The majority held that the distinction between 'essential legal elements' and 'essential factual particulars' should not be treated as determinative of whether a defective charge can be saved by s 16(2) of the Criminal Procedure Act 1986; rather, the appropriate classification of defects should be considered on a principled basis, asking whether the defect is capable of remedy. A charge under s 10(2) of the OH&S Act 2000 that omits reference to s 10(3)(d) ('in the course of a trade, business or other undertaking') is not necessarily invalid where the factual particulars are ascertainable from other elements of the charge and supporting materials. The Court also confirmed that a court to which a question of law is stated under s 5AE of the Criminal Appeal Act 1912 may not determine questions of fact or investigate the evidence for itself.
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