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District Court 14 June 2019

SafeWork NSW v AKA Civil Australia Pty Ltd

[2019] NSWDC 257

Other
CRIMINAL LAW PROSECUTION WORK HEALTH AND SAFETY DUTY OF PERSONS UNDERTAKING BUSINESS FUNCTIONS OF INDICTMENT FAIR TRIAL

Citation: SafeWork NSW v AKA Civil Australia Pty Ltd [2019] NSWDC 257
Court: District Court of New South Wales
Date: 14 June 2019
Judge(s): Russell SC DCJ

Background

The defendant company was prosecuted under section 19(2) and section 32 of the Work Health and Safety Act 2011 (NSW) following an incident on 7 January 2016 at Lane Cove, where the front façade of a building being demolished collapsed onto the Pacific Highway. No person was injured in the collapse itself, but the prosecution alleged that a risk of death or serious injury to members of the public had existed throughout the demolition operation, which ran from approximately 10.00am until the façade fell at approximately 11.15am.

The defendant filed a Notice of Motion seeking to quash the Summons, or alternatively to have the proceedings permanently stayed or dismissed. Two distinct grounds were advanced: first, that the particulars in the Summons imposed an absolute duty rather than the qualified "so far as is reasonably practicable" duty prescribed by the Act; and second, that the Summons failed to identify with sufficient particularity the person or persons allegedly put at risk.

In response to the first ground, the prosecutor applied for leave to amend the Summons. The court was therefore required to resolve both the amendment application and the defendant's motion.

  • Whether the Summons, by omitting the phrase "so far as is reasonably practicable" from its particulars, imposed a higher standard than the Act requires and thereby constituted a serious defect warranting the proceedings being quashed.
  • Whether the proposed amendment to the Summons to cure that defect would cause the defendant prejudice or injustice.
  • Whether the Summons disclosed with sufficient particularity the identity of the persons allegedly put at risk, or whether that omission was a defect so fundamental as to warrant quashing or a permanent stay.
  • Whether the continuation of the proceedings would constitute an abuse of process warranting a permanent stay.

Decision

On the amendment to remove the absolute duty language: The court accepted that particulars framed without the "so far as is reasonably practicable" qualifier imposed a standard the Act does not require, consistent with the earlier District Court decision in SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290. The prosecutor sought and was granted leave to amend the Summons under section 21 of the Criminal Procedure Act 1986 (NSW). The court was satisfied that the amendment could be made without injustice to the defendant, applying the principles confirmed by the Court of Criminal Appeal in Borodin v R [2006] NSWCCA 83.

On the identification of persons put at risk: The court held that the prosecution was not required to name specific individuals. Drawing on the English decision in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and the principle that the offence is constituted by the creation of the risk rather than any actual injury, the court found that it was sufficient for the Summons to identify a class of persons: members of the public who had been adjacent to the demolition site during the operation. The prosecution's case was that a risk of collapse existed throughout the entire period from 10.00am to 11.15am, not merely at the moment the façade fell.

On the motion to quash or stay: The court declined to quash the proceedings or grant a permanent stay. Once the amendment was permitted, the Summons as amended adequately disclosed the case the defendant was required to meet. The defendant had access to the Statement of Facts and the amended particulars, and the court was satisfied it understood the prosecution case. No abuse of process or unacceptable injustice was established.

The court did observe that the Summons could have been drafted more clearly by specifying the start and end times of the risk period, noting that the Science Museum indictment had specified beginning and end dates. This observation was offered as practical guidance for future drafting rather than as a finding of defect.

Orders Made

  • Leave granted to the prosecutor to amend the Summons in accordance with MFI 5.
  • Defendant's Notice of Motion filed 11 March 2019 dismissed.
  • Costs reserved, to be heard by the parties further.

Key Takeaways

  • A summons or indictment in a WHS prosecution that omits the "so far as is reasonably practicable" qualifier from its particulars imposes an absolute standard the Act does not require, and this constitutes a defect. However, the defect may be cured by amendment under section 21 of the Criminal Procedure Act 1986 (NSW), provided no injustice results.

  • Under the Work Health and Safety Act 2011 (NSW), it is the creation of a risk that constitutes the offence; a prosecution need not prove that any individual was actually harmed or was present at the precise moment of an incident.

  • The District Court confirmed that a prosecution under the WHS Act may identify persons put at risk by reference to a class (such as members of the public adjacent to a worksite) rather than named individuals, provided the class is sufficiently nominated.

  • A permanent stay of criminal proceedings remains an exceptional remedy, available only where continuation would involve unacceptable injustice and no trial management measures could relieve against the unfairness. The onus rests on the applicant to establish that threshold.

  • Prosecutors drafting WHS summonses are well served by specifying the temporal boundaries of the alleged risk period, as the absence of such detail, while not necessarily fatal to a prosecution, can obscure the nature of the case the defendant must meet.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 19(2), 19(3), 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] HCA 1; (2010) 239 CLR 531
- R v Board of Trustees of the Science Museum [1993] 1 WLR 1171; [1993] 3 All ER 853
- SafeWork NSW v Freyssinet Australia Pty Ltd [2017] NSWDC 290
- SafeWork NSW v Hetherington [2019] NSWDC 11
- Borodin v R [2006] NSWCCA 83
- Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
- Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23
- Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75
- Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509
- John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
- R v Janceski [2005] NSWCCA 288; (2005) 64 NSWLR 10
- S v The Queen [1989] HCA 66; (1989) 168 CLR 266
- Walsh v Tattersall [1996] HCA 26; (1996) 188 CLR 77
- Barron v Attorney-General (1987) 10 NSWLR 215
- Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94
- Boland v Safe is Safe Pty Limited [2017] SAIRC 17