Downer EDI Works Pty Ltd v The Queen

[2017] VSCA 27

Victorian Court of Appeal

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Catchwords

1. Criminal Law
2. › Appeal
3. › Interlocutory appeal
4. › Review of refusal to certify for interlocutory appeal
5. › Whether charge valid
6. › Whether particulars of necessity required
7. › Criminal Procedure Act 2009 (Vic), ss 295, 296, sch 1
1. Criminal Law
2. › Occupational health and safety
3. › Employer's duty
4. › Failure to provide necessary instruction and training
5. › Whether charge under s 21(2)(e) correctly drawn
6. › Whether reasonable practicability qualification applies to s 21(2)(e)
7. › Occupational Health and Safety Act 2004 (Vic), ss 21(1), 21(2)(e)
1. Criminal Law
2. › Indictment and charges
3. › Sufficiency of particulars
4. › Whether particulars of 'necessity' required for charge under s 21(2)(e)
5. › Whether charge must specify why instruction and training was necessary
6. › Criminal Procedure Act 2009 (Vic), sch 1, cl 1(b)
1. Criminal Law
2. › Trial
3. › Practice and procedure
4. › Obligation to raise questions of law before trial
5. › Whether defence may defer challenge to validity of charge until after close of Crown case
6. › Criminal Procedure Act 2009 (Vic), ss 199, 200

Quick Take

A charge under s 21(2)(e) of the Occupational Health and Safety Act 2004 (Vic) need only identify the instruction and training the employer allegedly failed to provide; it need not particularise why that instruction and training was 'necessary'. The determination of necessity turns on workplace risks, not the knowledge or experience of individual employees. Defence challenges to the legal validity of charges that do not depend on the evidence must be raised before trial under ss 199-200 of the Criminal Procedure Act 2009 (Vic), and the practice of deferring such challenges until after the close of the Crown case must cease.