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District Court 13 July 2023

SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble

[2023] NSWDC 252

Other

Citation: SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252
Court: District Court of New South Wales
Date: 13 July 2023
Judge: Russell SC DCJ

Background

A forklift collision at a transport depot in Tamworth on 4 November 2020 resulted in serious injuries to a worker. SafeWork NSW subsequently brought separate prosecutions against the operator of the depot, a transport company (referred to here as the corporate defendant), and against the sole director and sole member of that company (the individual defendant) in his capacity as an officer of the business.

The corporate defendant was charged under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) with failing to ensure, so far as reasonably practicable, the health and safety of workers. The individual defendant was charged under s 27(1) of the WHS Act with failing to exercise due diligence to ensure the company complied with its health and safety duty. Both charges were brought as Category 2 offences under s 32 of the WHS Act, on the basis that the failures exposed workers to a risk of death or serious injury.

A complication arose when the corporate defendant entered liquidation in March 2023. The liquidator indicated it would neither consent to nor contest any orders, meaning the corporate defendant was effectively unrepresented. The individual defendant, by contrast, pleaded not guilty and filed a Notice of Motion seeking to have his matter heard separately from, and before, the corporate matter.

  • Whether the two prosecutions arose out of the same set of circumstances within the meaning of s 29(2)(b) of the Criminal Procedure Act 1986 (NSW), permitting them to be heard together.
  • Whether the interests of justice required the matters to be heard and determined separately under s 29(3) of the Criminal Procedure Act 1986 (NSW).
  • Whether the individual defendant would suffer any prejudice to his right to a fair trial if the matters proceeded jointly.

Decision

The court found that the offences clearly arose out of the same set of circumstances. Both summonses pleaded identical facts: the same incident, the same risk, and the same alleged breach of duty by the corporate defendant. The individual defendant's charge was, by its very nature, dependent on proof of the corporate defendant's breach, since an officer's duty under s 27 of the WHS Act is to ensure compliance with the company's own WHS obligations.

The court considered the factors established in Symss v The Queen [2003] NSWCCA 77, including the conservation of public costs, avoiding inconvenience to witnesses, and the desirability of trying common enterprises together to prevent inconsistent verdicts. The documentary evidence and the witnesses relevant to the corporate defendant's breach would be identical in both proceedings, making a joint hearing efficient and coherent.

The court rejected the argument that the individual defendant would be prejudiced by a joint trial. He would retain a full opportunity to challenge the evidence in both proceedings. The court distinguished the decision in Orr v Moolarben Coal Pty Ltd; Orr v Chaplin [2020] NSWDC 739, finding the circumstances there were materially different. Holding separate trials would waste public funds without providing any corresponding benefit to the fairness of the individual defendant's hearing.

Applying s 29(3), the court was not satisfied that the interests of justice required separate hearings. The Notice of Motion was dismissed, and both matters were confirmed to proceed as a joint defended hearing.

Orders Made

  • The Notice of Motion filed by the individual defendant on 19 June 2023 was dismissed.
  • The individual defendant was ordered to pay SafeWork NSW's costs of the Notice of Motion.
  • Both matters were confirmed to proceed together as defended hearings commencing 12 February 2024.
  • Liberty was granted to restore either matter to the Monday WHS List on three days' notice.

Key Takeaways

  • Under s 29(2)(b) of the Criminal Procedure Act 1986 (NSW), the phrase "arise out of the same set of circumstances" is broadly construed and readily satisfied where separate charges stem from the same incident, the same alleged breach, and involve overlapping evidence.
  • A joint trial of a company and its officer under the WHS Act will generally be appropriate where the officer's charge is parasitic on proof of the company's own breach, since the evidence required to establish both offences substantially overlaps.
  • The interests of justice under s 29(3) extend beyond the interests of the accused and include the interests of witnesses, the Crown, and the public, including the efficient use of public resources.
  • In dismissing the motion, the District Court emphasised that an unrepresented or non-participating corporate defendant does not, of itself, make a joint trial unfair or prejudicial to a co-accused.
  • The conservation of costs and avoidance of inconsistent verdicts remain significant considerations weighing against separate trials where the offences share common facts and evidence.

Legislation and Cases Referenced

Legislation
- Criminal Procedure Act 1986 (NSW), s 29
- Work Health and Safety Act 2011 (NSW), ss 19, 27, 32

Cases
- Roach v R [2019] NSWCCA 160
- Symss v The Queen [2003] NSWCCA 77
- Orr v Moolarben Coal Pty Ltd; Orr v Chaplin [2020] NSWDC 739
- Osman v R [2006] NSWCCA 196 (cited in Roach)
- Kentwell v The Queen (2014) 252 CLR 601 (cited in Roach)
- Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 (cited in Roach)