Citation: SafeWork NSW v Solveco Pty Ltd; SafeWork NSW v Brent Martin Lawson; SafeWork NSW v Tiberiu Orden (No. 1) [2021] NSWDC 298
Court: District Court of New South Wales
Date: 6 July 2021
Judge: Russell SC DCJ
Background
The proceedings arose from an incident on 31 July 2017 at a waste recycling depot in St Marys. A corporate defendant operated the depot, and the two individual defendants were its directors. All three were charged with failing to comply with work health and safety duties under the Work Health and Safety Act 2011 (NSW).
On the day of the incident, one worker was shredding aerosol cans, releasing a cloud of flammable gas. The prosecutor alleged that gas travelled approximately 20 metres along the ground to where a second worker was operating a pressure washer and hot water heater. When the second worker switched off the hot water heater, a spark allegedly ignited the gas, causing an explosion and fire. The first worker had fortunately moved away from the shredder moments before the explosion.
The original summonses identified only the second worker (who switched off the heater) as the person at risk. The prosecutor then applied to amend all three summonses to also identify the shredder operator as a worker exposed to the risk of serious injury or death. The defendants opposed the amendments, and a broader dispute emerged about the proper scope of the prosecution case.
Legal Issues
- Whether the court had power to grant leave to amend the summonses under s 20 of the Criminal Procedure Act 1986 (NSW), and whether that provision applied to summonses as well as indictments.
- How the discretion to grant leave to amend should be exercised, including the relevance of prejudice to the defendants.
- Whether the prosecution case, as opened, was already wide enough to encompass the risk to the shredder operator, having regard to both the summonses and the attached statements of facts.
Decision
The District Court first resolved the threshold question of whether s 20 of the Criminal Procedure Act 1986 (NSW) applied to summonses. Section 15 of that Act defines "indictment" to include "any other process or document by which criminal proceedings are commenced." The court held that s 20 therefore applied to summonses, giving it power to grant leave to amend.
On how that discretion should be exercised, the court drew on principles from Rajendran v R [2010] NSWCCA 322 and related authorities. The relevant considerations included: whether a fair trial remained possible; whether a defendant has a right to have the prosecution brought on a particular factual basis (the court confirmed no such right exists); whether amendment would occasion real prejudice; and whether the interests of justice and the public interest in WHS prosecutions favoured allowing the amendment.
Crucially, the court found that the prosecution case, read by reference to both the summonses and the attached statements of facts, had always been broad enough to encompass the risk to the shredder operator. The original pleadings were not confined to one worker; the statements of facts made the role of the shredder operator apparent throughout. Because the prosecution case had not in fact been widened, no genuine prejudice arose from the amendment.
The court also held, in the alternative, that even if the amendments had widened the case beyond the original pleadings, leave would still have been granted. No documents had been tendered and no witnesses had been called. Any residual prejudice could have been addressed by allowing the defendants time to reconsider their position and, if necessary, apply for an adjournment.
Orders Made
- Leave granted to the prosecutor to amend the summons in each of the three matters in the manner proposed in the annexures to the affidavit of Mr O'Connell dated 22 June 2021.
Key Takeaways
- Under s 15 of the Criminal Procedure Act 1986 (NSW), the word "indictment" encompasses any document by which criminal proceedings are commenced. The District Court confirmed this means s 20, which governs amendment of an indictment, applies equally to summonses.
- The scope of a prosecution case is to be assessed by reading the summons together with the attached statement of facts, not the summons alone. Where both documents together disclose the case against a defendant, a proposed amendment that merely brings the pleading into line with that case does not widen it.
- A defendant has no right to have a prosecution brought on a particular factual basis. This principle directly informed the court's conclusion that opposition to the amendments on that ground could not succeed.
- Where amendments to a summons are sought at an early stage of trial, before any witnesses or documents have been formally tendered, the public interest in prosecuting WHS Act offences weighs in favour of granting leave. Residual prejudice can typically be addressed through adjournment rather than refusal of the amendment.
- Sufficient certainty about the width of a prosecution case is itself a legitimate outcome of an amendment application. Resolving that question early in a trial serves the interests of both parties.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 19
- Criminal Procedure Act 1986 (NSW), ss 15, 20, 21, 63A, 246
- District Court Rules 1973 (NSW), r 53.26
Cases
- Rajendran v R [2010] NSWCCA 322
- R v Basha (1989) 39 A Crim R 337
- R v Lykouras [2005] NSWCCA 8
- R v Sepulveda [2003] NSWCCA 131