This is a decision given on 26 May 2011.
By way of background, this was an Occupational Health and Safety prosecution arising under the Occupational Health and Safety Act 2000 (NSW). The charges arose out of an incident that occurred on 20 April 2007 at premises owned and occupied by GPI in Villawood. At that time a forklift truck overturned killing its driver. WorkSafe NSW brought prosecutions against the company and also one of its directors.
The indictment was issued two days prior to the two year time limit expressed in Section 107 of the Occupational Health and Safety Act. After the indictment was filed in the Industrial Court the matter came on for hearing. Prior to the matter coming on the prosecutor sought to amend the indictment by adding further particulars. Those particulars were quite extensive.
At the hearing in from of Marks J and Haylen J the defendants made application that;
- The indictment was insufficiently particularised and fell squarely within what the court had said in Kirk. Namely that the particulars did not disclose what act or omission it was said the defendants could have performed or fail to perform that would have alleviated the risk said to have eventuated and caused the death;
- That the attempt to add further particulars to the indictment was in fact an attempt to change the charges against the defendants and as the attempt fell outside two years prescribed by s107 of the Act ought not to be allowed.
The court found that the Criminal Procedure Act NSW specifically allowed the amendment of the particulars. It further found that such amendment did not substantially change the indictment. As such it said the charges were properly particularised as there could be no complaint that after further particularisation proper particulars were provided. As such the first issue arising from the failure to properly particularise did not arise.
The defendants being dissatisfied with that finding appealed to the New South Wales Court of Appeal. That was heard on the 26th of May 2011. The unanimous decision was to uphold the decision of Haylen and Marks JJ below and to find that there had been sufficient particularisation by reason of the amended particulars.