A series of cases before the Victorian Court of Appeal have recently considered the adequacy of the particulars of a charge in regulatory prosecutions. These include Fox v DPP (2022) 66 VR 223 and DPP v Babacan (a pseudonym) [2024] VSCA 228. These decisions have been watched closely, especially in occupational health and safety matters.

The latest pronouncement from the Court of Appeal came last month – squarely in an OH&S matter – in Greater Shepparton City Council v Magistrates’ Court of Victoria [2025] VSCA 33. The Court of Appeal unanimously confirmed that deficient particulars will not necessarily make a charge invalid, and that a charge – even if invalid – may be capable of amendment after the expiration of the limitation period.

What the law requires

A charge-sheet commences a criminal proceeding, and must comply with the drafting requirements contained in Schedule 1 of the Criminal Procedure Act 2009 (Vic).[1]

Clause 1 of Schedule 1 requires a charge to state the offence that the accused is alleged to have committed and contain the particulars necessary to give reasonable information as to the nature of the charge.

A charge will not be automatically invalid only because it does not comply with Schedule 1.[2] Where the charge fails to disclose an offence known to law, it is ineffective and cannot properly found a conviction, but the deficiency may be capable of remedy by amendment.[3]

The facts in Greater Shepparton

The applicant was charged by WorkSafe with contravening s 23 of the Occupational Health and Safety Act 2004. The particulars of the charge are set out at [8] of the Judgment.

The prosecution arose from an incident where a gas torch and kerosene were used to clear a blocked pipe used to move hot bitumen. This was alleged to be an inherently risky activity.

The applicant (accused) contended at first instance and on appeal that the charge was defective, and was incapable of amendment because the limitation period had expired. WorkSafe contended that the charge contained adequate particulars, but alternatively sought leave to amend the charge.[4]

What the offence required

The elements of s 23 are that:[5]

• The accused is an employer;
• There was a risk to the health and safety of persons other than the accused employees, which arose from the accused’s undertaking;
• There was a measure, or measures, that would have reduced that risk;
• It was reasonably practicable for the accused to implement the identified measures; and
• The accused failed to implement those measures.

The applicant contended that the third and fourth elements were not sufficiently particularised in the charge.

Decision

Adequacy of particulars

The Court noted the following principles:

1. The common law elucidates what is ‘reasonable information’ for a charge (at [33]-[34]).
2. The High Court decision in Kirk[6] did not render invalid a charge under s 23 that fails to adequately particularise what measures are said to be reasonable (at [37]ff).
3. It was not necessary in all cases for WorkSafe to specify the manner in which an outcome (mitigating risk) ought to have been achieved (at [42]-[43]).
4. An adequately particularised charge will provide sufficient information about the acts or omissions of the accused said to constitute the offence; it is not assessed by whether the accused has sufficient information for a fair trial (at [44]-[45]).

In this case, the Court said that the mechanism for reducing risk was specific: ensure that a gas torch is not used to unblock the pipe; that was what the particulars stated, and it was sufficient (at [47]-[48]).

Amending a charge after close of limitation period

A magistrate can allow a charge – even an invalid charge – to be amended after the expiry of a limitation period to have add any missing ingredient to the particulars (at [58]-[61]). This is provided that the stipulations in ss 8(3) and (4) of the Criminal Procedure Act 2009 are met.

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[1]       Criminal Procedure Act 2009 (Vic), s 6(3).

[2]       Criminal Procedure Act 2009 (Vic), s 9(1); Fox, [13]-[15], [30], [37].

[3]       Fox, [52], [54], [73].

[4]       The Court disapproved the approach taken by WorkSafe in this respect: see [71].

[5]       Greater Shepparton City Council v Magistrates’ Court of Victoria [2025] VSCA 33, [15].

[6]       Kirk v Industrial Court (NSW) (2010) 239 CLR 531.