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Court of Criminal Appeal 24 June 2024

Prime Marble & Granite Pty Ltd v Safework NSW

[2024] NSWCCA 105

Other
APPEALS EMPLOYMENT AND INDUSTRIAL LAW WORK HEALTH AND SAFETY WHETHER PROCEEDINGS COMMENCED IN TIME

Citation: Prime Marble & Granite Pty Ltd v Safework NSW [2024] NSWCCA 105
Court: Court of Criminal Appeal
Date: 24 June 2024
Judge(s): Harrison CJ at CL; Hamill J; N Adams J

Background

The appellant was a stone benchtop manufacturer. SafeWork NSW prosecuted it for two offences under section 32 of the Work Health and Safety Act 2011 (NSW), alleging that it failed to comply with its duty under section 19(1) and thereby exposed workers to a risk of death or serious injury from respirable crystalline silica (RCS) dust. The two workers named in the summonses, Mr Zhang and Mr Geng, had both died from silicosis-related illness in 2020.

SafeWork inspectors had attended the appellant's premises in August 2017 and conducted personal air monitoring. Their November 2017 report found that workers performing polishing tasks were exposed to RCS dust concentrations between 2.1 and 7.5 times the regulated Australian Workplace Exposure Standard. The report warned that workers inhaling RCS particles were at risk of serious lung diseases including silicosis, chronic obstructive pulmonary disease, and lung cancer.

SafeWork did not become aware of Mr Zhang until February 2021 and Mr Geng until May 2021. The prosecution summonses were filed on 30 March 2023. The central dispute was whether those summonses were filed within the two-year limitation period in section 232 of the Act, given that SafeWork had known since at least November 2017 that the appellant's workers were exposed to RCS dust above regulated levels.

Legal Issues

  • When does an offence under section 32 of the WHS Act "first come to the notice" of the regulator for the purposes of the two-year limitation period in section 232(1)(a)?
  • Does the regulator need to be aware of the identity of specific individuals exposed to the relevant risk before the limitation period begins to run?
  • Does the limitation period commence when the risk of serious injury is identified, or only when that risk has materialised in injury or death?
  • What standard of appellate review applies to an interlocutory decision declining to dismiss summonses under section 5F(3) of the Criminal Appeal Act 1912?

Decision

Issue 1: Standard of appellate review

N Adams J (with Hamill J in agreement) held that the correctness standard of appellate review applies to this interlocutory decision, rather than the House v The King error standard that had previously applied to discretionary decisions (at [51]-[53]). The decision was binary in character, and the construction of sections 32 and 232 of the WHS Act was not evaluative. The Court noted that the result would have been the same under either standard (at [53]).

Issue 2: The relevant test for "notice" of an offence

The Court confirmed that an offence first comes to the notice of the regulator when the regulator has information sufficient to give reasonable grounds for a belief that the offence has been committed (at [18]). It is not necessary for the regulator to actually hold that belief, nor to have evidence capable of proving all elements in court. The Court applied the test from Witheyman v Van Riet and distinguished the slightly different statutory language in Somerville, which involved a formulation requiring evidence to have "come to the attention" of an authorised officer (at [56]).

Issue 3: Whether knowledge of specific individuals is required

The Court held that the primary judge erred in treating SafeWork's lack of knowledge of Mr Zhang and Mr Geng as determinative of when the limitation period commenced (at [27]). The gravamen of a section 32 offence is the creation of risk and the exposure of any individual worker to it, not the identification of the particular individual (at [24]). The offence is not concerned with conduct directed at a specific person in the way an assault charge would be. It would have been sufficient, had proceedings been commenced within two years of November 2017, to establish that at least one worker was exposed to the relevant risk (at [26]).

Issue 4: When the limitation period began to run

The Court held that section 32(c) refers to a failure that "exposes an individual to a risk of death or serious injury or illness," not to a failure that causes such an outcome (at [34]). Proof that the risk had materialised in actual harm was beside the point for identifying when time began to run (at [34]). SafeWork had reasonable grounds, as of 30 August 2017 when air monitoring was conducted, to believe that one or more individuals were being exposed to a risk of death or serious injury through RCS dust (at [57]-[60]). At the latest, the regulator had notice of the offence from 20 November 2017 when the Workplace Hygiene Monitoring Report was prepared (at [26]). The summonses, filed on 30 March 2023, were filed well outside the two-year period. Continuation of the proceedings was an abuse of process (at [48]).

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Orders of the District Court made on 13 February 2024 vacated.
  • In lieu thereof, summons 2023/103537 and summons 2023/103574 dismissed.

Key Takeaways

  • Under section 232(1)(a) of the WHS Act, the two-year limitation period for prosecution begins when the regulator has reasonable grounds to believe the offence has been committed, not when the regulator learns of the identity of particular workers affected (at [18], [26]).

  • A section 32 WHS offence is complete when a failure to comply with a health and safety duty exposes any individual to a risk of death or serious injury or illness. The regulator does not need to know the identity of those individuals for the limitation clock to start running (at [24], [26]).

  • The limitation period runs from when the regulator has notice of an unmaterialised risk. Evidence that air monitoring showed workers exposed to RCS dust concentrations far above regulated standards was sufficient to give the regulator notice of the relevant risk in 2017, years before any of those workers were identified by name in the prosecution (at [34]-[35], [60]).

  • Where a prosecution is risk-based rather than harm-based, the Court's construction of section 32 confirms that the focus of the limitation inquiry is the existence of the risk, not the eventual manifestation of that risk in injury or death (at [33]-[35]).

  • The correctness standard of appellate review applies to interlocutory decisions declining to dismiss summonses on limitation grounds, following the approach confirmed in Koschier v R and the High Court's decision in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore. Such decisions are binary and involve statutory construction rather than evaluative discretion (at [51]-[53]).

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Evidence Act 1995 (NSW), s 141
- National Parks and Wildlife Act 1974 (NSW), s 190
- Work Health & Safety Act 2011 (NSW), ss 19, 32, 232
- Work Health and Safety Regulation 2011 (NSW), r 49
- Work Health & Safety Regulation 2017 (NSW), cl 368, sch 14

Cases
- Abigroup Contractors Pty Ltd v WorkCover Authority (NSW) (2004) 135 IR 317; [2004] NSWIRComm 270.
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
- Cumberland Council v Younan [2018] NSWLEC 145
- Director of Public Prosecutions (Cth) v Citigroup Global Markets Australia Pty Ltd (No 1 – Indictment) [2021] FCA 757
- George v Rocket (1990) 170 CLR 104; [1990] HCA 26
- GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; (2023) 97 ALJR 857
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Hamilton v DPP (2020) 287 A Crim R 268; [2020] NSWSC 1745
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
- Koschier v R [2024] NSWCCA 24
- M & S Investments (NSW) Pty Ltd v Affordable Demolitions & Excavations Pty Ltd [2023] NSWLEC 65
- McColm v Hamiltons Blasting Services Pty Ltd; McColm v Hamilton [2021] NSWDC 688
- R v Board of Trustees of the Science Museum [1993] 3 All ER 853; [1993] 1 WLR 1171
- Safework NSW v Astute Earthworks Pty Ltd [2023] NSWDC 131
- SafeWork NSW v Edstein Creative Pty Ltd [2022] NSWDC 117
- SafeWork NSW v Prime Marble & Granite Pty Ltd [2024] NSWDC 17
- Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261
- Somerville v Chief Executive of the Office of Environment and Heritage [2020] NSWCCA 93
- Unity Pty Ltd v Safework NSW [2018] NSWCCA 266
- Witheyman v Van Riet (2008) 185 A Crim R 492; [2008] QCA 168