Chapter heading 1

RECOMMENDATION 68

Subject to wider criminal justice policy considerations, the model Act should provide for the promulgation of sentencing guidelines or, where there are applicable sentencing guidelines, they should be reviewed for national consistency and compatibility with the OHS regulatory regime.

Chapter 17: Avoiding duplicity & Double Jeopardy

Avoiding duplicity

Current arrangements

1. 
   Under the criminal law rule against duplicity, a prosecutor may not ordinarily charge in one count of an indictment, information or complaint, two or more separate offences provided by law.³⁶⁰ There are some provisions in OHS laws that address this issue.³⁶¹
   

Stakeholder views

2. 
   There was limited comment on this point,³⁶² but the issue is undoubtedly of significance for the effective application of the law.
   

Discussion

3. 
   Unless modified, the rule could complicate the prosecution of OHS offences and may impede a court’s understanding of the nature of a defendant’s failure to meet the particular duty of care at issue. For example, the duplicity rule might prevent a charge from including all the information about how a defendant failed to meet the duty of care ­in respect of a work environment, process or arrangement. This is particularly unsatisfactory where the offending acts or omissions occur on a continuing basis. Presenting only one aspect of the defendant’s failure may deprive the court of an opportunity to appreciate the seriousness of the failure and may result in inappropriate or insufficient penalties and orders upon conviction.  We also consider that it is not desirable that there be the cost and delay inherent in litigation over such matters.³⁶³
   
4. 
   We agree with the Maxwell Review that there should be no legal obstacle to laying a single information containing particulars that refer to more than one instance of a breach of a duty of care.³⁶⁴ The same applies to any other initiating documents or prosecutions.
   
5. 
   Accordingly, care should be taken in the model Act to ensure that more than one breach of a duty of care provision may be alleged in a single paragraph of an information or count of an indictment in relation to duties of care. Examples of such provisions are provided by s.164 of the Qld Act, s.31 of the NSW Act and s.33 of the Vic Act.
   
6. 
   The same principle should apply to proceedings in relation to the other obligations that are to be covered by our second report.