Citation: SafeWork NSW v Williams Timber Pty Ltd; SafeWork NSW v Easy Fall Guttering Pty Ltd [2021] NSWCCA 233
Court: Court of Criminal Appeal (NSW)
Date: 1 October 2021
Judges: Beech-Jones CJ at CL; R A Hulme J; Wilson J
Background
SafeWork NSW prosecuted two companies separately in the District Court for offences under the Work Health and Safety Act 2011 (NSW). The first respondent, a timber company, had employed a worker who suffered a partial hand amputation in a milling accident. The second respondent, a guttering contractor, had engaged a contractor who fell from a roof and sustained serious spinal injuries. Both companies pleaded guilty.
In each case, SafeWork sought an order at sentence for the respondent to pay the prosecutor's costs pursuant to s 275B of the Criminal Procedure Act 1986 (NSW). In the Williams Timber matter, the parties had in fact agreed on a costs figure of $22,000, and neither party had made submissions opposing a costs order. Despite this, the sentencing judge declined to make a costs order in either matter, citing each company's limited capacity to pay.
SafeWork appealed both refusals to the Court of Criminal Appeal under s 5AA(1)(b) of the Criminal Appeal Act 1912 (NSW). The appeals were heard together because they raised the same legal issue.
Legal Issues
- Whether the sentencing judge erred in characterising costs as part of the punishment of the defendant, rather than as compensation to the prosecutor.
- Whether the failure to alert the parties that the court was considering making no costs order constituted a denial of procedural fairness.
- Whether there was sufficient evidence of each respondent's limited financial capacity to justify refusing a costs order.
- Whether the sentencing judge gave adequate weight to the agreed costs figure in the Williams Timber matter, where the defendant had not opposed a costs order.
- Whether, even if error were established, the Court of Criminal Appeal should exercise its residual discretion to decline to intervene.
Decision
The Court of Criminal Appeal found that the sentencing judge did err in at least one respect in each matter. The characterisation of costs as an aspect of the defendant's punishment was incorrect: the purpose of a prosecutor's costs order is compensatory, not punitive. The court also found, in the Williams Timber matter particularly, that a denial of procedural fairness arose because the sentencing judge did not alert the parties to the possibility of making no costs order, depriving SafeWork of any opportunity to address that prospect.
Despite identifying these errors, the Court declined to intervene in either case. The decisive factor was that SafeWork had not appealed the fines imposed on the respondents, only the refusal to make costs orders. The sentencing judge had clearly sought to limit the total financial burden on each respondent in light of their means. Had the Court simply ordered the respondents to pay costs without any corresponding reduction in their fines, the total amount payable would have exceeded what the sentencing judge had intended, producing an outcome unfair to the respondents.
The Court accepted that this result was essentially equivalent to the sentencing judge imposing a lower fine and making a costs order, or a higher fine with no costs order. The total financial outcome was the same either way. Because no appeal had been brought against the fines, correcting only the costs refusal would effectively punish the respondents beyond what the original sentencing exercise contemplated.
The Court also rejected SafeWork's application to read new affidavit evidence in the Easy Fall matter to prove consent to a specific costs figure. That material had not been before the District Court and was unnecessary to resolve the appeal.
Orders Made
- Appeal dismissed in SafeWork NSW v Williams Timber Pty Ltd.
- Appeal dismissed in SafeWork NSW v Easy Fall Guttering Pty Ltd.
Key Takeaways
- A prosecutor's costs order under s 275B of the Criminal Procedure Act 1986 is compensatory in nature, not a component of punishment. Treating it as part of the penalty imposed on a defendant is a legal error.
- Where a sentencing court is contemplating departing from the agreed or uncontested position on costs, procedural fairness requires that the parties be given an opportunity to address that possibility before the decision is made.
- In dismissing both appeals, the Court of Criminal Appeal exercised a residual discretion to decline to correct the identified errors. This was because the fines had not been challenged on appeal, and simply adding a costs order without reducing the fines would have unfairly increased the respondents' overall financial burden beyond what the sentencing judge had intended.
- The absence of a cross-appeal or appeal against sentence can limit the scope of effective appellate correction, particularly where the sentencing court has treated the financial components of the sentence as a holistic package.
- New evidence not before the original sentencing court will not ordinarily be admitted on a costs appeal of this kind, where the appellate court can properly determine the matter from the existing record.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5AA
- Criminal Procedure Act 1986 (NSW), s 275B
- Fines Act 1996 (NSW), ss 6, 122
- Work Health and Safety Act 2011 (NSW), s 32
Cases
- Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
- Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd (2017) 93 NSWLR 338; [2017] NSWCCA 96
- Re Minister for Immigration & Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
- SafeWork NSW v Easy Fall Guttering Pty Limited [2021] NSWDC 44
- SafeWork NSW v Williams Timber Pty Ltd [2020] NSWDC 777
- Weir v R [2011] NSWCCA 123