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  4. Thomas v Harrison; Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison - [2017] ICQ 3

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Thomas v Harrison; Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison[2017] ICQ 3

Thomas v Harrison; Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison[2017] ICQ 3

 

INDUSTRIAL COURT OF QUEENSLAND

 

CITATION:

Thomas v Harrison; Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison [2017] ICQ 003

PARTIES:

C/2017/4

CARL DENNIS THOMAS

(appellant)

v

PAUL KEVIN HARRISON

(respondent)

C/2017/5

JACOB JOHN ROBERT KILBY

(appellant)

v

PAUL KEVIN HARRISON

(respondent)

C/2017/6

SAXON ENERGY SERVICES AUSTRALIA PTY LTD

(appellant)

v

PAUL KEVIN HARRISON

(respondent)

PROCEEDING:

Appeal

DELIVERED ON:

11 August 2017

HEARING DATE:

31 May 2017

MEMBER:

Martin J, President

ORDER/S:

1. The order of the Industrial Magistrate made on 13 January 2017 is set aside and, in lieu thereof, it is ordered that:

a) the complaints in the Kilby and Saxon matters be heard together; and

b) the application of the Respondent filed in the Industrial Magistrates Court on 21 November 2016 is otherwise dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – JOINDER – OF DEFENDANTS – JOINT OR SEPARATE TRIAL – GENERALLY – where Mr Thomas and Mr Kilby are employed by Saxon Energy Services Australia Pty Ltd – where Mr Kilby is charged with committing a wilful or reckless act or omission that affects safety pursuant to s 704 of the Petroleum and Gas (Production and Safety) Act 2004 (“P&G Act”) – where Saxon Energy Services Australia Pty Ltd is alleged to be vicariously liable – where Mr Thomas is charged with failing to review a safety management plan pursuant to s 678 of the P&G Act – where the respondent has named all the appellants on a single complaint – where the only factual matter common to each complaint is a circumstance of aggravation – where the Justices Act 1886 provides that a court may order complaints to be heard together where the “matters of complaint” are founded on substantially the same facts – whether the circumstance of aggravation forms a part of “the matter of complaint”

INDUSTRIAL LAW – QUEENSLAND – OFFENCES – PROCEDURE AND EVIDENCE – GENERALLY

LEGISLATION:

Criminal Code 1899 s 561(12)

Industrial Relations Act 2016

Justices Act 1886 s 43A

Petroleum and Gas (Production and Safety) Act 2004 s 678, s 704, s 732

CASES:

Allesch v Maunz (2000) 203 CLR 172

Kingswell v The Queen (1985) 159 CLR 264

R v Russell, Szann and Patterson (No 2) [1965] Qd R 334

Woods v Beattie; ex parte Woods [1995] 1 Qd R 343

APPEARANCES:

A Glynn QC and A Scott for each of the appellants

P Davis QC and M Nicholson for the respondent

  1. [1]
    The respondent has commenced three complaints against Carl Thomas, Jacob Kilby and Saxon Energy Services Australia Pty Ltd respectively. In January 2017, the Industrial Magistrates Court ordered that the three matters be heard together. The appellants do not contest the order so far as it relates to Mr Kilby and Saxon Energy but appeal against the decision so far as it affects Mr Thomas.
  2. [2]
    When the order of the Industrial Magistrates Court was made, the Justices Act 1886 did not have a provision which specifically empowered the Industrial Magistrates Court to make such an order. The order that was made was the subject of an appeal in which it was to have been argued that there was no power to make such an order. But that was overtaken by the amendments made to the Justices Act by the Criminal Law Amendment Act 2017 which, among other things, inserted s 43A into the Justices Act.
  3. [3]
    As this is an appeal by way of rehearing,[1] the court is required to determine the appeal according to the law as it exists at the time of the appeal. In other words, this court can substitute its own decision based on the facts and the law as they stand at the time of the appeal.[2]

Section 43A

  1. [4]
    Section 43A provides:

“43A Court may order particular complaints to be heard together

  1. (1)
    This section applies in relation to a complaint of a simple offence or breach of duty.
  1. (2)
    A court may order that 2 or more complaints against the same defendant be heard together if all the matters of complaint in the complaints are of a kind that could have been joined in 1 complaint under section 43.
  1. (3)
    Also, a court may order that 2 or more complaints against different defendants be heard together if the matters of complaint in the complaints are founded on—
  1. (a)
    substantially the same facts; or
  1. (b)
    facts so closely related that a substantial part of the facts is relevant to all the matters of complaint.”

Issues on appeal

  1. [5]
    The matters which arise under the newly inserted s 43A are whether the matters of complaint in the Thomas matter and the other matters are founded on:
  1. (a)
    substantially the same facts; or
  2. (b)
    facts so closely related that a substantial part of the facts is relevant to all the matters of complaint.

The complaint against Mr Kilby

  1. [6]
    Mr Kilby is charged with contravening s 704 of the Petroleum and Gas (Production and Safety) Act 2004 (“the P&G Act”). That section provides:

“704 Wilful or reckless acts or omissions that affect safety

A person at an operating plant must not wilfully or recklessly do an act or make an omission that might adversely affect the safety of anyone at the plant.

Maximum penalty—500 penalty units”

  1. [7]
    The complaint alleges:

“THE COMPLAINT OF PAUL KEVIN HARRISON of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and the Acting Commissioner for Mine Safety and Health within the meaning of section 73BA of the Coal Mining Safety and Health Act 1999, made this 20th day of June 2014 before the undersigned, a Justice of the Peace for, the said State, who says that on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune on Petroleum Lease 232 in the Dalby Magistrates Court District in the State of Queensland, JACOB JOHN ROBERT KILBY, a person at an operating plant, wilfully or recklessly did an act, namely activated the Iron Roughneck ST-80, that might adversely affect the safety of Gareth Leo DODUNSKI, a person at the plant, in contravention of section 704 of the Petroleum and Gas (Production and Safety) Act 2004,

AND the said act caused the death of Gareth Leo DODUNSKI.

Particulars

That at the place and date above mentioned:

  1. Drill rig #185 was situated on Petroleum Lease 232 at a well with the identification number FV-13-14-9 ( 68430) located approximately 66 kilometres east of Injune in the State of Queensland,
  1. Drill rig #l85 was ‘operating plant’ within the meaning of that term in section 670(2)(a) of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’), in that it was a facility used to produce petroleum,
  1. Drill rig #185 was a facility used to produce petroleum because:

a. it was a facility, in that it was something that makes possible the easier performance of an action;

b. it was used to produce, namely it was used to drill a well to facilitate the recovery of petroleum to ground level from a natural underground reservoir in which it had been contained or from which it was to be extracted; and

c. it was used to produce petroleum within the meaning of that term in section l0(l)(a) of the Act, namely it was used to recover to ground level as described in subsection b, a substance consisting of hydrocarbons that occur naturally in the earth’s crust,

  1. On 23 June 2013, drill rig #185 was operating within the meaning of that term in section 672 of the Act, in that it was drilling a petroleum well,
  1. Jacob John Robert KILBY (‘KILBY’) was employed by Saxon Energy Services Australia Pty Ltd ACN 137 534 993 (‘SAXON’) in the position of Driller, and was acting as a Driller at drill rig #185.
  1. KILBY was a person at the operating plant,
  1. Gareth Leo DODUNSKI (‘DODUNSKI’) was a Floorhand employed by SAXON and was acting as a Floorhand at drill rig #185,
  1. At approximately 3.20 pm, KILBY and DODUNSKI were undertaking tasks at drill rig #185 which included the disassembly of the drill string used by drill rig #185,
  1. DODUNSKI and Daniel Luke MULLINGS were engaged in attaching a dog collar to the drill string as part of the process of disassembling the drill string,
  1. DODUNSKI was located between the drill string and the Iron Rougneck ST-80,
  1. KILBY then activated the Iron Roughneck ST – 80 at drill rig #185,
  1. By activating the Iron Roughneck ST – 80, KILBY wilfully or recklessly did an act that might adversely affect the safety of DODUNSKI at the plant, particulars of which are:

a. KILBY did an act, namely activating the Iron Roughneck ST – 80;

b. Activating the Iron Roughneck ST – 80 might adversely affect the safety of DODUNSKI because DODUNSKI was working on the drill rig floor in close proximity to the forward moving path of the Iron Roughneck ST – 80 and contact with the moving Iron Roughneck ST – 80 was likely to cause injury or death;

c. KILBY acted either wilfully or recklessly in that:

i. he activated the Iron Roughneck ST – 80 knowing that it would travel towards where DODUNSKI had been engaged in a task; and

ii. he activated the Iron Roughneck ST – 80 without seeking or obtaining visual confirmation that DODUNSKI was not in the forward moving path along which the Iron Roughneck ST – 80 would travel;

  1. By wilfully or recklessly activating the Iron Roughneck ST – 80, KILBY contravened section 704 of the Act,
  1. The said contravention by KILBY caused the death of DODUNSKI,

contrary to the Acts in such case made and provided.” (emphasis original)

Complaint against Saxon Energy

  1. [8]
    Saxon Energy is also charged with breaching s 704 of the P&G Act. The complaint alleges:

“THE COMPLAINT OF PAUL KEVIN HARRISON of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and the Acting Commissioner for Mine Safety and Health within the meaning of section 73BA of the Coal Mining Safety and Health Act 1999, made this 20th day of June 2014 before the undersigned, a Justice of the Peace for the said State, who says that on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune on Petroleum Lease 232 in the Dalby Magistrates Court District in the State of Queensland, SAXON ENERGY SERVICES AUSTRALIA PTY LTD ACN 137 534 993, a person at an operating plant, wilfully or recklessly did an act, namely activated the Iron Roughneck ST-80, that might adversely affect the safety of Gareth Leo DODUNSKI, a person at the plant, in contravention of section 704 of the Petroleum and Gas (Production and Safety) Act 2004,

AND the said act caused the death of Gareth Leo DODUNSKI.

Particulars

That at the place and date above mentioned:

  1. Drill rig #185 was situated on Petroleum Lease 232 at a well with the identification number FV-13-14-9 (68430) located approximately 66 kilometres east of Injune in the State of Queensland,
  1. Drill rig #185 was ‘operating plant’ within the meaning of that term in section 670(2)(a) of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’), in that it was a facility used to produce petroleum,
  1. Drill rig #185 was a facility used to produce petroleum because:

a. it was a facility, in that it was something that makes possible the easier performance of an action;

b. it was used to produce, namely it was used to drill a well to facilitate the recovery of petroleum to ground level from a natural underground reservoir in which it had been contained or from which it was to be extracted; and

c. it was used to produce petroleum within the meaning of that term in section 10(1)(a) of the Act, namely it was used to recover to ground level as described in subsection b, a substance consisting of hydrocarbons that occur naturally in the earth’s crust,

  1. On 23 June 2013, drill rig #185 was operating within the meaning of that term in section 672 of the Act, in that it was drilling a petroleum well,
  1. Jacob Robert John KILBY (‘KILBY’) was employed by Saxon Energy Services Australia Pty Ltd ACN 137 534 993 (‘SAXON) in the position of Driller, and was acting as a Driller at drill rig #185,
  1. KILBY was a person at the operating plant,
  1. KILBY was a representative of SAXON at the operating plant within the meaning of that term in section 840 of the Act, in that he was an employee of SAXON,
  1. SAXON, through its representative KILBY, was a person at the operating plant,
  1. Gareth Leo DODUNSKl (‘DODUNSKI’) was a Floorhand employed by SAXON and was acting as a Floorhand at drill rig #185,
  1. At approximately 3.20 pm, KILBY and DODUNSKI were undertaking tasks at drill rig #185 which included the disassembly of the drill string used by drill rig #185,
  1. DODUNSKI and Daniel Luke MULLINGS were engaged in attaching a dog collar to the drill string as part of the process of disassembling the drill string,
  1. DODUNSKI was located between the drill string and the Iron Rougneck ST-80,
  1. KILBY then activated the Iron Roughneck ST – 80 at drill rig #185,
  1. By activating the Iron Roughneck ST – 80, KILBY wilfully or recklessly did an act that might adversely affect the safety of DODUNSKI at the plant, particulars of which are:

a. KILBY did an act, namely activating the Iron Roughneck ST – 80;

b. Activating the Iron Roughneck ST – 80 might adversely affect the safety of DODUNSKI because DODUNSKI was working on the drill rig floor in close proximity to the forward moving path of the Iron Roughneck ST – 80 and contact with the moving Iron Roughneck ST – 80 was likely to cause injury or death;

c. KILBY acted either wilfully or recklessly in that:

i. he activated the Iron Roughneck ST – 80 knowing that it would travel towards where DODUNSKI had been engaged in a task; and

ii. he activated the Iron Roughneck ST – 80 without seeking or obtaining visual confirmation that DODUNSKI was not in the forward moving path along which the Iron Roughneck ST – 80 would travel;

  1. By wilfully or recklessly activating the Iron Roughneck ST – 80, KILBY contravened section 704 of the Act,
  1. KILBY’s conduct in activating the Iron Roughneck ST – 80 was engaged in for SAXON by KILBY within the scope of KILBY’s actual or apparent authority as an employee of SAXON,
  1. Consequently, KILBY’s conduct in so activating the Iron Roughneck ST – 80 is taken to have been engaged in also by SAXON pursuant to section 840 (3) of the Act.,
  1. SAXON thus contravened section 704 of the Act by wilfully or recklessly activating the Iron Roughneck ST – 80,
  1. The said contravention by SAXON caused the death of DODUNSKI,

contrary to the Acts in such case made and provided.” (emphasis original)

Complaint against Mr Thomas

  1. [9]
    Mr Thomas is charged with contravening s 678(1)(b) of the P&G Act. That section provides:

“678 When safety management system must be revised

  1. (1)
    The operator of an operating plant must revise the safety management system for the plant if any of the following make the revision appropriate—
  1. (a)
    the making or amendment of a safety code, safety requirement or a standard;
  1. (b)
    the happening of an event relevant to the plant of which the operator is aware, or ought reasonably to have been aware;

Examples of an event—

a development in technical knowledge or hazard assessment

  1. (c)
    changes or proposed changes to the plant that could result in an increase in the overall risk levels, or a specific risk level, for the plant.

Maximum penalty—1,500 penalty units.

  1. (2)
    In this section—

revise means amend or remake.”

  1. [10]
    The complaint alleges:

“THE COMPLAINT OF PAUL KEVIN HARRISON of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and the Acting Commissioner for Mine Safety and Health within the meaning of section 73BA of the Coal Mining Safety and Health Act 1999, made this 20th day of June 2014 before the undersigned, a Justice of the Peace for the said State, who says that on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune on Petroleum Lease 232 in the Dalby Magistrates Court District in the State of Queensland, CARL DENNIS THOMAS, the operator of an operating plant, failed to revise the safety management plan for the plant when the happening of an event relevant to the plant of which the said CARL DENNIS THOMAS was aware, or ought to have been aware, made the revision appropriate, in contravention of section 678(1)(b) of the Petroleum and Gas (Production and Safety) Act 2004,

AND the said contravention caused the death of Gareth Leo DODUNSKI.

Particulars

That at the place and date above mentioned:

  1. Drill rig #185 was situated on Petroleum Lease 232 at a well with the identification number FV-13-14-9 (68430) located approximately 66 kilometres east of Injune in the State of Queensland,
  1. Drill rig #185 was ‘operating plant’ within the meaning of that term in section 670(2)(a) of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’), in that it was a facility used to produce petroleum,
  1. Drill rig #185 was a facility used to produce petroleum because:

a. it was a facility, in that it was something that makes possible the easier performance of an action;

b. it was used to produce, namely it was used to drill a well to facilitate the recovery of petroleum to ground level from a natural underground reservoir in which it had been contained or from which it was to be extracted; and

c. it was used to produce petroleum within the meaning of that term in section 10(1)(a) of the Act, namely it was used to recover to ground level as described in subsection b, a substance consisting of hydrocarbons that occur naturally in the earth’s crust,

  1. On 23 June 2013, drill rig #185 was operating within the meaning of that term in section 672 of the Act, in that it was drilling a petroleum well,
  1. At all material times Carl Dennis THOMAS (‘THOMAS’) was the operator of the operating plant, drill rig #l85, within the meaning of that term in the Act;
  1. At all material times there was in force for drill rig #185 a safety management plan within the meaning of that term in section 674 and Schedule2 of the Act (‘the SMP’),
  1. The SMP consisted of the document entitled ‘Rig 185 Safety and Environmental Management Plan’ dated 20 August 2012 and the document entitled ‘Safety and Environmental Management Plan SES Drilling Rigs (Santos CSQ)’ dated 20 August 2012 and associated documents, including Work Instructions and Job Safety Analyses, that made up an auditable documented system forming part of the overall management system for the plant,
  1. On or about 28 April 2013, an event happened in the State of South Australia at Saxon Energy Services drill rig #188 which resulted in injuries to workers (“the Event”),
  1. On or about 30 April 2013 a “HSE Alert Bulletin” was issued under the name of Saxon Energy Services Inc. (the “Alert”) in relation to the Event,
  1. The SMP requires that all personnel should immediately review “HSE Alerts” of the same type as the Alert,
  1. The Alert identified that the Event occurred whilst workers were disassembling a drill string at rig #188,
  1. The Event is identified by the Alert as occurring as a result of an incorrect button being pushed by a worker and as a result, an Iron Roughneck ST – 80 was commanded to extend by mistake,
  1. As a result of the Iron Roughneck ST – 80 being commanded to extend, the Alert identified that the Derrickman was caught between the Iron Roughneck ST – 80 and a manual tong being used to disassemble the drill string,
  1. The Alert identified that the Derrickman received a fractured arm and bruising to the lower back/buttocks as a result of being caught between the engaged Iron Roughneck ST – 80 and a manual tong,
  1. On 23 June 2013, drill rig #185 used similar equipment to that used in the Event and engaged in similar activities to those undertaken in the Event. The operation of drill rig #185 required that the task of ‘pulling or tripping out of the hole’ be performed on occasion. This task included disassembling the drill string and disassembling the ‘bottom hole assembly’. The equipment available at drill rig #185 for this task included the Iron Roughneck ST – 80,
  1. The Event was therefore relevant to the operating plant, drill rig #185,
  1. THOMAS was aware or ought reasonably have been aware of the happening of the Event,
  1. The revision of the SMP for the operating plant was appropriate because:

a. Both Saxon Energy Services drill rig #188 and drill rig #185 engaged in the task of disassembling the drill string;

b. Both Saxon Energy Services drill rig #188 and a drill rig #185 used the same or similar equipment for the task of disassembling the drill string, including the Iron Roughneck ST – 80;

c. The happening of the Event revealed that an SMP for operating plant using equipment for disassembling a drill string, including the Iron Roughneck ST – 80, should contain provisions to address the prevention of the Iron Roughneck ST – 80 being activated whilst a person was at risk of injury or death from the said activation of the Iron Roughneck ST – 80;

d. The SMP for drill rig #185 did not contain a provision which addressed the prevention of the Iron Roughneck ST – 80 being activated whilst a person was at risk of injury or death from the said activation of the Iron Roughneck ST – 80,

  1. The SMP ought to have been revised by the operator, THOMAS,
  1. The SMP ought to have been revised by THOMAS such that:

a. All Work Instructions relating to the processes of ‘pulling/tripping out of hole’, disassembling the drill string and disassembling the bottom hole assembly included requirements:

i. For floor crew to activate the ‘emergency stop button’ to isolate the Iron Roughneck ST – 80 whenever they entered the embedded ‘danger’ warning yellow painted area around the drill string; and

ii. For the driller to wait until he received a positive signal from the floor crew before activating the Iron Roughneck ST – 80;

b. All Job Safety Analyses relating to the processes of ‘pulling/tripping out of hole’, disassembling the drill string and disassembling the bottom hole assembly included requirements:

i. For floor crew to activate the ‘emergency stop button’ to isolate the Iron Roughneck ST – 80 whenever they entered the embedded ‘danger’ warning yellow painted area around the drill string; and

ii. For the driller to wait until he received a positive signal from the floor crew before activating the Iron Roughneck ST – 80; and

c. Any other relevant amendments to ensure that the amendments in a. and b. above were comprehensible and effective were incorporated into the SMP,

  1. THOMAS failed to revise the SMP in this way, or at all,
  1. THOMAS thus breached the obligation in section 678 (1) (b) of the Act to revise the safety management plan for the plant, after the revision was made appropriate by the happening of an event relevant to the plant of which THOMAS was aware or ought reasonably to have been aware,
  1. By breaching that obligation, THOMAS caused the death of DODUNSKI,

contrary to the Acts in such case made and provided.”

Circumstances of aggravation

  1. [11]
    Each complaint contains a circumstance of aggravation, namely, that the said contravention caused the death of Gareth Leo Dodunski.
  2. [12]
    Both ss 678 and 704 are in Chapter 9 of the P&G Act. Section 732 is also in Chapter 9 and it provides:

“732 Increase in maximum penalties in circumstances of aggravation

  1. (1)
    This section provides for the maximum penalty for an offence against a provision of this chapter if the act or omission that constitutes the offence caused a circumstance stated in subsection (3).
  1. (2)
    If a circumstance stated in subsection (3) has happened, the maximum penalty stated in the subsection applies instead of the maximum penalty stated in another provision.
  1. (3)
    For this section, the circumstances and maximum penalties are—
  1. (a)
    for the death of, or grievous bodily harm to, more than 1 person—5,000 penalty units or 3 years imprisonment; or
  1. (b)
    for the death of, or grievous bodily harm to, only 1 person—3,000 penalty units or 2 years imprisonment; or

…”

The issue in dispute

  1. [13]
    The parties are agreed that there is only one issue for determination: is the circumstance of aggravation (the death of Mr Dodunski) a “matter of complaint” within the meaning of that term as used in s 43A? If it is, then the discretion available under s 43A arises. If not, then the Thomas complaint cannot be joined with the other two.
  2. [14]
    This agreement arises out of the circumstance that, in the allegations underlying the Thomas complaint, if the complainant’s evidence is accepted, then the failure to a revise the SMP is proved and the breach is made out. The circumstance of Mr Dodunski’s death is not needed to be proved in order to establish a breach of s 678 of the P&G Act.

Is the circumstance of aggravation a part of the “matter of complaint”?

  1. [15]
    The appellants commence their argument by seeking to find an analogy in s 568(12) of the Criminal Code 1899. That subsection provides:

“(12) Any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together.”

  1. [16]
    Although s 568(12) bears some similarity to s 43A, it must be borne in mind that s 43A does not allow for all charges to be joined on the one complaint whereas s 568(12) allows all charges to be on the one indictment. Section 43A allows for matters to be heard together – not for complaints to be joined.[3]
  2. [17]
    While some assistance can be gained from the decisions which have considered s 568(12), attention should first be given to the Justices Act and the construction it dictates.
  3. [18]
    The term “matter of complaint” is not defined in the Justices Act. But there are many sections which contain that term or something similar.
  4. [19]
    Section 19 of the Justices Act is a general provision which reminds the reader that a complaint can be about an offence, an act or an omission. Thus, a breach of duty may be the subject of a complaint. It provides:

“19  General Provision

Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, and such offence, act, or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person, the matter may be heard and determined by a Magistrates Court constituted, subject to this Act, by 2 or more justices in a summary manner under the provisions of this Act.” (emphasis added)

  1. [20]
    Section 27 provides for who may hear a “matter of complaint”:

“27  Hearing of complaint

  1. (1)
    Subject to the provisions of any other Act, every complaint shall be heard and determined by a Magistrates Court constituted by 2 or more justices.
  1. (2)
    If any Act authorises a matter of complaint to be heard and determined by—
  1. (a)
    a Magistrates Court constituted by 1 justice; or
  1. (b)
    1 justice;

that matter of complaint may be heard and determined by a Magistrates Court constituted by 1 justice.” (emphasis added)

  1. [21]
    The expression that “a matter of complaint” is to be “heard and determined” supports the view that it concerns those facts which go to constitute an offence and not those which are not necessary to establish guilt or otherwise.
  2. [22]
    Section 43 allows for the joinder of two “matters of complaint” in one complaint and is, therefore, cognate with s 568(12) of the Criminal Code.

“568  Cases in which several charges may be joined

  1. (1)
    Every complaint shall be for 1 matter only, and not for 2 or more matters, except—
  1. (a)
    in the case of indictable offences—if the matters of complaint are such that they may be charged in 1 indictment; or
  1. (b)
    in cases other than cases of indictable offences—if the matters of complaint—
  1. (i)
    are alleged to be constituted by the same act or omission on the part of the defendant; or
  1. (ii)
    are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
  1. (iii)
    are founded on substantially the same facts; or
  1. (iv)
    are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
  1. (c)
    when otherwise expressly provided.
  1. (2)
    When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.
  1. (3)
    At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section—
  1. (a)
    if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or
  1. (b)
    if no such objection is taken to the complaint—the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination.
  1. (4)
    If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant’s defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately.” (emphasis added)
  1. [23]
    Section 47 sets out the requirements for a sufficient description of an offence and, in so doing, provides that a circumstance of aggravation must be stated in the complaint but does not refer to the circumstance as a matter of complaint or part of the matter of complaint. It would not be necessary to include this requirement if the circumstance of aggravation was a matter of complaint or part of the matter of complaint.

“47 What is sufficient description of offence

  1. (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.

…

  1. (4)
    Unless otherwise expressly provided, if, for the purpose of the assessment of penalty in respect of a simple offence, it is intended to rely upon a circumstance which renders the defendant liable, upon conviction, to a greater penalty than that to which the defendant would otherwise have been liable, that circumstance shall be expressly stated in the complaint made in respect of that offence.”
  1. [24]
    It should also be noted that s 47(4) is premised upon the intention to rely upon a circumstance which renders a defendant liable, upon conviction, to a greater penalty. It does not contemplate that the circumstance is a necessary part of the case for the complainant.
  2. [25]
    On this point, the appellants make frequent reference to the facta probanda, that is, the facts which are required to be proved. They seek to compare the joinder provisions in the Criminal Code with s 43A. As is pointed out above, there is a difference between matters being joined and matters being heard together but, for the purposes of this examination, that is of little consequence. The purpose of both sections is to have matters against different defendants heard at the same time.
  3. [26]
    In R v Russell, Szann and Patterson (No 2)[4] Gibbs J (with whom Mack and Jeffriess JJ agreed) said:

“In these circumstances in my opinion the joinder of the charges was clearly justified by s 568(6)[5] of The Criminal Code which reads as follows: “any number of persons charged with committing different or separate offences arising substantially out of the same facts or out of closely related facts so that a substantial part of the facts is relevant to all the charges may be charged in the same indictment and tried together”. The facts out of which an offence arises within the meaning of the subsection are the facts which the Crown must prove to obtain a conviction – that is, the facta probanda – and do not include all the evidence admissible to prove the offence.”

  1. [27]
    It flows from that, that if these matters were being considered for joinder upon one indictment, the circumstance of aggravation would not be a matter to take into account as it is not a matter which must be proved in order to obtain a conviction. Putting to one side the technical difference between joining charges on the one indictment or complaint and hearing separate complaints together, this statement of principle applies in these circumstances.
  2. [28]
    The respondent argues that, as the circumstance of aggravation must appear on the complaint, “the circumstance of aggravation must surely be part of the ‘matter’ referred to in s 43(1) and must be part (with the statement of the offence itself) of the ‘matter of complaint’ which, with the statement of the offence itself, must be charged in a single paragraph.” But merely stating something does not make it so. A better means of assessing this argument is through further consideration of the statutory context.
  3. [29]
    A number of sections of the Justices Act demonstrate that a “matter of complaint” should not be construed to include a circumstance of aggravation. For example, s 52 deals with limitation of proceedings and relevantly provides:

“52  Limitation of proceedings

  1. (1)
    In any case of a simple offence or breach of duty, unless some other time is limited for making complaint by the law relating to the particular case, complaint must be made within 1 year from the time when the matter of complaint arose.”
  1. [30]
    This raises the question of when, in a particular case, a matter of complaint arises. Does that mean that the time for making the complaint can run from the time of the circumstance of aggravation? If an injury causes a death 18 months after the injury occurs, does time run from the date of the injury or the date of death? Is a circumstance of aggravation a part of a matter of complaint if it occurs before the subject event? By way of example, section 84(1A) of the Transport Operations (Road Use Management) Act 1995 provides that if an offender has been previously convicted of an offence of dangerous operation of a vehicle other than a motor vehicle, the court may impose a penalty of imprisonment of up to one year, compared to six months for a first offence. Subsection (1B) provides that if the offender has been twice previously convicted, the court must impose a period of imprisonment. On the respondent’s argument, the earlier conviction would be a matter of complaint, but it would only be a matter of complaint if a second offence took place. If complaint was made about the second offence but the earlier offence took place more than a year before the complaint issued, then could it be included as a circumstance of aggravation? Stating the problem demonstrates that construing “matter of complaint” in the way advanced by the respondent is inconsistent with the Act generally.
  2. [31]
    Another example arises in s 142 of the Justices Act. It relevantly provides:

“142 Proceedings in absence of defendant

  1. (1)
    If at the time and place so appointed the defendant does not appear when called and the justices are satisfied, on oath or by deposition as provided in section 56, that the summons was properly served on the defendant a reasonable time before the time appointed for the defendant’s appearance, the justices may—
  1. (a)
    proceed ex parte to hear and determine the case as fully and effectually to all intents and purposes as if the defendant had personally appeared before them in obedience to the said summons; or
  1. (b)
    if satisfied, from information given on oath, that the matter of the complaint is substantiated, issue their warrant to apprehend the defendant and to bring the defendant before justices to answer the complaint and to be further dealt with according to law;” (emphasis added)
  1. [32]
    On the respondent’s construction, a warrant could only be issued where the circumstance of aggravation was substantiated. Therefore, using the example above, if the prosecution could demonstrate that the accused had driven the vehicle dangerously, but could not show evidence of a prior conviction, the justice would not be able to issue a warrant or make an order under the above section. But if the offender had no prior convictions and consequently no circumstance of aggravation was charged, the warrant could be issued.
  2. [33]
    The illogicality of the proposition is made manifest by those examples. To define a circumstance of aggravation as part of a matter of complaint is not consistent with the operation of the Justices Act.
  3. [34]
    The appellants argue that term “matter of complaint” was considered by the Court of Appeal in Woods v Beattie; ex parte Woods.[6] In that case the court had to consider the limitation period in another statute which provided:

“A prosecution for an offence against this Act may be commenced ... within 6 months after the matter of complaint comes to the knowledge of the complainant ....”

  1. [35]
    After referring to authority, the court said:

“It is necessary to have regard to the terms of the provision which is presently material. The period commences when the complainant first has knowledge of ‘the matter of complaint’. The matter of complaint is the act or omission alleged in the complaint by which a prosecution is commenced, in this instance (leaving aside the dates alleged) that the respondent had prevented the electricity meter from duly registering the quantity of electricity supplied. The question is when the prosecutor first had that knowledge.”

  1. [36]
    The respondent submits that this case does not compel the result sought by the appellants because the Court of Appeal did not hold that a circumstance of aggravation was not part of a “matter of complaint”. That may be accepted, but only with the caveat that the issue of a circumstance of aggravation was not being considered.
  2. [37]
    Circumstances of aggravation can be employed to have two distinct effects. This was confirmed in Kingswell v The Queen[7] where Gibbs CJ, Wilson and Dawson JJ said:

“There is a close analogy between those cases in which the existence of the circumstances of aggravation converts the offence from a lesser to a greater one and those in which the existence of the circumstances of aggravation renders the accused liable to a penalty greater than that which could have been imposed if the circumstances did not exist. In cases of the first-mentioned kind, the circumstances of aggravation become elements of a distinct offence and therefore must be specifically alleged in the indictment. Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction.”

  1. [38]
    In each of the complaints the subject of the decision of the Industrial Magistrates Court the circumstance of aggravation is of the second type referred to in Kingswell. It is not an element of the offence charged. It follows, then, for the reasons given above, that the matters of complaint necessary to establish the charge in each complaint do not include the circumstances of aggravation.

Orders

  1. [39]
    For the reasons set out above, the circumstance of aggravation is not a part of matter of complaint. On the basis of the agreement between the parties, it follows that the appeal must be allowed and that the following orders be made:
  1. (a)
    the order of the Industrial Magistrate made on 13 January 2017 is set aside and, in lieu thereof, it is ordered that:
  1. (i)
    the complaints in the Kilby and Saxon matters be heard together; and
  2. (ii)
    the application of the Respondent filed in the Industrial Magistrates Court on 21 November 2016 is otherwise dismissed.

 

Footnotes

[1] Industrial Relations Act 2016 s 567.

[2] Allesch v Maunz (2000) 203 CLR 172 at 180-181.

[3]  Unlike s 43(2).

[4]  [1965] Qd R 334 at 337.

[5]  Now s 568(12).

[6]  [1995] 1 Qd R 343.

[7]  (1985) 159 CLR 264 at 280.

Close

Editorial Notes

  • Published Case Name:

    Carl Dennis Thomas v Paul Kevin Harrison; Jacob John Robert Kilby v Paul Kevin Harrison; Saxon Energy Services Australia Pty Ltd v Paul Kevin Harrison

  • Shortened Case Name:

    Thomas v Harrison; Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison

  • MNC:

    [2017] ICQ 3

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    11 Aug 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Allesch v Maunz (2000) 203 CLR 172
2 citations
Jump To
Cite 1 - (2000) 203 CLR 172
Cite 2 - (2000) 203 CLR 172
Kingswell v The Queen (1985) 159 C.L.R 264
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 264
Cite 2 - (1985) 159 C.L.R 264
R v Russell, Szann and Patterson (No 2) [1965] Qd R 334
2 citations
Jump To
Cite 1 - [1965] Qd R 334
Cite 2 - [1965] Qd R 334
Woods v Beattie; ex parte Woods[1995] 1 Qd R 343; [1993] QCA 85
2 citations
Jump To
Cite 1 - [1995] 1 Qd R 343
Cite 2 - [1995] 1 Qd R 343

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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