Corporate identity, statutory interpretation and keywords

Monday 29 November 2010 has been a busy day for Victorians. After a long wait, John Brumby conceded defeat in the Victorian state election. However, while politics tragics may have been waiting most of the day with bated breath, criminal law geeks received a feast of decisions from the Court of Appeal. Three in particular deserve special mention.

1. A responsibility shared is a responsibility diminished
In Linfox, Downer and Thiess v R [2010] VSCA 319 (the case that sparked some degree of controversy during the recent election campaign due to Greens candidate, Brian Walters SC doing what most barristers do - representing clients), the Court of Appeal held that the prosecution could not charge a group of three companies with breaches of the Occupational Health and Safety Act on the basis that they collectively were an employer in the form of a joint venture. The court held that the joint venture had no legal personality of its own and the prosecution had not shown any willingness to lead evidence to establish individual responsibility or employment of the workers concerned. The court also swiftly rejected an argument that a contractual agreement between the parties to the joint venture and Yallorn Energy that each party assumed responsibility as an employer under the OH&S Act and stated that:

Even if the Alliance Agreement between the joint venture and Yallourn Energy could be construed as evidencing the assumption, by each of the three companies as contracting parties, of management of and control over the mine site, there is no evidence which would enable the prosecution to show, for the purposes of s 26(2), the extent of management or control exercised by any individual company in the relevant place at the relevant time. Put another way, there is no evidence upon which a jury could be satisfied beyond reasonable doubt that any one of the defendant companies had management or control of any relevant matter.

More generally, the case reveals the difficulties that prosecutors can face in establishing the identity of an employer and the identity of a person 'in control' when a group of companies share responsibility for a project.

The court, which included Maxwell P, also criticised an argument that s145 of the OH&S Act originated from the Maxwell report (A reasonable argument in general, since so much of the Act was recommended by the Maxwell report). The court stated:

Again surprisingly, both parties asserted that s 145(1) owed its origin to the 2004 Maxwell Report on the review of the predecessor Act, the Occupational Health and Safety Act 1985 (Vic). This is simply not correct. Section 145(1) is a provision fundamentally different from that which was recommended. This is readily apparent upon an examination of the relevant section of the Report, which recommended only that officers of unincorporated associations (and partnerships) should have the same accessorial liability as officers of corporations. There was no suggestion in the Report that such an association, or a partnership, should be relieved of substantive liability altogether, by having its safety duties under the Act transferred wholesale to its officers.

The court issued a joint decision by Maxwell P, Weinberg and Mandie JJA and so we'll never know which particular judge was responsible for this passage. It does show however, that Parliament doesn't necessarily agree with (or succeed at implementing, if you think the change was inadvertent) all the details of an expert report, even if it generally agrees with the report.

2. The need for not too many particulars
I suspect Elucubrator will blog about this one soon, but the I just noticed that DPP v Kypri [2010] VSCA 323 has finally appeared on Austlii (Elucubrator earlier stated that leave had been granted, but that the decision was not available). In this judgment Harper and Hansen JJA granted leave to appeal to the Crown, seeking to challenge a decision by a Magistrate, and then the Supreme Court, on the requirements of a charge s49(1)(e) of the Road Safety Act. For those wanting to know more about the decision, I suggest you read Elucubrator's earlier post about the Supreme Court decision. At the Court of Appeal level, the court held that the it was reasonably arguable that a charge did not need to specify the precise basis under s55 of the Act which gave the police power to require a person to accompany them.

In our opinion it is arguable that it is not necessary for the charge to include the source of the power so relied upon by the relevant member of the police force. We point by way of analogy to the example to which the applicant refers in its written submissions where an affray is charged. It is, as the applicant there submits, unnecessary to specify the circumstances which give rise to the allegation that the accused participated in an affray. It may also be a relevant analogy that a charge such as murder does not need to specify all the elements which the prosecution must prove before the charge is made good.
It is, in our opinion, therefore arguable that a charge framed in the terms of this charge adequately describes the offence which the respondent is alleged to have committed. It is not an offence which is difficult to describe. It is simply that he failed to do what he was required to do, that is, he refused, when required to accompany a member of the police to a police station, to do so. The charge as farmed says just that. It also gives the date and place of the alleged offence.

Strangely, despite finding sufficient prospects of success, the court didn't advert to the earlier decision of DPP v Greelish or Clarke v Goode, which were binding on the lower courts. The court also made the following remarks concerning the impact of the case and the need for expedition:

We have been informed by counsel for the applicant that more than 700 summary prosecutions involving a charge laid under s 49(1)(e) await hearing and therefore the ultimate outcome of this litigation. More than 400 of these charges are over 12 months old. They are too old, therefore, to permit their being amended or reissued. For these reasons there will be leave to appeal the order of Pagone J pronounced on 7 September 2010. There will also be an order that the appeal be given such priority as the Registrar or Acting Registrar of the Court of Appeal deems appropriate.

This one should be a good decision to watch out for, as it affects a lot of prosecutions and concerns the need for specificity in a charge-sheet.

3. Trust us when we say that our statements are unimportant
Finally, we come to Ciantar & Rose v R [2010] VSCA 313. A few months ago, I commented on a group of cases that contained the catchwords "Appeal decision without precedent value". At the time, I commented that the court didn't explain those catchwords, despite raising interesting issues concerning the application of s6AAA of the Sentencing Act. Now, the court has given emphasis to the irrelevance of the earlier, non-precedent appeals. In Ciantar, the appellant sought to rely on statements in Skarky v R and Dow v R that s6AAA statements might provide a basis for a specific error argument. The court (Nettle and Bongiorno JJA) stated:

Counsel for the appellant also referred to Sharkey v R and Dow v R, in which Ashley and Weinberg JJA expressly left the question open. Those decisions, however, were expressed to be without precedent value and should not have been cited. The designation ‘without precedent value’ means what it says.

This raises some very interesting questions that the court didn't explore, such as:

• How can a court suspend the principle of stare decisis in relation to one of its own decisions at the time of making the decision?
• What jurisdiction does a court have for deciding that its own decisions aren't important in future cases?
• Are the catchwords part of the formal judgment and capable of forming part of the reasons for a decision?
• Can a later court interpret an earlier decision on the basis of the catchwords?

I leave the general issue about how the court should treat s6AAA statements for another day, as I've already blogged about it here. This might well be an early step towards reducing the interpretative burden on lower courts, by designating precedent and non-precedent decisions and being willing to back up the unimportance of designated decisions. If so, it will be interesting to see if the High Court upholds such an approach to interpretation of judicial decisions.