of either falling through the scaffolding or otherwise being struck by items falling from the structure. This risk, on the evidence already heard, could not have arisen before the handover of the completed scaffold by Blue Water Scaffolding Pty Ltd on 7 July 2006. In other words, on the prosecutor's case to date, there was no risk until 7 July 2006 when non-employees mounted the structure for the first time to install the mega bolts in the roof of the mine. 17It was further contended by the defendant that the agreed facts in this matter reflect this position. It followed, so it was submitted, that it was not until 7 July 2006 that the scaffold was to be put into use by employees not in the employ of the defendant (noting that the charge was laid under s 8(2) of the OHS Act). 18To date, it has not been the position of the prosecutor that the defendant had supplied scaffolding for use at the mine to be used on or before 7 July 2006. The evidence is that the scaffold ceased to be used by anyone in the aftermath of the incident on 7 July 2006. 19In answer to this contention, the prosecutor relied upon the observations of the Supreme Court of New South Wales, Court of Appeal in Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 205 IR 263 at [67] where Spigelman CJ observed: In my opinion, the word "risks" in s 8(2) also refers to the possibility of danger. The word "exposed" refers to a person who is sufficiently proximate to the source of the risk at the relevant time or times for that risk to possibly impinge upon his or her health or safety. 20In my opinion, the word "risks" as submitted by the defendant and as found in the particulars of the application for order could not have arisen prior to the completion of the erection of the scaffolding on 7 July 2006. 21The evidence to date is that Mr Phillip Louis Halstead, the Mine Deputy for the Douglas Mine in June/July 2006, attended the area where the scaffolding had been erected at 9.00am on 30 June 2006. His evidence was he observed workmen helping the scaffolders prepare the scaffolding site. He introduced himself to them and undertook a general inspection of the area with respect to gas, ventilation, and roof. He also assessed the safety of the roof at the scaffold site in the mine. He made a note in his diary "Douglas 22 at 9.30am". He did not believe that he actually checked the scaffolding in any way on that day. He recalled again inspecting the scaffold on 7 July 2006. His evidence was that he went to the ladder at the scaffolding, had a general look and satisfied himself that it was secure. He climbed the ladder and found that the ladder was not tied off so he descended and "found a bit of rope and secured the ladder to the platform". He walked on the platform and looked how it had been secured, looked at the railings and touched the railings. He noticed there was a slight movement, however he concluded that everything seemed okay. He subsequently returned to the floor of the mine and spoke to the workers and some of them accompanied him up the ladder to carry out an inspection. He recalled they identified that kickboards were not in place. This was the only matter raised. He then returned and asked the scaffolders if everything was okay, to which they said "yep, everything's fine". His evidence was that he had no expertise in inspecting scaffolding. 22Particular (c) alleges the defendant failed to ensure there was a proper inspection of the scaffolding after its erection and prior to its use. Particular (d) alleged a failure to ensure there was a properly completed handover certificate. 23These are the measures which must be linked to the charge which relate to 7 July 2006. This was when the manifestation of the alleged risk occurred. 24The defendant submitted that it was against this background that it entered into an agreement regarding certain facts, including in relation to 30 June 2006. However, the defendant submitted that this was not because the defendant always knew, as was contended by the prosecutor, that the events of 30 June 2006 formed part of the prosecutor's case. Rather, it was because the defendant assessed the charge and determined what was relevant for the prosecutor to prove and what matters could be short circuited by the defendant by agreeing to certain facts and matters that occurred on 30 June 2006 in the agreed statement of facts. 25The defendant further submitted that certain facts relating to 30 June 2006 were "simply given away to save the court's time to facilitate the issue of the administration of justice". Such agreed facts, if the amendment was granted, will now be admissions on behalf of the defendant and give rise to an incurable prejudice which could only be cured if the defendant was given leave to withdraw certain of the agreed facts. This will most likely result in the proceedings having to start again. 26The defendant also contended that it was under no obligation to agree to any facts. The trial was set down for three weeks initially and the parties, through discussions, set about endeavouring to shorten this period. 27Mr Nagle further submitted that there was a public expectation that defendants not be put in a position where having assisted the court by agreeing to certain facts, they were then disadvantaged because they had adopted a particular course in the overall interests of justice. 28I agree with the defendant's contention that the risk arose when persons were actually working on the scaffold platform on 7 July 2006. If the amendment is granted, it will therefore require the defendant to meet a different charge. 29In the alternative, Mr Strickland relied on a decision of the Full Bench in Newcastle Wallsend Coal Company Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 at [401] where the Full Bench stated: [401]There is nothing untoward in commencing the charge period when the failures to be relied upon commenced - indeed, one could describe it as prudent, if not necessary. We cannot see any basis upon which the appellants should be absolved of liability simply because a risk did not enure for the entire charge period if a continuing failure from 1994 onwards to properly research the location of the old workings (to pick one example of the established failures) caused a risk of inrush on 29 October 1996, as we have found. In this case, the risk was present for the entirety of the nightshift charges; for approximately the last quarter of the systems charges; and for just over the last two weeks of the planning charges which spanned two years and nearly eight months (a length of time which reflects the complexity of planning mining operations). The period of time for which a risk is present may, in an appropriate case, have some bearing on sentencing, but does not, simpliciter, affect liability. There are many crimes in which the essential elements may take place over different periods of time (which may also involve delays, rather than following immediately); ss 124 (Fraudulent appropriation), 165 (Agent misappropriating money entrusted to him or her) and 168 (Fraudulent sale of property by agent) of the Crimes Act 1900 provide some examples. There is no arcane requirement of criminal law that all essential elements of an offence must enure for the entire charge period; if this were so, many fraudulent misappropriations would fall outside prosecution. 30In my view, the prosecutor is not assisted by the Full Bench's observations in this matter as the risk arose upon the erection of the scaffold and after there had been a failure to properly inspect the scaffold prior to its use. In other words, the risk arose when the scaffold was to be used by the mine workers and not earlier. 31As presently pleaded, there was no failure by the defendant prior to 7 July 2006. The prosecutor also refers to "steps taken by Mr De Leeuw and Mr Philip D'Aran on 30 June 2006" as being relevant. However, these two persons, who were employed by the defendant, were not listed in the application for order as persons who were exposed to a risk arising from the defendant's failures. Nor is there any evidence to suggest that those persons were present on the scaffold on any day prior to, or on 7 July 2006. Second ground 32Mr Strickland acknowledged, quite properly, that if I found that there was an irremediable prejudice or unfairness caused to the defendant by the amendment to the application for order, the prosecutor accepted that the notice of motion would be dismissed. 33Senior counsel also conceded that there was no doubt that the application to amend was late, coming in the fifth day of an eight day trial. 34Mr Strickland submitted that I would not find irremediable prejudice or unfairness on two bases. Firstly, this matter was different from a jury trial where the trial was continuing. Counsel noted that even in a jury trial, important changes of dates can occur during the trial, provided there was no unfairness to the defendant. 35In this matter, the conclusion of the trial is fixed for November 2012. Counsel observed if there was any witness that the defendant required to be recalled as a result of the amendment then that would not be opposed by the prosecutor and any issue in respect of costs would be accepted by the prosecutor. 36The second basis upon which Mr Strickland submitted that the amendment would not give rise to irremediable prejudice, was in the way that the case had been conducted or presented to the court. 37Counsel pointed to the opening by the prosecutor and the way that the prosecutor had particularised the case. In summary, the prosecutor's position was that from 17 May 2012 when it forwarded draft agreed facts to the defendant, it was clear that the prosecutor intended to rely on failures on 30 June 2006 and thereafter. The failures included not carrying out a qualitative risk assessment prior to 30 June 2006 and a failure to carry out a proper inspection on 30 June 2006. I note such failures were not part of the charge. 38I have earlier set out the relevant principles as found in Pollard. Applying these principles, when proper weight is given to the circumstances of the time at which the application to amend was made, I find it will result in unfairness and an injustice being caused to the defendant. It was not filed "at an early stage": Pollard at [40]. The defendant has made certain admissions in the agreed statement of facts. If the amendment was granted, it would seek to withdraw its agreement to certain facts, which may result, so the defendant foreshadowed, in an application being made for a new trial. 39The defendant's position is that it was endeavouring to assist the court by agreeing to certain facts and that the defendant will now be forensically disadvantaged irremediably as a result of having taken this course. There are certain matters that fall squarely on 30 June 2006. In order to avoid an injustice, there will be a need to have recalled any witnesses the defendant requires for further cross-examination. This will include witnesses who saw the scaffold prior to 7 July 2006. Such evidence would be focused on the scaffolding not being in use prior to 7 July 2006. I have already referred to the evidence that the scaffold was not in use at any time prior to 7 July 2006, and therefore, whether any risk arose prior to that date. Such a course would result in an unfairness to the defendant. 40Section 21 of the CP Act requires that there will be no injustice visited upon the defendant because of an amendment. I find a clear injustice would arise if the defendant needed to recall witnesses. There is also the possibility of further subpoenas being issued to four other defendant companies who have already been sentenced on charges which arose from the same factual circumstances. The defendant would be entitled to seek to obtain material to show that no workers were present on the scaffold before 7 July 2006, apart from those workers who were erecting the scaffold as contrasted to those workers who were carrying out work on the roof of the mine by using the scaffold on 7 July 2006. 41Section 170 of the IR Act, which was relied upon by the prosecutor to make the amendment, requires that the interests of justice be the guiding test with respect to amendments. In light of my findings, s 170 cannot assist the prosecutor. 42For these reasons, I find that the amendment to the application for order will cause injustice and unfairness to the defendant. Leave is refused. Orders 1.The notice of motion is dismissed. 2.I reserve the question of costs. ********** 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: 06 September 2012