Citation: SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 526
Court: District Court of New South Wales
Date: 5 October 2021
Judge: Scotting DCJ
Background
The defendant company faced a prosecution under s 32 of the Work Health and Safety Act 2011 (NSW) following a fatal incident at a building site in Shoal Bay on 16 February 2018. A contractor, Mr Edwards, climbed onto a load of timber piles approximately 2400mm above the ground to attach lifting slings to an excavator arm. He fell, suffered a serious head injury, and died. A worker employed by the defendant, Mr Williams, had also stepped onto part of the trailer during the unloading operation.
The prosecution alleged that the defendant failed to take four reasonably practicable measures: implementing a safe work method for loading and unloading heavy vehicle combinations; providing adequate instruction and training on that method; providing adequate supervision; and consulting with Mr Edwards to enforce the safe work method. The Summons used "and/or" in several places when describing these measures and the persons exposed to risk.
Two days into the trial, after the evidence had been completed, the defendant applied for a permanent stay of proceedings. It argued the use of "and/or" in the Summons rendered the charge duplicitous or so uncertain as to be incapable of cure, and that any amendment would cause irreparable prejudice to its defence.
Legal Issues
- Whether the use of "and/or" in the Summons rendered the charge duplicitous or uncertain so as to constitute an abuse of process.
- Whether the defendant had suffered, or would suffer, actual prejudice from the pleading as drafted.
- Whether, if the pleading was defective, a non-controversial amendment should be granted.
- Whether the proceedings should be permanently stayed.
Decision
Scotting DCJ began by reaffirming the well-established threshold for a permanent stay: such relief is available only in the most exceptional circumstances, where there is a fundamental defect going to the root of the trial that no curative step can remedy. The court is required to balance the interests of the accused, the public interest in bringing serious offences to trial, and the need to maintain confidence in the administration of justice.
On the duplicity and uncertainty argument, the court acknowledged that "and/or" is a notoriously problematic drafting choice in pleadings. It can generate an almost endless series of permutations and combinations of allegations, which is why courts across jurisdictions have repeatedly criticised its use. However, the court found that, in context, the conjunction did not create genuine uncertainty in this charge. The court analysed each instance of "and/or" in the Summons and concluded that the words in the specific paragraphs under challenge either conveyed a clear disjunctive meaning (one or the other, or both) or were used in a way that did not alter the substance of the allegations against the defendant.
Critically, the court found no demonstrated prejudice to the defendant. The defendant had not sought particulars at any pre-trial stage, had not objected to the evidence as it was led, and raised the issue only on the second day of trial after the evidence was complete. The court noted that the case was factually straightforward: the prosecution's case was that the defendant failed to implement a safe work method, train its workers, supervise them, and consult with its contract drivers. The evidence on those matters was clear and the defendant had been able to meet it.
The court also addressed the prosecutor's proposed amendment in the alternative, finding it workable in principle, even though it contained several drafting problems. The court was satisfied those problems could be remedied without causing prejudice to the defendant. In the result, the application for a permanent stay was refused.
Orders Made
- The defendant's application for a permanent stay is refused.
Key Takeaways
- A permanent stay of criminal proceedings remains an exceptional remedy, available only where a fundamental defect goes to the root of the trial and no curative measure can relieve the unfairness: Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23.
- Use of "and/or" in a pleading is not automatically fatal. The District Court found that the conjunction must be examined in context to determine whether it actually creates duplicity or prejudicial uncertainty, rather than condemned on its face alone.
- Where a defendant fails to seek particulars before trial, does not object to evidence as it is led, and raises a pleading defect only after evidence is complete, that conduct is relevant to whether actual prejudice has been demonstrated.
- Under s 233 of the Work Health and Safety Act 2011, multiple contraventions of a health and safety duty provision arising from the same factual circumstances may lawfully be charged as a single offence, a provision directly relevant to assessing whether a consolidated WHS charge is improperly duplicitous.
- Even where a pleading contains "and/or" defects capable of being characterised as embarrassing, a court may grant leave to amend rather than stay proceedings, provided any amendment does not cause prejudice to the defendant.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 32, 233
- Criminal Procedure Act 1986 (NSW)
- District Court Rules 1973 (NSW), r 53.26(3)
Cases
- Walton v Gardiner (1993) 177 CLR 378
- Jago v District Court (NSW) (1989) 168 CLR 23
- Barton v The Queen (1980) 147 CLR 75
- Williams v Spautz (1992) 174 CLR 509
- Barron v Attorney-General (1987) 10 NSWLR 215
- In the matter of Moage Ltd (in liquidation); Moage Ltd (in liquidation) v Joseph Grant Jagelman and Others [1998] FCA 296
- Fadden v Federal Commissioner of Taxation (1943) 68 CLR 76
- St Clair v Timtalla Pty Ltd and another (No 2) [2010] QSC 480
- Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344
- Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676
- Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015
- Veysey v R (2011) 33 VR 277
- Rajendran v R [2010] NSWCCA 322
- S v The Queen (1989) 168 CLR 266
- Johnson v Miller (1937) 59 CLR 467