WorkSafe to provide further particulars in its charging documents, says High Court

The High Court has emphasised the importance of WorkSafe setting out in its charging documents, at the commencement of health and safety prosecutions, detailed particulars of alleged failures by defendants to ensure the health and safety of workers. Failure to do so could cause the case to be confined to the particulars set out in the original summary of facts and, if WorkSafe wishes to broaden the scope of those allegations, leave of the Court will be required to amend the charge.

Summary of key points

This decision, WorkSafe New Zealand v Talley’s Group Limited [2017] NZHC 1103, follows an appeal by WorkSafe against a District Court order dismissing a charge relating to a forklift incident that caused serious injuries to an employee. Although WorkSafe was partially successful on the appeal, and the District Court’s order was overturned, the High Court decision contains some helpful findings which include:

  • WorkSafe and other prosecutors need to particularise each of the ‘failures’ in terms of the reasonable and practicable steps that it is alleged should have been taken in the charging documents that are filed; and
  • leave from a Judge needs to be sought by WorkSafe or the prosecutor if they wish to amend or expand upon those alleged failures after the filing of charging documents.

We predict this will mean that:

  • from an early stage, defendants should be more clearly informed of the details of the case that they are required to respond to. This should make it easier to decide on the plea to be entered and, where charges are to be defended, the scope of defence evidence that may need to be briefed;
  • where charges are initially not properly particularised, and guilty pleas are delayed as a consequence, there will be more scope to argue for greater discounts for guilty pleas than the timing of the pleas might otherwise warrant; and
  • in rare cases in which sufficient prejudice can be established as a consequence of charges not being properly particularised, it can be argued either that the prosecution should be held to the case that it originally brought or that charges should be dismissed.

Key facts of the case

The case involved a workplace accident at a vegetable processing plant operated by Talley’s in Ashburton. An employee was operating a forklift to stack empty bulk bins in near proximity to another employee. The bins on the forklift toppled backward and over the forklift cab, causing serious injury to the nearby employee.

The charging document filed by WorkSafe identified the time, date and place of the alleged offence, and the name of the employee concerned, but then simply stated that Talley’s had failed “to take all practical steps to ensure that [the employee] was not exposed to hazards arising out of the operation of a Yale forklift.” It was served on Talley’s together with a summary of facts that identified four steps that WorkSafe alleged it had failed to take.

Later in the proceedings, and after instructing an external expert, WorkSafe served an amended summary of facts with further particulars which, Talley’s said, represented a “vastly different and substantially increased series of allegations.” Among other things, Talley’s asked the Court to stay the prosecution, arguing that it was an abuse of process.

Talley’s was successful in that regard in the District Court and, although the charge was reinstated on appeal, the High Court was also critical of the charging practice:

[47] To fully and fairly inform the defendant of the substance of the offence that is alleged, the particulars must include identification of the act or omission that contravenes the statute. This may require less particularisation where the offence alleged consists of an act rather than an omission. The charging document in this instance informed the defendant only that they had allegedly failed to do some act(s), but not which act. The vague wording of the charging document results in an outcome where the defendant is not informed as to what they are required to defend; they must either guess the alleged failings, or attempt to defend perfection. Neither outcome is acceptable. The defendant must be informed of the particular failing so that they are able to prepare their case and identify any defences relevant to each failing.

In ruling that the charge should not have been stayed, the High Court held that the assessment, which requires significant prejudice to be established, is a contextual one and the insufficient particularisation was saved by the summary of facts (which the Court considered did fairly inform Talley’s of the omissions and in turn reduced the seriousness of the defect in the charging document).

This finding will mean that, where charges are accompanied by a detailed summary of facts, the courts are unlikely to entertain applications to stay the proceedings on process grounds. However, the High Court also held that WorkSafe’s case would be confined to the particulars set out in the original summary of facts and, if it wished to broaden the scope of the allegations, leave of the Court to amend the charge would be required.

A full copy of the decision can be found here.

How we can help

Our team has considerable experience dealing with WorkSafe investigations and prosecutions. If you would like to know more about the impact of this decision, or require advice in relation to health and safety matters generally, we would be happy to assist.