Critchley v Schlumberger Oilfield Australia Pty Ltd [2016] QDC 338

DISTRICT COURT OF QUEENSLAND CITATION: Critchley v Schlumberger Oilfield Australia Pty Ltd [2016] QDC 338 PARTIES: SIMON JOHN CRITCHLEY (appellant) v SCHLUMBERGER OILFIELD AUSTRALIA PTY LTD (respondent) FILE NO/S: D6/16 DIVISION: Civil PROCEEDING: Appeal ORIGINATING COURT: District Court at Toowoomba DELIVERED ON: 16 December 2016 DELIVERED AT: Brisbane HEARING DATE: 22 August 2016 JUDGE: Richards DCJ ORDER: The appeal is allowed. The order of the magistrate is set aside. The matter is remitted back to the Magistrate’s Court for further hearing. The respondent is ordered to pay the appellant’s costs of this appeal and the original application that was heard in the Magistrate’s Court to be assessed unless otherwise agreed CATCHWORDS: MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – GENERALLY – where complaint and summons were made to prosecute offences under the Radiation Safety Act 1999 (Qld) – where the Magistrate struck out the complaint for failure to disclose an offence known to law – whether the complaints were properly and sufficiently pleaded – if not, whether the complaints were capable of amendment Justices Act 1886 (Qld) Radiation Safety Act 1999 (Qld) Beer v McCann [1993] 1 Qd R 25 Broome v Chenoweth (1946) 73 CLR 583 at [601] Director of Public Prosecutions (DPP) (Vic) v Kypri (2011) 33 VR 157 -- 1 of 10 -- 2 Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 John L Pty Ltd v Attorney-General (NSW) [1987] 163 CLR 508 Karimbla Construction Services Pty Ltd v President of Industrial Court (Qld) [2014] QSC 56 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 COUNSEL: Mr P Davis QC and Mr R Byrnes for the appellant Ms K Mellifont QC for the respondent SOLICITORS: MinterEllison for the appellant Ashurst Australia for the respondent [1] The respondent was charged by way of complaint and summons issued under the Justices Act 1886 (Qld) with two counts of having breached the Radiation Safety Act 1999 (Qld). The respondent applied before the Magistrates Court to have the complaint struck out on the basis that it did not disclose an offence known to law. That application was successful and the complaint was struck out. The appellant appeals that decision. Whilst there are a number of grounds of appeal in this matter, essentially the two issues in the appeal are firstly whether the charges were properly and sufficiently pleaded and secondly, if they were not sufficiently pleaded, whether the charges were capable of amendment under s 48 of the Justices Act 1886 at the hearing of the charge. [2] Section 47 of the Justices Act 1886 provides: “47 What is sufficient description of offence (1) The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.” [3] Section 43 of the Radiation Safety Act 1999 creates a number of different offences where a possession licensee under a licence possesses a radiation source for a radiation practice. Charge one is said to be an offence under s 43(2) of the Act and charge two is said to be an offence under s 43(4) of the Act: “43 Additional obligations of possession licensees -- 2 of 10 -- 3 (1) This section applies if a possession licensee, under the licence, possesses a radiation source for a radiation practice. (2) The licensee must take reasonable steps to ensure that neither of the following is adversely affected by exposure to radiation because of the carrying out of the practice with the source— (a) the health or safety of any person; (b) the environment. Maximum penalty—500 penalty units. (3) Without limiting the ways in which a possession licensee may comply with subsection (2), a possession licensee is taken to comply with subsection (2) if at the relevant time— (a) the source complies with the relevant radiation safety standard; and (b) if the practice is being carried out at premises—the premises comply with the relevant radiation safety standard; and (c) the licensee is complying with the licensee’s approved radiation safety and protection plan for the practice. (4) Also, the licensee must take reasonable steps to ensure another person does not use the source unless the person is allowed to do so under a use licence or otherwise under this Act. Maximum penalty – 500 penalty units.” [4] The complaints laid are worded as follows: “Count one On 28 February 2014 at the corner of Church Road and Montrose Road, Montrose Chinchilla, within the Magistrates Court district of Dalby in the said state, one Schlumberger Oilfield Australia Pty Ltd (“SOAPL”) did, by its representative Victor Mokaya, fail to take reasonable steps to ensure that the health and safety of any person was not adversely affected by exposure to radiation because of the carrying out of a radiation practice within a radiation source, contrary to s 43(2) of the Radiation Safety Act 1999. Particulars 1. The radiation sourced was caesium–137. 2. The radiation practice was borehole logging. 3. The reasonable steps that ought to have been taken, but was not taken, was to ensure that the radiation source was: (a) returned to the shield; and (b) not left on the rig floor. 4. The person whose health and safety was adversely affected by exposure to radiation was Christopher Mark Thomas. -- 3 of 10 -- 4 5. The adverse effect on the health and safety of that person was that: (a) approximately a week after 28 February 2014, he suffered hair loss on his lower left leg; (b) approximately eight days after he developed a rash which then became an area of ulceration with associated swelling. Count two On 28 February 2014 at the corner of Church Road and Montrose Road, Montrose Chinchilla, within the Magistrates Court district of Dalby in the said state, one SOAPL did fail to take reasonable steps to ensure one Victor Mokaya did not use a radiation source unless that person was allowed to do so under a use licence or otherwise under the Radiation Safety Act 1999 contrary to s 43(4) of the Radiation Safety Act 1999. Particulars 1. The radiation sourced was caesium–137. 2. The said Victor Mokaya did not use the source: (a) in the presence, or under the personal supervision, of a use licensee who was allowed, under a licence, to use the source to carry out a radiation practice; or (b) for the purpose of helping a licensee to carry out a prescribed radiation practice. 3. The reasonable step that ought to have been taken, but was not taken, was to require the said Victor Mokaya to produce a use licence before using the source.” [5] The argument which succeeded at first instance was that the legal elements of the statutory offence were not complete in each of the charges in that each of the elements of the offence were not pleaded. In that regard, the appellant relied on John L Pty Ltd v Attorney-General (NSW)1: “The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: ‘an accused person could not be required to defend the charge if the information did not supply the 1 [1987] 163 CLR 508 at 519. -- 4 of 10 -- 5 particulars necessary to enable him to prepare his defence” (Ex parte Lovell ; Re Buckley (1938) 38 SR(NSW) 153 at 166 ).’” [6] It was argued at first instance, successfully, that the legal elements of the statutory offence under s 43(2) and s 43(4) of the Radiation Safety Act 1999 include the overarching requirement in s 43(1) that a person charged is: (a) a possession licensee (b) who possesses a radiation source under a possession license (c) for a radiation practice. It is accepted that these things were not pleaded in count one or count two of the charges. It is not disputed that those matters must be proven. What is disputed is whether they need to be pleaded. [7] The learned magistrate found that the matters mentioned above and prescribed by s 43(1) of the Radiation Safety Act 1999, were essential ingredients which needed to be pleaded and that a failure to plead those ingredients meant that the charges were ones that were not known to law and that they were therefore rendered a nullity. She held further that there was ambiguity in charge two, by the phrase “that person”. [8] The appellant maintains that the charge, to be valid, need not allege every fact which the prosecution may at trial have to prove, even if those facts were essential in the sense that without proof of them the prosecution would fail. [9] In Kirk v Industrial Court (NSW the High Court held2: “In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, ‘must at the least condescend to identifying the essential factual ingredients of the actual offence.’3 These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller (1937) 59 CLR 467 at 468, Dixon J considered that an information must specify ‘the time, place and manner of the defendant’s acts or omissions.’ 2 (2010) 239 CLR 531 at [26] 3 John L Pty Ltd v Attorney-General (NSW) [1987] 163 CLR 508 at 520. -- 5 of 10 -- 6 [10] McTiernan J referred to the requirements of ‘fair information and reasonable particularity as to the nature of the offence charged.’”4 [11] The appellant maintains that facts preliminary to the relevant act or omission constituting the offence are not usually essential ingredients which need to be alleged in that charge. This is contrasted with those situations where a particular fact is necessary to be alleged to establish which of a number of potential breaches of the statute is found. The respondent says in this case there is only one class of person who can be charged under s 43 of the Act, and that is a licensee who possesses a radiation source for a radiation practice. In those circumstances, it is not necessary to identify the particular license, radiation source or radiation practice. [12] The appellant also relies on the fact that the sections of the Radiation Safety Act 1999 that have been breached are pleaded in the charge. The appellant maintains that the particulars and the wording of the charge leave the respondent in no doubt as to the nature of the charge and the particulars of the breach. Similarly with charge two, the reference to “that person” is clearly, the respondent says, a reference to Mokaya as there is no other sensible reading of that charge. I note for the purposes of this argument that the wording of the charges if that is the case should have included reference to s43(1) of the Act as well. [13] The respondent maintains that the matters raised in s43(1) are essential elements of the offence and must be pleaded. There is no offence if the person being charged is not a possession licensee possessing a radiation source for a radiation practice. I agree. The possession of the necessary license and the breach of the obligations created by the licence are clearly the essential elements of the offence and should have been pleaded. [14] The respondent then submits that it follows that the complaints are a nullity and incapable of amendment. It is accepted that at common law a complaint that omits an element is a nullity but the appellant argues that the position is different where statute has created an ability to amend, particularly where one has regard to the wording of s48 of the Justices Act 1886. The power to amend the complaint 4 Johnson v Miller (1937) 59 CLR 467 at 501. -- 6 of 10 -- 7 [15] Section 48 of the Justices Act 1886 provides: “(1) If at the hearing of a complaint, it appears to the justices that— (a) there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or (b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or (c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof; then— (d) if an objection is taken for any such defect or variance—the justices shall; or (e) if no such objection is taken—the justices may; make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.” [16] The magistrate clearly knew that the power of amendment of the complaints could only be made at the hearing of the complaint. This argument was made before the hearing of the complaint as a preliminary issue. However, having found that there was no offence known to law as pleaded and that the charges were a nullity, the magistrate found that there was a limitation issue and as such no amendment could be made that would defeat the limitation period within which the charges could be laid. The appellant seeks to distinguish between cases where a number of different acts are apparent in the section and one where it is apparent from the section that there is only one offence. In those circumstances it is said that the charge can be amended because the statute law which allows amendment in substance, the appellant says, changes what might be at common law a nullity. An illustration of this is Beer v McCann [1993] 1 Qd R 25. In that case the charge, under s 722 of the Firearms and Offensive Weapons Act 1979, was defective in that it was pleaded that the occupier was likely to be affected by the acts that were done rather than the private property likely to be affected thereby. His Honour Justice Derrington found:5 “The charge was therefore defective and it is true to say that there was no offence known in the terms charged. However, the offence being alleged was unmistakable and was specifically identified by reference to the section in an annotation at the top of the complaint. The section creates only one offence. In these circumstances, the magistrate was under a duty pursuant to s 48 of the Justices Act to amend the complaint.” 5 Beer v McCann [1993] 1 Qd R 25 at 27 -- 7 of 10 -- 8 [17] So much is hinted at in the obiter of Dixon J in Broome v Chenoweth6: “An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment. It is, perhaps, enough to say that I think that the earlier information in the present case, although defective, was not outside the power of amendment conferred by s 239(1).” [18] This is a case where it is clear from the particulars and the complaints that the complaints were being laid under s 42(2) and 43(4) of the Radiation Safety Act 1999. The particulars identify the act that is alleged in each case and, in my view, although the charges should allege that the offender was a possession licensee under a license possessing a radiation source for a radiation practice, it is nonetheless clear what the allegations are and the substance of the allegations. The defence can be in no doubt, in my view, from the complaint laid as to the nature of the complaint given that the section applies only to a possession licensee where that possession licensee possesses a radiation source for a radiation practice. [19] In Harrison v President of the Industrial Court of Queensland & Ors7, Jackson J undertook a detailed analysis of the jurisdictional errors in the Industrial Court but also whether complaints are nullities and incapable of amendment under s 48 of the Justices Act. Although the judgement concentrated on the interplay between s 43 of the Justices Act and s 48 power of amendment, it also informs the operation of s 48 generally and notes that s 48 has a long reach because it extends to a defect not only in form but in substance. Justice Jackson noted8: “The distinction between a proceeding that is a nullity and one that is not is nowadays made more rarely than in earlier times, perhaps corresponding to the increasing recognition that the question must often be asked by reference to the particular context or purpose. Like the difference between ‘void’ and ‘voidable’ the difference between a proceeding that is a ‘nullity’ and one that is an ‘irregularity’ is not always easily identified.” 6 (1946) 73 CLR 583 at 601 7 [2016] QCA 89 8 Ibid, at [108]-[109] -- 8 of 10 -- 9 [20] Further he notes9: “For example, the discussion as to the operation of s 43 set out above shows that a complaint that is defective because of non-compliance with s 43 is not a nullity. The same is true of some other defects that fall within s 48. Even a failure to allege a necessary element of an offence may be amended under s 48, subject to the applicable principles.” [21] His Honour, in outlining the width of s 48, outlined three matters10: “It is necessary to turn to the width of the power to amend the complaint under s 48. I have previously mentioned the reach of the express power to amend a ‘defect in substance or form’. Quite apart from the implied power to strike-out any parts of the complaint to remove duplicity, the power to amend under s 48 is informed by three relevant principles. First, ‘it is a fundamental principle of the criminal law that an indictment must…disclose an offence that is punishable in law’: Doja v R (2009) 198 A Crim R 349 at 352 at [3]. Second, a relevant function of an indictment or complaint and summons is to confer jurisdiction upon the court: John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 519. Third, a complaint under the Justices Act 1886 (Qld) in any case of a simple offence or breach of duty must be made within one year from the time when the matter of complaint arose: Justices Act 1886 (Qld), s 52(1).” [22] His Honour endorses the principles in the Director of Public Prosecutions (DPP) (Vic) v Kypri (2011) 33 VR 157. In this case, Nettle JA noted in this regard11: “A charge which lacks an essential element of the alleged offence is defective and, at common law, may be described as a nullity. If, however, the true nature of the offence is apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission, the charge may be amended under s 50 (even out of time) to include the missing element; on the basis that such an amendment does no more than clarify what is already apparent from the face of the charge.” [23] Similarly in Karimbla Construction Services Pty Ltd v President of Industrial Court (Qld) [2014] QSC 56, Jackson J endorsed the scope of s 48 of the Justices Act as allowing amendment where there was failure to allege particulars of the relevant acts or omissions constituting the offence. [24] In my view in this case it is clear from the complaint that the defendant was properly informed, however, it is defectively pleaded because it does not allege the matters in s 43(1) of the Radiation Safety Act 1999. However, it is capable of amendment under 9 Ibid, at [114] 10 Above n 7, [144] 11 Director of Public Prosecutions (DPP) (Vic) v Kypri (2011) 33 VR 157, [24] -- 9 of 10 -- 10 s 48 of the Justices Act 1886 at the hearing of the complaints should the magistrate decide to exercise his discretion in favour of the complainant. This is so even though the time limitation period has now expired, because the amendment is not establishing a new offence. [25] Accordingly, the appeal is allowed. The order of the magistrate is set aside. The matter is remitted back to the Magistrate’s Court for further hearing. The respondent is ordered to pay the appellant’s costs of this appeal and the original application that was heard in the Magistrate’s Court to be assessed unless otherwise agreed. -- 10 of 10 --