Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72

  • Author : Arushan Pillay - 06-10-2011

This case followed on from Kirk Group Holdings.  The facts that gave rise to the case arose from the Lane Cove Tunnel collapse in Sydney.

At the time of that offence the old Occupational Health and Safety Act 1983 NSW had been replaced by the Occupational Health and Safety Act 2000 (NSW).  Relevantly however the charges which were generally used to prosecute defendant employers contained in sections 15 and 16 of the old Act had been substantially reproduced in Section 8 of the new Act.  It was the new Act under which John Holland was charged.

A challenge was made immediately upon the charges being filed.

The charges sought to broadly set out the contraventions alleged under Section 8(1) and (2).  The defendants alleged that this was insufficient given what was said in Kirk.  Particularly the defendant said that the charges themselves must contain all details of the acts or omissions which it was said gave rise to the risk of harm eventuating.

  This was despite the fact that there were extensive and detailed particulars provided for each charge setting out what the acts and omissions giving rise to the allegations were.  The defendants argued that it was not sufficient that this was in the particulars but rather it should have been contained within the charge itself.

The defendants also alleged that it was insufficient where the prosecutor relied on a number of different offences over a number of different days to found a single charge for that not to be listed in the charge itself.  Once again they stated that it was not proper that it be listed in the particulars.

Put shortly the court did not find the defendant’s argument convincing.  It held that there was nothing in Kirk to suggest that all of the acts or omissions had to be put directly into the charge.  Rather they said it was acceptable that they be contained in the particulars.  They said that this complied with the fundamental obligation of the prosecutor to alert the accused to the way in which the charges were put against them and to be able to meet those charges.

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Arushan Pillay

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