N.K. Collins Industries Pty Ltd and Peter Vincent Twigg
This is a decision of the Industrial Court of Queensland comprised of President Hall given on 27 April 2010.
It was an Occupational Health and Safety prosecution pursuant to the Workplace Health and Safety Act 1995 (Qld) arising out of an incident on 4 June 2007.
It is difficult to understand the exact nature of the case simply from the decision. It appears that on 4 June 2007 a worker, Jiandong Guo was killed while working harvesting trees to be cut in a sawmill.
The charge was in a very different form to that which you would find in Victoria. It is useful to set it out. Firstly it provides the address of the workplace and then goes on to say:
“The source of the risk emanates from:
- falling dead Cyprus trees and/or
- system of work for the felling of dead Cyprus trees.
Is the risk of death or injury including the risk of crush injuries to Jiandong Guo
AND IT ALLEGED that the breach caused the death of one Jiandong Guo”.
Before the Industrial Magistrates’ Court in Roma the company argued that it had not been given sufficient particulars. The Magistrate declined the application and the case was heard over three days. The company was convicted. The company then appealed to the Industrial Court in this case. The grounds of appeal were first in relation to the assertion that there were insufficient particulars of the charge given and secondly relating to evidentiary matters as to what things the magistrate took into account.
Particularly the company argued that it ought to have been told of what particular measures it had failed to put in place or had put in place but which were defective which had led to the death of Mr Guo.
Ultimately President Hall rejected that contention and argued that the particulars of the offence were sufficient in that they identified all of the legal elements of the offence charged and identified the risk that it was the company’s duty to protect against. He held that if particulars were required to be given as sought by the company it would amount to the prosecution having to anticipate what defence might be put, .