Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Attorney General of New South Wales v Air Conditioning Engineering Services Pty Ltd [2013] NSWCCA 300 Hearing dates: 20 June 2013 Decision date: 02 December 2013 Before: Bathurst CJ at [1]; Beazley P at [21]; Hoeben CJ at CL at [22] Decision: 1. Appeal dismissed. Catchwords: INDUSTRIAL LAW - criminal procedure - prosecution under the Occupational Health and Safety Act 2000 - requirement that proceedings be instituted by persons including inspector - whether inspector in fact instituted prosecutions. INDUSTRIAL LAW - criminal procedure -Criminal Procedure Act 1986 s 246 - District Court Rules 1973 Pt 53 r 26 - whether application and statement of facts are required to be signed by the inspector. INDUSTRIAL LAW - criminal procedure - failure to correctly institute proceedings - whether Criminal Procedure Act s 16(2) can operate to validate proceedings. INDUSTRIAL LAW - criminal procedure - Occupational Health and Safety Act 2000 - failure to particularise - whether charges disclose offence known to law - whether charges can be saved or amended. JURISIDICTION - appeal - Criminal Appeal Act 1912 s 5C - notice of contention - whether Court of Criminal Appeal has power to consider issues in notice of contention. Legislation Cited: Criminal Appeal Act 1912, s 5C Criminal Procedure Act 1986, ss 3, 16, 246 District Court Rules 1973, Pt 53 r 26 Occupational Health and Safety Act 2000, s 8 Cases Cited: Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 Category: Principal judgment Parties: Attorney General of New South Wales (Appellant) Air Conditioning Engineering Services Pty Ltd (Respondent) Representation: Counsel: J V Agius SC, B G Docking and D B O'Neil (on behalf of the Attorney General of New South Wales) I Taylor SC and S Boland (Respondent) Solicitors: WorkCover Authority of NSW (Attorney General of New South Wales) Ashurst Australia (Respondent) File Number(s): 2012/172568 2012/171845 Publication restriction: No Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-11-29 00:00:00 Before: Curtis DCJ File Number(s): 2012/172568 2012/171845 Judgment 1BATHURST CJ: This is an appeal brought by the Attorney General of New South Wales (the Attorney) pursuant to s 5C of the Criminal Appeal Act 1912 against an order made by Curtis DCJ (the primary judge) dismissing two summonses brought against the respondent, Air Conditioning Engineering Services Pty Ltd (ACE), alleging contraventions of s 8(2) of the Occupational Health and Safety Act 2000 (OH&S Act). 2The appeal was heard at the same time as the appeal by the Attorney against similar orders of the primary judge in respect of which judgment has been delivered today: Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 (the Built proceedings). 3On 25 May 2012 Blanch J (Chief Judge of the District Court of New South Wales) granted applications under s 246 of the Criminal Procedure Act 1986 (CPA) and made orders that ACE appear to answer the charges. The prosecutor was named as Inspector Melinda Walsh. However, the applications and the statements of facts were signed by David Hall, who was described in the same way as he was described in the applications and statements of facts in respect of the similar offences alleged against Built NSW Pty Ltd. I have referred to the manner in which Mr Hall was described in my judgment in the Built proceedings. 4The first summons described the offence in the following terms: "Air Conditioning Engineering Services Pty Limited [ACN 122 466 693] a corporation with its registered office situated at 10 Bridge Road, Stanmore in the State of New South Wales ('the defendant'), being an employer, on 27 May 2010, at 401-411 Sussex Street, Haymarket in the State of New South Wales ('the site') failed by its acts and/or omissions particularised in Annexure A (attached) to ensure the health, safety and welfare at work of persons other than its employees, and in particular Dean Pulver contrary to section 8(2) of the Occupational Health and Safety Act 2000." The second summons was in the same terms apart from naming different individuals, Mr Jamie Zonno and Mr Joshua Jiminez, in relation to the alleged contravention. 5By notice of motion filed in the District Court on 14 September 2012, ACE sought orders quashing the application to commence proceedings and dismissing the summons. The grounds relied on were generally the same as those relied on by Built NSW Pty Ltd in its application. 6The primary judge dismissed each summons for the reasons given by him in the Built proceedings. 7The Attorney has appealed from this judgment pursuant to s 5C of the Criminal Appeal Act 1912. 8The grounds of appeal raised by the Attorney in this appeal are the same as those raised by him in the Built proceedings. In addition, ACE has filed what is described as a notice of contention in the same form as that filed by Built NSW Pty Ltd in the Built proceedings. 9I have set out the legislative background and summarised the judgment of the primary judge in my judgment in the Built proceedings. The submissions of the parties (a) The Attorney 10The Attorney made the same submissions as were made by him in the Build proceedings. (b) ACE 11ACE adopted the written and oral submissions made by Built NSW Pty Ltd in the Build proceedings. It submitted that the proceedings were not instituted by a person authorised to do so and submitted that each summons was void, first, on the basis that the applications and statements of facts did not comply with s 246(2) of the CPA and Pt 53 r 26 of the District Court Rules 1973 and, second, because they did not allege any offence known to law. 12ACE pointed out that in her affidavit sworn 21 September 2012, Inspector Walsh did not state that she had determined to institute proceedings alleging the particular offences charged, nor that she had instructed Mr Hall to make the applications, had approved them or was even aware that Mr Hall would make them. 13ACE submitted that the significant responsibility to issue proceedings was only given to certain persons, including an inspector. It pointed to the significant penalties which could result from conviction for offences under the OH&S Act. It submitted that the legislation did not authorise a person other than an inspector to lay the charges. 14ACE also submitted the failure of Inspector Walsh to sign the application resulted in it not being in the approved form. It submitted that the rules did not adopt the extended definition of prosecutor in s 3 of the CPA. It submitted that the non-compliance with s 246(2) of the CPA and r 26 of the District Court Rules constituted a direct route to the proposition that the Court had no jurisdiction to determine the proceedings: John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 at [46]-[47]. 15Senior counsel for ACE submitted that the onus was on the prosecutor to prove that the proceedings were authorised by Inspector Walsh and that it failed to do so. He submitted that even if the affidavit of Inspector Walsh had shown that the prosecutor had presented Mr Hall with the facts and requested him to lay charges, that would not be sufficient. However, he emphasised that the evidence did not go so far. 16Senior counsel for ACE submitted that the conclusion that non-compliance with the requirement in the rules that the applications be signed by the prosecutor led to invalidity was consistent with the need to identify the persons responsible for bringing the charges given their serious nature. Consideration (a) The appeal 17The issues raised in the appeal are identical to those in the Built proceedings. For the reasons given in those proceedings, the appeal should be dismissed. (b) The notice of contention 18The first summons in this case and the particulars thereto were in the following terms: "Description of Offence: Air Conditioning Engineering Services Pty Limited [ACN 122 466 693] a corporation with its registered office situated at 10 Bridge Road, Stanmore in the State of New South Wales ('the defendant'), being an employer, on 27 May 2010, at 401-411 Sussex Street, Haymarket in the State of New South Wales ('the site') failed by its acts and/or omissions particularised in Annexure A (attached) to ensure the health, safety and welfare at work of persons other than its employees, and in particular Dean Pulver contrary to section 8(2) of the Occupational Health and Safety Act 2000. Date of Offence: 27 May 2010 Place of Offence: 401-411 Sussex Street, Haymarket NSW 2000 Particulars (including, where applicable, the act or omission said to constitute the breach, and the risk relied upon): Attached as 'Annexure A' Statutory Provision Describing Offence: Section 8(2) Occupational Health and Safety Act 2000. Law Part Code: 42014 'Annexure A'(Particulars regarding DEAN PULVER) (1) The Defendant was at all material times an employer. (2) The Defendant's place of work was the site. (3) The Defendant's undertaking at the site included the procurement, manufacture, supply, delivery and installation of materials which included air handling units, air conditioning units, cooling towers, refrigeration machines, fans and motors. (4) Dean Pulver was not an employee of the Defendant. (5) Due to the Defendant's failings as particularised below, Dean Pulver was placed at risk of falling from height. (6) In particular, Mr Pulver was exposed to the risk of: (a) falling from a work area on top of the lift/fire stair over run on level 8 of the site referred to as the 'lift lid'; (b) falling from a stepladder situated on top of the lift lid whilst placing a lifting strap around an overhead metal girder. (7) The particulars of the acts or omissions of the Defendant are: AI The Defendant failed to ensure the lift lid was made safe by secure perimeter screens, fencing, handrails or other forms of physical barriers that were capable of preventing Mr Pulver being placed at risk of falling from the lift lid; A2 The Defendant failed to ensure Bravo Industries Pty Limited provided to Built NSW Pty Limited a safe work method statement which specifically addressed working from the top of the lift lid; A3 The Defendant failed to ensure that Dean Pulver was inducted into a safe work method statement applicable to working on top of the lift lid; B1 The Defendant failed to ensure that Bravo Industries provided a safe work method statement which specifically addressed the task of moving equipment onto the lift lid; B2 The Defendant failed to ensure that Dean Pulver was inducted into a safe work method statement applicable to the task of moving equipment onto the lift lid; C1 The Defendant failed to provide any supervision of Bravo Payroll employees on 27 May 2010. (8) As a result of the failures set out in A and C Dean Pulver was placed at risk of injury. (9) As a result of the failures set out in B and C Dean Pulver was placed at risk of injury and sustained injuries as a result of a fall, which fall was a manifestation of the fall risk." The second summons and particulars attached as Annexure A were in similar terms in relation to different individuals, Mr Zonno and Mr Jiminez. 19Although the factual particulars are different to those in the Built proceedings, the charges suffer from the same deficiency as identified in my judgment in those proceedings. It follows that they do not disclose any offence known to law and the defects are not ones to which s 16(2) of the CPA would apply. The summonses were liable to be set aside on this ground as well as the grounds identified by the primary judge. Conclusion 20The appeal should be dismissed. 21BEAZLEY P: I agree with Bathurst CJ. 22HOEBEN CJ at CL: I agree with Bathurst CJ. ********** 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: 03 December 2013