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District Court 23 December 2021

SafeWork NSW v BSA Limited

[2021] NSWDC 710

Public order & justice offences
CRIMINAL PROCEDURE APPLICATION TO AMEND SUMMONS ADEQUATE EXPLANATION UNFAIR PREJUDICE FAIR TRIAL STAGE OF PROCEEDINGS

Citation: SafeWork NSW v BSA Limited [2021] NSWDC 710
Court: District Court of New South Wales
Date: 23 December 2021
Judge: Russell SC DCJ

Background

The proceedings arose from a fatal incident on 14 December 2018 at a residential property in Malabar, Sydney. BSA Limited, a technical services company specialising in satellite television equipment installation, had been charged by Summons filed in December 2020 with breaching its primary health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW). The charge alleged that BSA's failure to comply with that duty exposed workers, including Jayden Hooper and Amber McKenzie, to a risk of death or serious injury from electrical hazards. Mr Hooper died on 14 December 2018, and his death was pleaded as a manifestation of that risk.

In November 2021, SafeWork NSW filed a Notice of Motion seeking leave to amend the Summons. The proposed amendments targeted particulars 9(g) and 9(h), which concerned what information, training, instruction, and supervision BSA should have provided to Mr Hooper before he commenced the relevant work. Most of the proposed changes to existing particular 9(g) were described as clarifications of the original language. The genuinely new additions were particular 9(g)(iv) and the whole of 9(h), both focused on a GPO (power point) tester, a device used to check electrical outlets.

The motion was made returnable on 25 November 2021, the same date on which BSA's own motion to set aside subpoenas had already been listed for hearing. BSA had not had sufficient time to absorb the amendment application, and the proceedings were adjourned. The motion for amendment was ultimately heard on 16 December 2021.

  • Whether the court should grant leave under s 20 of the Criminal Procedure Act 1985 (NSW) to amend the Summons.
  • Whether the proposed amendments introduced new and distinct factual allegations that would cause unfair prejudice to BSA, including any prejudice arising from the absence of committal proceedings in relation to the new particulars.
  • Whether any such prejudice could be addressed through procedural mechanisms, including a Basha inquiry (a pre-trial hearing allowing cross-examination of new prosecution witnesses).
  • What costs orders were appropriate in light of the prosecutor's conduct in bringing the motion without adequate notice.

Decision

Russell SC DCJ granted leave to amend the Summons. The court drew on the Court of Criminal Appeal's approach in R v Sepulveda, R v Lykouras, and Rajendran v R, which established that the primary consideration in exercising the discretion under s 20 is whether the accused would be unfairly prejudiced, and whether any such prejudice can be overcome by another procedure. The court found that the test for granting leave is not simply whether prejudice exists, but whether prejudice exists that cannot be adequately remedied.

On the question of prejudice, the court accepted that the additional particulars concerning the GPO tester introduced new factual territory. However, the prosecution evidence supporting the new particulars had been in the hands of BSA's lawyers for some time, and BSA had engaged its own experts. The trial date was in May 2022, leaving several months for further investigation. The court was satisfied that any remaining prejudice could be addressed through a Basha inquiry if BSA required one, and that the case for amendment was strong enough that BSA should have consented to it.

On costs, the court found the prosecutor's conduct in filing and returning the amendment motion on 25 November 2021 without proper notice to be unacceptable. That date had already been set aside for BSA's subpoena motion. The prosecutor made no application to relist the matter with leave and gave the defendant little or no notice, causing the defendant's costs of that day to be entirely wasted. The court described this as inappropriate, noting that parties should not file motions on inadequate notice and assume their motion will displace time set aside for the other side's hearing.

On the costs of the amendment motion itself, the court took a different view. Because the case in favour of amendment was so strong, BSA should have consented. Accordingly, each party was ordered to bear its own costs of the amendment application.

Orders Made

  • Leave granted to the prosecutor to amend Annexure A to the Summons filed 9 December 2020 in respect of particulars 9(g) and 9(h), in the terms of Attachment A to the Notice of Motion filed 19 November 2021.
  • The prosecutor ordered to pay the defendant's costs thrown away by reason of vacation of the hearing on 25 November 2021, on an indemnity basis.
  • Each party ordered to pay its own costs of the prosecutor's Notice of Motion filed 19 November 2021.

Key Takeaways

  • Under s 20 of the Criminal Procedure Act 1985 (NSW), the court must exercise the power to grant leave to amend a summons or indictment "appropriately," with the primary consideration being whether the accused would suffer unfair prejudice that cannot be remedied by another procedure.
  • A Basha inquiry (a pre-trial hearing permitting cross-examination of new prosecution witnesses) remains a recognised mechanism for addressing prejudice arising from late amendments or the absence of committal proceedings in relation to new charges.
  • The District Court confirmed that s 20 applies equally to summonses and indictments, by operation of s 15 of the Criminal Procedure Act, which defines "indictment" to include any process by which criminal proceedings are commenced.
  • Indemnity costs can be ordered against a party that files a motion returnable on a date already set aside for the other side's hearing, without adequate notice or prior leave of the court, causing the other side's costs of that day to be wasted.
  • Where the case for an amendment is sufficiently strong, a respondent who declines to consent to the application may find that the court declines to award costs of the motion in that party's favour, even if leave is ultimately granted.

Legislation and Cases Referenced

Legislation:
- Criminal Procedure Act 1985 (NSW), ss 15, 16(2), 20, 21, 63A, 247
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 155

Cases:
- R v Basha (1989) 39 A Crim R 337
- R v Lykouras [2005] NSWCCA 8
- R v Sepulveda [2003] NSWCCA 131
- Rajendran v R [2010] NSWCCA 322
- SafeWork NSW v Solveco Pty Ltd (No. 1) [2021] NSWDC 298