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District Court 11 February 2019

SafeWork NSW v Neville George Hetherington

[2019] NSWDC 11

Other
CRIMINAL LAW PROSECUTION WORK HEALTH & SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS PLEADINGS STRIKE OUT

Citation: SafeWork NSW v Neville George Hetherington [2019] NSWDC 11
Court: District Court of New South Wales
Date: 11 February 2019
Judge: Scotting DCJ

Background

A worker named Cecil Wilkinson was engaged as a dogman on a roofing project in Corowa on 21 May 2016. He was working on the roof when he fell through a section that could not support his weight, dropping six metres to a concrete floor and sustaining injury. At the time, no one present warned him that certain parts of the roof were unsafe to stand on.

The roofing contractor was Hetherington Plumbing Services Pty Ltd (HPS), which had engaged a crane company to assist with the project. SafeWork NSW brought two separate prosecutions: one against HPS as the person conducting a business or undertaking (PCBU) under section 19(1) of the Work Health and Safety Act 2011, and one against the defendant as an officer of HPS under section 27 of the same Act. The charge against the defendant alleged that, as an officer, he failed to exercise due diligence to ensure HPS complied with its health and safety duty, thereby exposing Mr Wilkinson to a risk of death or serious injury.

The defendant applied to have the charge quashed on the basis that the Summons failed to disclose an offence known to the law. Alternatively, he sought a permanent stay of the prosecution. The central dispute was whether the particulars of breach in the Summons were adequate to support an officer liability charge distinct from the PCBU charge against HPS.

  • Whether the Summons disclosed a valid charge known to the law, or whether it should be quashed for serious defects on its face
  • Whether a permanent stay of the prosecution was warranted on abuse of process grounds
  • Whether the particulars pleaded against the defendant as officer (under section 27) were appropriate and distinct from those pleaded against HPS as PCBU (under section 19)
  • Whether deficient particulars could be cured by amendment under section 21 of the Criminal Procedure Act 1986

Decision

Application to quash: Scotting DCJ declined to quash the Summons. While some particulars were found to be deficient, the defects did not rise to the level of a serious facial defect that would invalidate the charge. The court noted that a Summons serves critical functions, including informing the accused of the substance of the charge and the factual ingredients they must meet, and enabling the court to determine what evidence is relevant. Those core functions were not so fundamentally undermined as to warrant quashing.

Application for permanent stay: The court also refused the stay application. A permanent stay is reserved for the most exceptional circumstances, requiring a fundamental defect going to the root of the trial that no trial judge could remedy. The defendant did not establish that level of prejudice or unfairness here.

Adequacy of the particulars: The court examined each sub-paragraph of the particulars in paragraph 14 of the Summons. Some particulars were found capable of supporting an officer liability allegation, including those relating to the defendant's failure to instruct workers to wear safety harnesses attached to anchor points and his failure to supervise workers on the roof. Others were found to fall short of the requirements established in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, which requires the prosecution to identify the specific measures that should have been taken and to prove them beyond reasonable doubt. Paragraphs 14(a) and 14(f) were struck out as inadequate, and portions of other sub-paragraphs were struck out for the same reason.

Amendment: Because the defendant had not yet entered a plea and the defects were not fundamental, the court granted leave for SafeWork NSW to replead the struck-out particulars. The court found the case had sufficient merit to proceed and that amendment could be made without injustice to the defendant.

Orders Made

  • Paragraphs 14(a) and 14(f) of the Summons were struck out
  • Leave granted to the prosecutor to replead the allegations in paragraphs 14(a) and 14(f)
  • Leave granted to the prosecutor to replead the allegations in paragraphs 14(b) and 14(c), if so advised
  • Specified italic words within each sub-paragraph of paragraph 14 (as identified at paragraph 53 of the judgment) were struck out
  • The prosecutor was directed to file and serve an Amended Summons by 5pm on 23 February 2019
  • Costs to be heard separately

Key Takeaways

  • Under the Work Health and Safety Act 2011, the duties of a PCBU under section 19 and an officer under section 27 are distinct, even if the facts underlying an alleged breach may overlap. Particulars must be framed to reflect the officer's own due diligence obligations, not simply mirror the PCBU charge.

  • The District Court confirmed that Kirk v Industrial Court of New South Wales requires the prosecution to identify, with sufficient specificity, the particular measures the defendant should have taken. Vague or conclusory particulars that do not specify how a duty was to be discharged will not satisfy this standard.

  • A Summons will only be quashed where it contains a serious defect on its face. Deficiencies in particulars that fall short of that threshold, and that can be cured by amendment without injustice, do not warrant quashing.

  • Permanent stays of criminal proceedings remain a remedy of last resort, available only where there is a fundamental defect going to the root of a fair trial that no judicial management during the trial could remedy.

  • Where a defendant has not yet entered a plea and the merits of the case are otherwise sound, courts retain power under section 21 of the Criminal Procedure Act 1986 to permit amendment of a deficient Summons rather than terminate the prosecution.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 7, 19, 27, 32
- Criminal Procedure Act 1986 (NSW), ss 15, 16, 17, 21
- Occupational Health and Safety Act 2000 (NSW)

Cases
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Baiada Poultry Pty Ltd v R (2012) 246 CLR 92
- Jago v District Court (NSW) (1989) 168 CLR 23
- Barton v The Queen (1980) 147 CLR 75
- John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
- S v The Queen (1989) 168 CLR 266
- Walsh v Tattersall (1990) 188 CLR 77
- Walton v Gardiner (1993) 177 CLR 378
- Williams v Spautz (1992) 174 CLR 509
- R v Janceski (2005) 64 NSWLR 10
- Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94
- Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304
- Barron v Attorney-General (1987) 10 NSWLR 215
- R v Rushton [1967] VR 842
- Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
- Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171