Nicholson v MSF Sugar Pty Ltd[2025] QDC 99

DISTRICT COURT OF QUEENSLAND

Summary

1. [1]
   The appellant appeals against the decision to dismiss the complaint on the grounds that the trial magistrate erred in refusing to allow the prosecution to amend the particulars. This refusal excluded probative evidence relating to risk assessment and other relevant matters.
2. [2]
   The appeal is opposed. The respondent argues that no error has been established and that the appeal is entirely without merit. The respondent further submits that the appeal should not have been brought or continued, particularly in light of the well-established duties of a prosecutor acting as a model litigant.
3. [3]
   The respondent was charged by complaint and summons under section 40C of the Electrical Safety Act 2002 (Qld) for breaching their electrical safety category 2 duty under section 30 of the Act. The charge alleged that the respondent failed to implement control measures to manage the risk posed by hazardous overhead electrical powerlines "in or near the area where the work was being conducted". This risk materialised in the fatal electrocution of an employee who was holding a load of metal railway lines carried by a crane moving down an adjacent road. The crane either contacted or came too close to the overhead powerlines. Another employee sustained serious burns while attempting to rescue the deceased, and the crane operator suffered severe psychological injury.
4. [4]
   On the second day of the trial, 22 November 2023, an issue arose due to an earlier objection to the prosecution's expert evidence, which was said to exceed the scope of the prosecution’s case. The case, as then pleaded, was interpreted as being confined to conditions within the worksite, where no hazardous overhead powerlines were present at all. In response, the prosecutor applied to amend the particulars to include considerations of knowledge, identification, assessment, and management of the risk posed by the nearby powerlines along the road adjacent to the worksite.  However, the learned magistrate refused the application, finding the particulars “ambiguous, unclear, and inconsistent with the factual case”. The magistrate further determined that the amendment would effectively constitute a “fresh charge” brought too late in the proceedings.
5. [5]
   As a result, relevant evidence was found inadmissible, and the prosecution’s case was rendered impotent. On 23 November 2023, the case was ultimately dismissed at the respondent’s request on the basis that there was no case to answer.
6. [6]
   Upon review, I am satisfied that the learned magistrate’s discretion miscarried by refusing amendment of the particulars, because of a misapprehension of the pleaded facts and failure to appreciate a salient feature of the prosecution case, influenced by erroneous or irrelevant considerations of fact and earlier separate proceedings, resulting in the dismissal of the proceeding and a miscarriage of justice.  Contrary to the respondent’s contention, and the learned magistrate’s remarks, in my respectful opinion the prosecution’s case is not confined to the respondent’s business activities within the ‘worksite’ but was pleaded to extend to ‘the area alleged where the work was to be conducted’, which includes the adjacent road area ‘in or near’ the overhead electric powerlines.
7. [7]
   The application to amend the particulars ought to have been allowed and the proceeding ought to have been adjourned to provide the respondent the opportunity to deal with the case on that footing.
8. [8]
   Accordingly, I allow the appeal and order that the proceeding be remitted to the Magistrates Court at Cairns for retrial according to law.

Appeal against Dismissal

9. [9]
   The appellant appeals pursuant to section 222 of the Justices Act 1886 (Qld). 

10. [10]
    Pursuant to section 223, the appeal is by way of rehearing on the original evidence, and any new evidence adduced by leave if there are special grounds for giving leave. 
11. [11]
    The rehearing requires this court to conduct a real review of the evidence before it (rather than a complete fresh hearing), and make up its own mind about the case.^[1]  Its function is to consider each of the grounds of appeal having regard to the evidence and determine for itself the facts of the case and the legal consequences that follow from such findings.^[2]  In doing so it ought pay due regard to the advantage that the magistrate had in seeing the witnesses give evidence, and attach a good deal of weight to the magistrate’s view.^[3]

12. [12]
    The High Court held in House v The King^[4] that:

“It is not enough that the Judges composing the Appellate Court consider that if they had been in a position of the primary Judge they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the Judge acts upon a wrong principle, if he allows erroneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the Appellate Court may exercise its own discretion in substitution for his if it has the materials for doing so.  It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts, it is unreasonable or plainly unjust, the Appellate Court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the Court of first instance.  In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

13. [13]
    The appellant must show that the learned magistrate’s discretion miscarried so that it was vitiated by an error of principle, or by a failure to appreciate a salient feature, or otherwise a miscarriage of justice.^[5]

Did the learned magistrate err by disallowing the prosecution to amend the particulars?

14. [14]
    The proceeding was framed by a complaint and summons made 28 July 2021 whereby it is alleged that:

“THE COMPLAINT of AARON JOHN GUILFOYLE, Work Health and Safety Prosecutor, Level 23, 50 Ann Street, Brisbane in the State of Queensland, made this 28^th day of July 2021, before the undersigned, a Justice of the Peace for the said State, who says that on or about the twenty-eighth day of July 2019, at Little Mulgrave in the said State, MSF SUGAR PTY LTD was conducting a business or undertaking, and held an electrical safety duty, namely a duty pursuant to section 30 of the Electrical Safety Act 2002, to ensure that its business or undertaking is conducted in a way that is electrically safe, and failed to comply with the said duty, and the failure exposed an individual to a risk of death or serious injury, contrary to section 40C of the Electrical Safety Act 2002.”

15. [15]
    The facts of the case were largely undisputed and the subject of written admissions (exhibit 1) at the trial as follows: 

3. “1)
   At the material time, MSF Sugar Pty Ltd was an Australian Proprietary company conducting a business or undertaking of growing, processing, marketing and exporting raw sugar.

3. 2)
   MSF Sugar Pty Ltd owned and operated a cane rail network, servicing growers to transport harvested cane to its mills.

3. 3)
   As part of its business or undertaking, MSF Sugar Pty Ltd commenced construction of a truck loading ramp and rail line extension at a location known as Singh’s Siding (‘the worksite’).

3. 4)
   The worksite was adjacent to a public road, being Irwin Access Road.

3. 5)
   MSF Sugar Pty Ltd engaged workers to work as part of its business or undertaking at the worksite.

3. 6)
   On 28 July 2019, a number of workers were carrying out work at the worksite as part of the business or undertaking of MSF Sugar Pty Ltd. Those workers included:

3. a)
   Brett Alan Quinn (Quinn);

3. b)
   Trevor Cole (Cole); and

3. c)
   Carlos Mediero Martinez (Mediero Martinez).

3. 7)
   On 28 July 2019, Mediero Martinez operated a 25-tonne Franna Crane (‘the crane’) by driving the crane along Irwin Access Road.

3. 8)
   While being driven by Mediero Martinez on Irwin Access Road, the crane came to be underneath overhead electric lines.

3. 9)
   While the crane was being driven by Mediero Martinez on Irwin Access Road, the boom of the crane contacted, or came within sufficient proximity of the overhead electric lines to allow electricity to pass from the overhead electric lines to the boom of the crane (‘the incident’).

3. 10)
   At the time of the incident, Quinn was acting as a dogman/dogger for the crane.

3. 11)
   The incident caused Quinn’s death by electrocution.

3. 12)
   As a consequence of the incident, Cole sustained serious injury.”

16. [16]
    In its pre-trial memorandum, delivered on 28 July 2023, the respondent sought confirmation of the prosecution’s case and indicated its objection to the proposed expert evidence of Professor Love regarding risk assessment.  The prosecution affirmed its intention to present the expert evidence to establish the respondent’s risk assessment failures, to which the respondent had signalled an objection.  It is unclear why pre-trial arguments and rulings were not used to address these critical issues as part of the case management process.  The seriousness of the matter only became evident at trial.
17. [17]
    The prosecution’s particulars as amended at the commencement of the trial on 20 November 2023 are as follows:

3. 1.
   At the material time, MSF Sugar Pty Ltd was an Australian Proprietary company conducting a business or undertaking of growing, processing, marketing and exporting raw sugar.

3. 2.
   MSF Sugar Pty Ltd owned and operated a cane rail network, servicing growers to transport harvested cane to its mills.

3. 3.
   As part of its business or undertaking, MSF Sugar Pty Ltd commenced construction of a truck loading ramp and rail line extension at a location known as Singh’s Siding (the worksite).

3. 4.
   The worksite was adjacent to a public road, being Irwin Access Road.

3. 5.
   MSF Sugar Pty Ltd engaged workers to work as part of its business or undertaking at the workplace.

3. 6.
   On 28 July 2019, a number of workers were carrying out work at the worksite as part of the business or undertaking of MSF Sugar Pty Ltd. Those workers included:

3. a.
   Brett Alan Quinn (Quinn);

3. b.
   Trevor Cole (Cole); and

3. c.
   Carlos Mediero Martinez (Mediero Martinez).

3. 7.
   Mediero Martinez was operating a 25 tonne Franna Crane (‘the crane’).

3. 8.
   The work involved workers using the crane to carry sections of railway line from one end of the worksite to the other.

3. 9.
   In the course of that work, Quinn was acting as a dogman, and holding a section of railway line which was suspended from the crane.

3. 10.
   As Mediero Martinez drove the crane along Irwin Access Road, the crane contacted, or came in close proximity to, overhead electric lines.

3. 11.
   MSF Sugar Pty Ltd failed to ensure their business or undertaking was conducted in a way that was electrically safe, in that it failed to implement one or more of the following control measures to manage the risk arising from the overhead electric powerlines in or near the area where work was to be conducted:

3. a.
   Requesting for overhead electric powerlines to be temporarily de-energised;

3. b.
   Implementing an exclusion zone around the overhead electrical lines and prohibiting the use of the crane in that area;

3. c.
   Utilising a spotter to observe and maintain the exclusion zone distance for the crane;

3. d.
   Installing visual aids (including signs) to indicate the location of the overhead electrical lines;

3. e.
   Fencing or delineating a defined work area and delineating a ‘safe zone’ for the use of the crane;

3. f.
   Installing warning, sensing or limit devices on the crane to prevent the crane from moving into contact and/or maintaining a set distance from the overhead electric lines; and

3. g.
   Utilising non-conductive tag lines on loads to eliminate the need for the dogger to hold onto and have direct contact with the load.

3. 12.
   The control measures MSF Sugar Pty Ltd should have implemented are those set out at paragraph 11 above.

3. 13.
   The failure by MSF Sugar Pty Ltd to comply with its duty exposed individuals, namely, Quinn, Cole and Mediero Martinez, to a risk of death or serious injury.

3. 14.
   The risk materialised when Quinn, Cole and Mediero Martinez sustained serious injury after the boom of the crane contacted, or came near, overhead electric lines.”

18. [18]
    At the start of the trial, after the appellant opened its case consistent with the particulars (including tendering, by consent, the written admissions of facts, a bundle of documents, and body-worn camera recordings), the respondent pressed its objection to the proposed evidence of Professor Love as a preliminary matter.  The respondent’s counsel relied upon detailed written submissions, which were then provided to both the appellant and the court.
19. [19]
    The core of the objection was that no particulars pointed to any issue with risk assessment; thus, any evidence regarding the absence of a risk assessment was deemed inadmissible.  The respondent’s objection was premised on this gap in the particulars “connecting the [respondent], through either an act of commission or omission, to the use of the crane, either outside of the pleaded confines of the worksite or, more particularly, by driving down the public road over which ran clearly visible power lines”. 
20. [20]
    After expressly acknowledging:

3. “18.
   Of the various steps pleaded in paragraph 11, each are clearly and expressly related to a circumstance where the crane was driven down the public road and hence came into close proximity with the overhead power lines”.

18. The respondent submitted that:

3. “19.
   That is indeed what occurred, but totally absent is any pleading as to why it occurred and how the Defendant is liable for that occurrence, and accordingly, the absence of any pleaded allegation addressing those issues is fatal to the prosecution case.

3. 20.
   There is an apparent and fundamental disconnect between paragraphs 4 and 8 - which both define the worksite as NOT comprehending the Road and confine the work to be conducted to THAT work site - and paragraph 11 which addressed the situation of the crane NOT being in the worksite, but some distance out of it.

3. 21.
   What is entirely missing is any pleading connecting the Defendant, through either an act of commission or omission, to the use of the crane, either outside of the pleaded confines of the worksite or, more particularly, by driving down the public road over which ran clearly visible power lines.”

21. [21]
    The respondent relied upon Harrison v President of the Industrial Court [2016] QCA 89, to submit that:

3. “24.
   In the context of this Application, the failure to plead, in terms, how it was, and who was therefore liable, that the crane came to depart from the pleaded worksite and drive down the road and to thereby, only as a consequence of driving down that road, come into proximity of the powerlines, is fatal to the Prosecution case and cannot be remedied by recourse to the Love Report.

3. 25.
   There is no allegation, and nor could there be, that the worksite, as pleaded, was such that the crane, had it remained within the confines of the worksite, would nonetheless have come anywhere near the powerlines.

3. 26.
   Indeed, the uncontested evidence is that the only reason that the crane contacted, or came in close proximity to the power lines was because it was not in the worksite when the incident occurred, but was driven down the road.”

22. [22]
    Whilst the respondent acknowledged that it is indisputable that Mr Quinn led the crane onto and down the road, it was argued that there is no pleaded allegation that the respondent bore any responsibility for his conduct, entirely inconsistent with his own specified worksite plan.
23. [23]
    Acceding to the objection as effectively amounting to a 'de facto no case submission,' the trial magistrate made observations to the effect that the prosecution’s case was pleaded “about what happened in the worksite” in terms of failing to implement control measures listed in paragraph 11 of the particulars, being secondary to a risk assessment, and that the disputed expert evidence went to an unpleaded case “about failing to conduct an adequate risk assessment” outside the worksite.
24. [24]
    In the face of continuing opposition, the appellant maintained that evidence of risk assessment was admissible because the court must consider whether the respondent conducted itself in an electrically safe manner as mandated by legislation. To make this determination, the appellant contended, the court must assess whether persons or property are free from electrical risk, which can only be established by examining whether the risk has been eliminated or minimised as far as reasonably practicable. The appellant further argued that this assessment should consider factors such as the likelihood of risk, the degree of potential harm, the defendant's knowledge, and related aspects.  The trial was in its early stages at that time, with only one uncontentious witness having testified.  The prosecutor requested and was given time to consider and respond to the respondent’s written submissions, but, in the interest of efficiency, all parties agreed that the hearing could be continued with the testimony of Mr Cole, followed by an adjournment for legal arguments the next day.
25. [25]
    It wasn’t until late on the following day that the prosecutor was able to act on belated instructions to apply to amend the particulars “as a result of trying to ensure there is transparency and clarity to the defence about the way in which the prosecution case will be run”. 
26. [26]
    The proposed amended particulars, as underlined, read as follows:

3. “1.
   At the material time, MSF Sugar Pty Ltd was an Australian Proprietary company conducting a business or undertaking of growing, processing, marketing and exporting raw sugar.

3. 2.
   MSF Sugar Pty Ltd owned and operated a cane rail network, servicing growers to transport harvested cane to its mills.

3. 3.
   As part of its business or undertaking, MSF Sugar Pty Ltd commenced construction of a truck loading ramp and rail line extension at a location known as Singh’s Siding (the worksite).

3. 4.
   The worksite was adjacent to a public road, being Irwin Access Road.

3. 5.
   MSF Sugar Pty Ltd engaged workers to work as part of its business or undertaking at the workplace.

3. 6.
   On 28 July 2019, a number of workers were carrying out work at the worksite as part of the business or undertaking of MSF Sugar Pty Ltd. Those workers included:

3. 11.1
   Brett Alan Quinn (Quinn);

3. 11.2
   Trevor Cole (Cole); and

3. 11.3
   Carlos Mediero Martinez (Mediero Martinez).

3. 7.
   Mediero Martinez was operating a 25 tonne Franna Crane (‘the crane’).

3. 8.
   The work involved workers using the crane to carry sections of railway line from one end of the worksite to the other.

3. 9.
   In the course of that work, Quinn was acting as a dogman, and holding a section of railway line which was suspended from the crane.

3. 10.
   As Mediero Martinez drove the crane along Irwin Access Road, the crane contacted, or came in close proximity to, overhead electric lines.

3. 11.
   MSF Sugar Pty Ltd failed to ensure their business or undertaking was conducted in a way that was electrically safe, in that it

3. 11.1
   Knew, or ought to know, of the presence of the overhead electric lines along Irwin Access Road adjacent to the worksite; and

3. 11.2
   Failed to identify the presence of the electric lines near the worksite as a hazard in a way that was consistent with the Working near overhead and underground electric lines Electrical Safety Code of Practice 2013; and

3. 11.3
   Failed to assess the risk of death or serious injury by way of electric shock in a way that was consistent with the Working near overhead and underground electric lines Electrical Safety Code of Practice 2013; and

3. 11.4
   Failed to eliminate or minimise that risk by implementing one or more of the following control measures to manage the risk arising from the overhead electric lines in or near the area where work was to be conducted:

3. a)
   Requesting for overhead electric lines to be temporarily de-energised;

3. b)
   Implementing an exclusion zone around the overhead electric lines and prohibiting the use of the crane in that area;

3. c)
   Utilising a spotter to observe and maintain the exclusion zone distance for the crane;

3. d)
   Installing visual aids (including signs) to indicate the location of the overhead electric lines;

3. e)
   Fencing or delineating a defined work area and delineating a ‘safe zone’ for the use of the crane;

3. f)
   Installing warning, sensing or limit devices on the crane to prevent the crane from moving into contact and/or maintaining a set distance from the overhead electric lines; and

3. g)
   Utilising non-conductive tag lines on loads to eliminate the need for the dogger to hold onto and have direct contact with the load.

3. 12.
   The control measures MSF Sugar Pty Ltd should have implemented are those set out at paragraph 11 above.

3. 13.
   The failure by MSF Sugar Pty Ltd to comply with its duty exposed individuals, namely, Quinn, Cole and Mediero Martinez, to a risk of death or serious injury.

3. 14.
   The risk materialised when Quinn, Cole and Mediero Martinez sustained serious injury after the boom of the crane contacted, or came in close proximity to, overhead electric lines.

27. [27]
    The defence opposed the application to amend the particulars. 
28. [28]
    During the course of the argument, the learned magistrate reminded the applicant about the reasons given in the committal proceeding for dismissing the industrial manslaughter charge under section 48N of the Act as being a significant indicator that the nature of the case centred on “leaving the workplace,” and that the prosecution should have understood as of July 2023 that “this was a systems case,” particularly since “two-thirds” of expert report focused on risk assessment, despite it never being formally pleaded. The prosecutor argued that “it’s always been part of the material,” which was rebuffed with “But just because something’s disclosed doesn’t necessarily make it relevant to a fact in issue to be decided” by the learned magistrate.  The prosecutor maintained that the evidence is relevant and therefore, prima facie admissible.
29. [29]
    After hearing further argument, the learned magistrate adjourned to consider his decision.  On 22 November 2023, the learned magistrate refused the appellant’s application because the particulars were “ambiguous, unclear and inconsistent with the factual case” and the amendment would amount to a “fresh charge” too late in the wake of case management and at that stage of the case.  Once the prosecution’s case was so confined, the evidence was found irrelevant to the pleaded case, and the prosecution’s case was rendered impotent.  On 23 November 2023, the case was ultimately dismissed at the behest of the respondent on the grounds there was no case to answer.
30. [30]
    As the matter evolved at the trial, it seems to me that the following questions arise for determination:

    1. Is the complaint defective because it fails to allege or particularise the acts or omissions set to found the charge?
    2. Is such a defect capable of a cure by the provision of particulars or amendments in the interests of justice?
    3. Will the respondent suffer irremediable prejudice?
31. [31]
    Sections 42, 43, 36 and 47 of the Justices Act 1886 (Qld) require the proceeding to be commenced by a written complaint for one charge with a sufficient description of the offence charged. 
32. [32]
    The role of particulars is to inform the defendant of the specific acts or matters forming the basis of the charge, ensuring they understand the substance of the case they must address. Questions of relevance and the ability of the defence to make informed decisions, such as in cross-examination and evidence organisation, rely heavily on the particulars provided.  The Crown is bound by its particulars, though amendments can be made if no prejudice is caused to the defence, and when ordered, particulars are considered part of the charge.
33. [33]
    In assessing the adequacy of particulars, the following considerations arise:^[6]

    1. Do they enable the defendant to understand the nature and substance of the charge without substituting the charge.
    2. Do they specify the time, place, and manner of the accused’s acts or omissions?
    3. Do they identify the specific act, matter, or thing that forms the basis of the charge?
    4. Do they clearly outline the essential factual elements of the offence?
    5. In cases with alternatives, do they clearly explain how each alternative is presented? Lack of clarity in particulars can lead to numerous, potentially oppressive, logical alternatives.
    6. Do they prevent any chance of misleading the defendant?
34. [34]
    Section 48 permits amendment of a complaint at the ‘hearing of the complaint’, in circumstances where there is a defect in the complaint (in substance or form), or a variance between the complaint and the evidence adduced at the hearing where it appears to be necessary or desirable in the interests of justice.  Of course, a properly pleaded complaint must allege particulars of the acts or omissions constituting the offence of failing to discharge a particular workplace health and safety obligation.  It seems to me that the scope of section 48 includes an amendment to deficient particulars of the relevant acts or omissions constituting the offence.^[7]
35. [35]
    In the Director of Public Prosecutions (DPP) (Vic) v Kypri,^[8] Nettle JA said:

“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.”

36. [36]
    Further, section 49 provides for a remedy of adjournment at the request of a defendant in circumstances where a defendant has been misled or deceived due to a variance between the complaint summons and the supporting evidence adduced at the hearing.
37. [37]
    In his detailed ex tempore ruling, the trial magistrate affirmed the general legal principle that particulars can be amended during trial, but only where fairness permits. He cited Harrison v The President of the Industrial Court of Queensland [2016] QCA 89, Parhusip v Bell [2015] ICQ 25, and Connors v Wilmar Sugar [2019] QDC 73, which stress the critical function of particulars in workplace prosecutions and the need for precision in outlining alleged breaches of duty.
38. [38]
    The learned magistrate analysed the particulars, emphasising their role in defining the scope of the prosecution’s case. He noted that the particulars described the worksite as a specific area adjacent to a cane field, where the respondent was constructing a truck loading ramp and rail line extension.  He identified how paragraph 3 explicitly defined the worksite as excluding Irwin Access Road, which was identified in paragraph 4 as a public road adjacent to the worksite.  He then confined paragraph 8 as to reinforcing the confinement of the work to this designated “worksite” area and that the work involved using a crane to move railway line sections “from one end of the worksite to the other” within the worksite. 
39. [39]
    In that context, learned magistrate went on to acknowledge that paragraph 10 alleged that the incident occurred when the crane was driven along Irwin Access Road, resulting in contact with overhead powerlines, but he critically remarked that the particulars did not plead a failure to assess the risk of the crane leaving the worksite or a course of conduct involving such deviations. 
40. [40]
    The trial magistrate rejected the prosecution contention that the use of the words  “… in or near the area where work was to be conducted …” in paragraph 11 of the trial particulars, together with the disclosure of Professor Love’s report should have been adequate notice to the defendant as to the case that was to be met at trial.  Instead, he found that the new subparagraphs 11.1 to 11.4 represented a material shift in the case, now placing emphasis on the defendant’s failure to assess the risk that the crane might leave the worksite and travel along the road, thus entering the zone of electrical hazard. 
41. [41]
    He found the phrase “in or near the area where work was to be conducted” in paragraph 11 to be ambiguous and insufficient to notify the defendant of a case involving a failure to assess the risk of the crane exiting the worksite. He reasoned that the particulars, read as a whole, focused on the work conducted within the defined worksite and did not contemplate activities on the adjacent public road. The incident’s occurrence on Irwin Access Road, therefore, represented a deviation from the pleaded scope of work, and the particulars did not adequately articulate a case based on the risk of such a deviation. The magistrate highlighted that the prosecution’s expert report by Professor Trevor Love, received in November 2021, had flagged a case centered on hazard identification and risk assessment, yet the prosecution failed to amend the particulars earlier to reflect this theory.
42. [42]
    Drawing on legal authorities, the learned magistrate underscored the purpose of particulars in criminal cases: to enable the defendant to know the precise nature of the charge and the specific transaction relied upon by the prosecution. He found that allowing the amendment would introduce a new pathway to criminal responsibility, which was not pleaded, namely, a failure to assess the risk of the crane leaving the worksite.  He summarised the new thrust of the prosecution’s case as follows:

“So the real issue seems to be whether or not MSF Sugar can be found to be in breach of its duties in circumstances where the crane drove the road outside of the worksite, that is, it is essentially an allegation that they failed to adequately assess the hazard presented by overhead electrical lines adjacent to the worksite.”

43. [43]
    This shift, he determined, would cause procedural unfairness to the defendant, who had prepared their defence based on the original particulars. Factors contributing to this unfairness included the significant time elapsed since the incident (over four years), the prosecution’s opportunity to refine their case post-committal, and the defence’s loss of forensic advantage, such as decisions on admissions and the potential need for additional expert evidence.
44. [44]
    The learned magistrate also addressed the prosecution’s attempt to lead evidence from Mr. Mediero Martinez regarding his prior knowledge of the powerlines and previous instances of driving the crane on Irwin Access Road. He ruled this evidence inadmissible, as it was irrelevant to the pleaded case, which was confined to the events of July 28, 2019, within the worksite. The magistrate noted that knowledge was not an element of the prosecution’s case, and evidence of prior conduct was highly relevant to a “course of conduct” or risk assessment case, which was not pleaded. He exercised his discretion to exclude this evidence, citing its limited probative value and potential prejudice to the defendant, given the case’s confinement to the specific incident on the worksite.
45. [45]
    In concluding, the learned magistrate disallowed the amendment to the particulars, holding the prosecution to the case as pleaded in the proposed amended particulars. His Honour characterised the worksite as a clearly defined area, distinct from Irwin Access Road, and emphasised that the prosecution’s case was limited to whether the defendant failed to implement specific control measures within the worksite on the day of the incident. This ruling significantly constrained the prosecution’s ability to present evidence related to broader risk assessments or prior conduct, prompting the prosecution to seek an adjournment to reconsider their position.
46. [46]
    The trial was adjourned until 23 November 2023, but since the prosecution’s case was rendered impotent, the case was ultimately dismissed at the respondent’s application on the basis that there was no case to answer.
47. [47]
    The learned magistrate, apparently persuaded by the respondent’s arguments, erred by focusing on the definition of the “worksite” as the only area where work was to be carried out for the respondent’s business, namely Singh’s Siding. Relying on photographic, diagrammatic, and documentary evidence, his Honour concluded that the defined worksite contained no overhead powerlines. Consequently, as the incident involved a crane operating outside this worksite and no foreseeable risk of such a deviation was pleaded, the magistrate held that the proposed amendment was too different, late, and prejudicial to be allowed.
48. [48]
    Contrary to the respondent’s contention and the learned magistrate’s remarks, in my respectful opinion, the prosecution’s case is not confined to the respondent’s business activities within the ‘worksite’ but extends to ‘the area alleged where the work was to be conducted’, which includes the adjacent road area, and ‘in or near’ the overhead electric powerlines.
49. [49]
    It seems to me that the charge as particularised ought to be considered in the context of the uncontested facts and the legislative context.
50. [50]
    The respondent faced charges under a category 2 offence as outlined in section 40C of the Electrical Safety Act 2002 (Qld). This offence occurs when three conditions are met: the person holds an electrical safety duty, fails to fulfill that duty, and this failure creates a risk of death or serious injury to an individual.
51. [51]
    By virtue of section 30, "A person conducting a business … must ensure the person's business … is conducted in a way that is electrically safe."  This responsibility encompasses “the performance of work, whether or not electrical work, involving contact with, or being near to, exposed parts, ensuring persons performing the work are electrically safe.” 
52. [52]
    The Act defines “electrically safe” in section 10(2) as meaning, in relevant part, “(a) for the way a business…is conducted, that all persons are free from electrical risk from the conduct of the business…”. “Electrical risk” is defined in section 10(1)(a) as “in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity.”  Section 10(4) clarifies that being “free from electrical risk, for a person or property, means that – "(a) electrical risk to the person or property has been eliminated, so far as is reasonably practicable; or (b) if it is not reasonably practicable to eliminate electrical risk to the person or property, the risk has been minimised so far as is reasonably practicable.”
53. [53]
    Section 28 defines “reasonably practicable,” as that which is, or was, at a particular time, reasonably able to be done in relation to ensuring electrical safety, taking into account and weighing up all relevant matters including –

3. “(a)
   the likelihood of the hazard or the risk concerned happening; and

3. (b)
   the degree of harm that might result from the hazard or the risk; and

3. (c)
   what the person concerned knows, or ought reasonably to know, about -

3. (i)
   the hazard or the risk; and

3. (ii)
   ways of eliminating or minimising the risk; and

3. (d)
   the availability and suitability of ways to eliminate or minimise the risk; and

3. (e)
   after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

54. [54]
    There is an obligation upon a person conducting a business to “manage risks by identifying reasonably foreseeable hazards that could give rise to a risk, eliminating those risks so far as is reasonably practicable, or if that is not possible, minimising those risks by implementing control measures”.
55. [55]
    Accordingly, the charge proceeded on the basis that the respondent either knew or ought to have known about the overhead electric lines in or near the respondent’s business activities and did not take steps to eliminate or minimise that hazard as they were required to do. This includes the “worksite” and “the area alleged where the work was to be conducted” on the adjacent road “in or near” the overhead electric powerlines.
56. [56]
    So much is borne out of both the uncontentious facts and the previously amended particulars before the court at that time:

    1. The “worksite” is defined as being where the “construction of a truck loading ramp and rail line extension at a location known as Singh’s Siding”, and as being “adjacent to a public road, being Irwin Access Road.” 
    2. The prosecution alleges that the respondent breached its duty under s 40C of the Electrical Safety Act 2002 (Qld) to conduct its business in an electrically safe way by failing to the manage risks from “the overhead electric powerlines in or near the area where work was to be conducted” and thereby exposed the workers to death or serious injury.
    3. As distinct from the defined “worksite”, the proper construction of the description of “where work was to be carried out” is discerned by reading the immediate preceding paragraphs that describe that the work of Quinn (dogman), Cole, and Martinez (crane operator), involved using the crane along Irwin Access Road to carry sections of railway line from one end of the worksite to the other, when, the crane contacted or so came close to arc with the overhead electric lines. 
    4. In that context, the prosecution particularises that the risk materialised because of the breach when Quinn died by electrocution and Cole sustained serious injury.
57. [57]
    Upon review, I am satisfied that the learned magistrate’s discretion miscarried by refusing amendment of the particulars, because of a misapprehension of the pleaded facts and failure to appreciate a salient feature of the prosecution case – that the place where the work was being carried out was not confined to the “worksite” but included where the work was being carried out using the crane along Irwin Access Road to carry sections of railway line from one end of the worksite to the other.  It seems to me that whilst the complaint failed to allege or particularise the acts or omissions set out in the proposed amendment, such a defect was capable of a cure by the provision of the proposed amended particulars.
58. [58]
    It seems to me that the decision to refuse the application to amend the particulars is a wrong decision of law premised on a factual fiction, resulting in a stifling of the prosecution's case.  This allowed erroneous or irrelevant considerations of separate committal proceedings for industrial manslaughter, which were unrelated to the category two offence at issue, resulting in the dismissal of the proceeding and a miscarriage of justice. 
59. [59]
    Further, I do not accept that the amendment so fundamentally changes the case on day three of a five-day trial to result in irremediable prejudice or incurable unfairness, as contended by the respondent.  The application to amend the particulars was made before the majority of the evidence was presented; only one uncontentious witness had given evidence, the appellant sought to amend the particulars to make it clear that the prosecution case related to issues regarding assessment of risk. Any potential prejudice or unfairness to the respondent arising from this amendment could be effectively addressed through an adjournment, if required, and, if necessary, an award of costs.
60. [60]
    The application to amend the particulars ought to have been allowed and if the respondent were not prepared to proceed, the proceeding could have been adjourned to provide the respondent the opportunity to deal with the case on that footing.
61. [61]
    The appeal is allowed on that ground.

Did the learned magistrate err in ruling the evidence relating to risk assessment and matters arising prior to the date of the incident were inadmissible?

62. [62]
    Following the ruling on the amendment of particulars, the learned magistrate made the further ruling that excluded all evidence regarding the assessment of risk, prior knowledge of the risk, previous work conduct (including prior operation of the crane), and any evidence related to work performed at the site before the incident day. 
63. [63]
    As a result, the prosecution's case was limited to admissions and documentary exhibits that had already been submitted. The prosecution then closed its case, and the defendant was found to have no case to answer and was discharged on 23 November 2023.
64. [64]
    Having regard to my findings on the first ground, this ground is rendered nugatory.  The expert evidence of risk assessment in the report of Professor Love is plainly relevant, and any other relevant evidence will be a matter for the retrial.

Remittal

65. [65]
    In the disposal of the appeal, this court has the same powers as the Court of Appeal on an appeal.^[9]  Further, s 225 Justices Act 1886 (Qld) provides that:

3. “(1)
   On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

3. (2)
   If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration.

3. (3)
   For subsection (1), the judge may exercise any power that could have been exercised by whoever made the order appealed against.

3. (4)
   An order made under subsection (1) has effect, and may be enforced in the same way, as if it had been made by whoever made the appealed order.”

66. [66]
    Having regard to my findings, the orders of the Magistrates Court made in Cairns on 22 and 23 November 2024 ought to be set aside, and in lieu it is ordered that the appellant have leave to file and serve amended particulars of the charge within 14 days.
67. [67]
    I now consider the utility of sending the proceeding back to the Magistrates Court with guidance directions for rehearing or reconsideration according to law.
68. [68]
    In Dyers v The Queen,^[10] Gaudron and Hayne JJ said of the discretion to remit:

3. “22.
   In these circumstances, it would ordinarily follow that a new trial should be ordered, leaving it to the prosecuting authorities to decide whether to proceed with a new trial. In this case, however, the sentence imposed on the appellant has expired. The decision whether to continue a prosecution is ordinarily a decision for the executive, not the courts.  There have, however, been cases where this Court has quashed a conviction, without either ordering a new trial or directing entry of a verdict of acquittal (See, eg, Callaghan v The Queen (1952) 87 CLR 115).  To make an order that would preclude a new trial would constitute a judicial determination of the proceedings against the appellant otherwise than on trial by jury and in circumstances where it is not held that the evidence adduced at trial required the jury to acquit the appellant.”

69. [69]
    Kirby J identified considerations relevant to ordering a retrial:^[11]

3. “88.
   Where an appellate court has not accepted an argument that a verdict is unreasonable, but has found a material error of law, the proper order is normally to provide for a retrial.  Where the prosecutor's discretion is exercised in favour of a retrial, such an order permits a verdict to be taken from a jury accepted as representing the community.  This is why, normally, it is left to the Director of Public Prosecutions to evaluate the competing considerations for and against a retrial.

3. 89.
   This said, an order for a new trial remains ‘within limits, a discretionary remedy’. It is no less so in criminal appeals, although the considerations of the public interest involved in criminal proceedings are somewhat different to those in civil cases. It is a judicial act and therefore not an automatic or unthinking one.

3. 90.
   In the special circumstances of this case, I have concluded that a new trial of the appellant should not be ordered. The most telling circumstances are: (1) the age of the appellant and his proved medical condition that moved the Court of Criminal Appeal to substitute a non-custodial sentence; (2) the absence of any challenge by the prosecutor to that substituted sentence; (3) the fact that the appellant has fully served that sentence and that principles of double jeopardy would restrain any increase in the sentence following conviction after a retrial; (4) the absence of any reason to require a retrial in the appellant's case and the fact that the appellant does not ask for a retrial; (5) the relatively confined nature of the assault alleged; (6) the undesirability of subjecting the complainant and her mother to the ordeal of giving evidence on a further trial; (7) the fact that a further trial would be the third occasion on which the appellant had been put on trial for the offence; and (8) the public costs and inconvenience of a further trial so many years after the alleged events and the likelihood that the prosecution might, on a new trial, be obliged to call the witnesses upon whose absence it commented in the second trial, thereby presenting its case in a different way.”

70. [70]
    In the circumstances of the present case, the following matters are relevant and favourable to exercise discretion to order a retrial:

    1. the serious nature and seriousness of the offending conduct;
    2. the respondent’s not guilty plea, the uncontroversial facts and the scope of contest in the original proceeding;
    3. the trial was in its early stages at that time of the prosecutor’s request to respond to the respondent’s written submissions with instructions, but, in the interest of efficiency, all parties agreed that the hearing could be continued with the testimony of Mr Cole, followed by an adjournment for legal arguments the next day;
    4. the extent to which the material errors found on appeal are attributable to the conduct of the respondent;
    5. the resultant exclusion of relevant evidence at the original hearing, such that, taken at its highest, were capable of sustaining a conviction;
    6. the likelihood that the prosecution, on a new trial, will not exploit a forensic advantage, present its case with fresh evidence and in a different way than originally intended;
    7. the time elapsed since the orders and appeal; and
    8. the cost, delay and inconvenience of another trial.
71. [71]
    In these circumstances, I have concluded that a retrial should be ordered.

Order

72. [72]
    For these reasons, I will order that:

    1. Appeal allowed.
    2. The orders of the Magistrates Court made in Cairns on 22 and 23 November 2024 are set aside, and in lieu it is ordered that the appellant have leave to file and serve amended particulars of the charge within 14 days.
    3. The proceeding is remitted to the Magistrates Court Cairns Registry for case management and rehearing before a different magistrate in due course.

Judge DP Morzone KC