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Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Changing the wording of charges

Changing the wording of charges
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New Zealand

A recent High Court decision has been cited by a defendant facing health and safety charges in a partially successful attempt to prevent changes to the wording of the charges 18 months after they were laid, and only two months before a scheduled trial.

The High Court decision in May allowed charges brought by WorkSafe against Talley’s Group Ltd to proceed in the District Court despite WorkSafe not having specified the detail of the charges in the charging documents filed in court – instead, the detail was provided later in a Summary of Facts. The High Court frowned on this practice and warned the regulator to do better, but determined there was no miscarriage of justice.

In a separate technical decision in October, The Helicopter Line (THL) has been partially successful in challenging the Civil Aviation Authority’s bid to amend charges it laid under the HSE Act in March 2015 following a heli-skiing crash in 2014.

In 2017 THL applied under s133 of the Criminal Procedure Act 2011 to amend the charging documents so that they included the practicable steps set out in the Summary of Facts, which had also been issued in March 2015, but omitting one step which THL regarded as not practicable.

This prompted CAA to issue its own application under s133 to amend the charging documents with a more detailed set of practicable steps than those originally set out in the Summary of Facts.

The court disagreed with THL’s assertion that one SoF step was not practicable, and then went on to look at CAA’s application and THL’s objection that CAA was seeking to substantially alter the practicable steps set out in the SoF, in some cases in such a way as to require THL to reconstruct its prepared case in defence.

The practicable steps concerned matters of weight and balance in helicopter operations, and of pilot training and systems auditing.

The court found CAA was seeking to make “substantive changes” to the practicable steps set out in the SoF, and that two of the changes changed the thrust of CAA’s case to the extent they would have been prejudicial to CAA’s ability to prepare its defence. Also, these changes were proposed a long time after the charges were laid.

“The CAA maintains that the amendments sought do not deviate from the SoF. Now, two and a half years since charges were initially laid, the CAA is in fact seeking amendments that substantively alter the particulars as originally contained in the SoF.”

They also incorporated evidence obtained from experts outside the limitation period for laying charges, namely six months after the incident occurred.

The court determined that all but two of CAA’s proposed amendments to the charges could proceed. In the case of those two, the original wording would be retained (Queenstown DC, 4 October 2017).

This case is also notable for being – so far as Safeguard is aware – the first time CAA has used its delegated authority to bring charges under health and safety legislation.



Organisations Mentioned:
Civil Aviation Authority; The Helicopter Line; Talley's Group
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From Alert24 - Safeguard Update

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