Citation: SafeWork NSW v Kayrouz Constructions Pty Limited [2020] NSWDC 77
Court: District Court of New South Wales
Date: 3 April 2020
Judge(s): Russell SC DCJ
Background
A plumber suffered serious injuries on a Kogarah construction site in November 2016 when copper pipes he was lifting made contact with energised overhead power lines. The principal contractor, a construction company, was charged by SafeWork NSW under sections 19 and 32 of the Work Health and Safety Act 2011 (NSW) with failing to comply with its health and safety duty in a way that exposed workers to a risk of death or serious injury.
The prosecution's summons attached a schedule of particulars setting out seven specific measures the company allegedly failed to take, including conducting a risk assessment, preparing a Safe Work Method Statement, and providing adequate supervision. Critically, the particulars were pleaded in the alternative: the prosecution alleged the company failed to take "one or more" of those seven measures.
The company pleaded guilty in November 2019, but the parties could not agree on a statement of facts. The company filed affidavit evidence contesting four of the seven particularised failures, while conceding three. The prosecution argued the guilty plea was an unconditional admission of all seven particulars. That dispute was the subject of this judgment.
Legal Issues
- Whether a guilty plea to a WHS offence under sections 19 and 32 of the Work Health and Safety Act 2011 (NSW) constitutes an admission of every particular of reasonably practicable measures pleaded in the summons, or only of the essential elements of the offence.
- Whether the defendant's affidavit evidence contesting some of those particulars was admissible in the sentencing proceedings.
Decision
Russell SC DCJ identified the four elements of the offence: that the defendant was conducting a business or undertaking; that it owed a relevant health and safety duty; that it failed to comply with that duty; and that the failure exposed an individual to a risk of death or serious injury. A guilty plea admits only those matters that are the essence of the charge, not non-essential ingredients. This principle is established in R v O'Neill (1979), confirmed in Duffy v R (2009), and supported by the High Court's statement in GAS v The Queen (2004) that facts beyond what is necessarily involved in the elements of the offence must be proved by evidence or formally admitted.
The court held that the seven particularised failures were not elements of the offence. Because the prosecution had pleaded those particulars in the alternative ("one or more"), the company's guilty plea admitted that it had failed to comply with its duty in at least one of those ways. The plea did not amount to an admission of every single particular listed.
Admitting three of the seven particularised failures was sufficient to sustain the guilty plea, since even one failure would have sufficed for a verdict of guilty had the matter gone to trial. The company was therefore entitled to contest the remaining four particulars at the sentencing hearing. The court drew an analogy with the High Court's decision in Strbak v The Queen (2020), where a defendant pleaded guilty to manslaughter while contesting the factual basis for the prosecution's primary case.
The court permitted the company to rely on its affidavit evidence and directed the parties to prepare a joint schedule of agreed and contested facts for use at the sentence hearing.
Orders Made
- The defendant is permitted to rely upon the affidavit evidence already filed, subject to any specific objections to that evidence.
- The prosecutor and the defendant are directed to file a Joint Schedule of Agreed and Contested Facts by 4 May 2020.
- The matter is listed for directions at 9.30am on 11 May 2020, with a view to fixing a sentence hearing date.
Key Takeaways
- A guilty plea to a WHS offence under the Work Health and Safety Act 2011 (NSW) admits only the essential elements of the offence, not every factual particular set out in the summons or charge particulars.
- Where a prosecution pleads reasonably practicable measures in the alternative (using "one or more" language), a defendant who admits sufficient particulars to sustain the plea may still contest the remaining particulars at sentencing.
- The District Court confirmed that any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, formally admitted, or agreed in a statement of facts, consistent with the High Court's approach in GAS v The Queen.
- Contested particulars at sentencing are not merely procedural: the court noted that the specific failures ultimately established will directly affect the assessment of the objective seriousness of the offence, which carries weight in penalty.
- Relying on Strbak v The Queen [2020] HCA 10, the court treated the approach of admitting elements while contesting underlying facts as recognised and not unorthodox in criminal sentencing proceedings.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32
Cases
- R v O'Neill [1979] 2 NSWLR 582
- Duffy v R [2009] NSWCCA 304
- GAS v The Queen; SJK v The Queen [2004] HCA 22; (2004) 217 CLR 198
- Strbak v The Queen [2020] HCA 10