CRIMINAL PROCEDURE — Stay of proceedings — Permanent — Whether prosecutor's pleaded case identifies measures alleged to be "reasonably practicable" within the meaning of s 18 of the Work Health and Safety Act 2011 (NSW) — Distinction between particulars and evidence or inferences drawn from evidence — Whether continuation of the proceedings would result in an unfair trial — Motion dismissed
CRIMINAL PROCEDURE — Stay of proceedings — Temporary stay — Application for further and better particulars — Whether defendant entitled to further and better particulars of how the prosecutor will seek to prove an essential element of the offence — Where prior response to request for further and better particulars sufficiently reveals boundaries of the case the defendant must meet at trial — Motion dismissed — Prosecution directed to provide amended particulars
Quick Take
1A prosecutor's admitted inability to specify the precise cost and timing of a pleaded reasonably practicable measure under s 18 of the WHS Act 2011 (NSW) does not necessarily warrant a permanent stay; following JBS Australia, the balancing exercise may be undertaken in the absence of direct cost evidence where the defendant's post-incident conduct provides a sufficient factual basis for inferring the measure was reasonably practicable.
2The distinction between particulars necessary to identify the essential factual ingredients of a WHS offence (as required by Kirk) and the broader particulars a defendant may seek for trial preparation must be maintained; a request for particulars of 'how the prosecutor will seek to prove' an element is in substance a request for a treatise of the evidence or inferences, not for identification of the acts or omissions founding the charge.
3Defendants in criminal proceedings before the Industrial Court are expected to seek particulars during the case management process well before trial; while the right to a fair trial prevails, a failure to seek particulars until after the prosecutor's opening on the first day of trial is to be deprecated and may have costs consequences.
