Citation: Orr v Hunter Quarries Pty Ltd (No. 2) [2020] NSWDC 307
Court: District Court of New South Wales
Date: 18 June 2020
Judge: Russell SC DCJ
Background
The defendant company owned and operated a hard rock quarry at Karuah, New South Wales, and employed a worker as a Leading Hand and Machine Operator. On 9 September 2014, the worker was operating an excavator on an uneven slope when it rolled over, fatally crushing him inside the cabin.
The defendant was charged under s 32 of the Work Health and Safety Act 2011 (NSW) with failing, as a person conducting a business or undertaking (PCBU), to comply with its duty under s 19(1) to ensure the health and safety of workers so far as reasonably practicable. In November 2019, the trial judge acquitted the defendant, finding that the prosecution had not proved all elements of the offence beyond reasonable doubt.
Following the acquittal, the prosecution sought to challenge the judgment by invoking the "stated case" procedure under s 5AE of the Criminal Appeal Act 1912 (NSW), asking the trial judge to refer 18 questions of law to the Court of Criminal Appeal. The defendant resisted, arguing the proposed questions were in substance factual challenges dressed up as questions of law.
Legal Issues
- Whether the 18 proposed questions constituted genuine questions of law suitable for referral under s 5AE of the Criminal Appeal Act 1912 (NSW)
- Whether the trial judge had correctly identified and applied the legal test under s 19 of the Work Health and Safety Act 2011 (NSW)
- Whether the trial judge had correctly construed and applied the definition of "reasonably practicable" under s 18 of the Act
- Whether the trial judge had correctly understood and applied the "hierarchy of control measures" under cl 36 of the Work Health and Safety Regulation 2011 (NSW)
- Whether the stated case procedure under s 5AE is an adequate mechanism for prosecution appeals from acquittals in the District Court's summary jurisdiction
Decision
The trial judge determined that questions 2 through 17 of the draft stated case, together with question 18, were genuine questions of law and should be referred to the Court of Criminal Appeal. On the question of whether the proposed questions were mere factual challenges, the court accepted the prosecution's framing: questions asking whether findings of fact "fell within the statute properly construed" represent a recognised category of legal error, not impermissible attacks on findings of fact.
On the construction and application of s 19 of the WHS Act, the court agreed that if it had failed to identify and apply the correct legal test, or had approached the section using a framework that did not accord with the statute, that would constitute an error of law. The court noted the prosecution's contention that the judgment had not used the correct "decision-making matrix" and that this question was sufficiently important to warrant referral.
Regarding cl 36 of the Regulation, the court recognised the hierarchy of control measures as a crucial concept appearing in almost every WHS prosecution, and found that any misunderstanding or misapplication of that provision would constitute an error of law with significance beyond this single case.
The judgment also addressed a procedural anomaly at some length. The prosecution had no right of appeal as of right against an acquittal in the District Court's summary jurisdiction. The only available mechanism was the cumbersome stated case procedure, which requires the prosecutor to return to the same judge alleged to have erred and seek that judge's approval of the stated errors. The court noted that the NSW Law Reform Commission identified this anomaly in its 2014 Report 140 and recommended extending prosecution appeal rights to the District Court's summary jurisdiction, but that recommendation had not been implemented.
Orders Made
- The prosecutor is directed to engross the stated case in the appropriate form for submission to the Court of Criminal Appeal.
- The prosecutor is directed to provide the stated case to the judge's Associate by 4pm on 25 June 2020.
- The transcript of the prosecutor's opening address and the prosecutor's written submission dated 7 June 2019 are to be appended to the stated case.
Key Takeaways
- Questions 2 to 18 in the draft stated case were held to be genuine questions of law, suitable for referral to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912 (NSW), even though the trial had already concluded and judgment had been delivered.
- A question framed as whether findings of fact "fall within the statute when properly construed" constitutes a recognised category of legal error, not merely a disguised factual challenge.
- Under s 5AE, the prosecution has no appeal as of right from an acquittal after a summary trial in the District Court; the stated case procedure is the only available mechanism, and the court noted its procedural awkwardness, including the requirement that the allegedly errant trial judge approve the formulation of its own alleged errors.
- The NSW Law Reform Commission recommended in 2014 that prosecution appeal rights from acquittals in summary jurisdiction be extended to the District Court, aligning it with the Supreme Court and the Land and Environment Court, but as at the date of this judgment that recommendation remained unimplemented.
- Misapplication of cl 36 of the Work Health and Safety Regulation 2011 (NSW), which governs the hierarchy of control measures, is capable of constituting an error of law, given its central role in WHS prosecutions generally.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 18, 19, 32
- Work Health and Safety Regulation 2011 (NSW), cl 36
- Criminal Appeal Act 1912 (NSW), s 5AE
- Crimes (Appeal and Review) Act 2001 (NSW), s 107
- Crimes Legislation Amendment Act 1998 (NSW), sch 4
Cases
- Orr v Cobar Management Pty Ltd [2019] NSWDC 796
- Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FLR 410