Citation: Western Sydney Local Health District v SafeWork NSW [2024] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 15 August 2024
Judge(s): Leeming JA; Payne JA; Chen J
Background
SafeWork NSW prosecuted Western Sydney Local Health District (the defendant health district) in the District Court for breaching its duty under s 19 of the Work Health and Safety Act 2011 (NSW) to ensure, so far as reasonably practicable, the health and safety of a female nurse. The alleged breach arose from the nurse's exposure to a risk of serious physical or psychiatric injury from the behaviour of a male patient at Blacktown Hospital over a three-day period. The prosecutor's summons identified multiple categories of risk and, in paragraph 11, ten separate particulars of how the defendant failed to meet its duty.
Shortly before a four-week hearing was due to commence, the health district entered a guilty plea, but only on the basis of one particular, 11(b), which alleged that a male nurse should have attended to the patient's requirements. The prosecutor indicated it intended to press several other particulars, not at trial, but as matters relevant to the sentencing discretion.
The health district then applied to the District Court to submit a question of law to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912 (NSW). The District Court granted that application over the prosecutor's opposition.
Legal Issues
- Whether the question submitted by the District Court was a pure question of law suitable for determination under s 5AE of the Criminal Appeal Act 1912 (NSW).
- Whether s 17 of the Work Health and Safety Act 2011 (NSW), which requires duties to be performed by first eliminating risks and, only if that is not reasonably practicable, minimising them, renders it impermissible for the prosecutor to rely at sentencing on particulars that would merely minimise (rather than eliminate) the identified risk, once the defendant has pleaded guilty on the basis of a particular that would have eliminated the risk.
Decision
The Court of Criminal Appeal declined to answer the submitted question, concluding that it did not raise a pure question of law. The Court observed that, beneath the apparent simplicity of the question, significant factual matters remained unresolved. Most notably, the defendant itself conceded that the prosecutor remained free to argue that particular 11(b), the very particular underpinning the guilty plea, would only minimise rather than eliminate the risk. That factual dispute had to be determined by the District Court first, making the submitted question premature.
The Court also rejected the defendant's substantive construction of s 17. Section 17 is a principle about how a duty to "ensure health and safety" operates; it is not a provision that constrains the exercise of the sentencing discretion. The Court found it difficult to see how s 17 could render inadmissible, or otherwise impermissible, evidence about steps that would have minimised a risk, when such evidence is plainly capable of bearing on the objective seriousness of an offence. Using an example, the Court noted that if a worker were injured by machinery lacking a protective cage, it would obviously be relevant to sentence to know whether the employer had also failed to train workers or erect warning signs, even though those measures would only minimise rather than eliminate the risk.
The Court also noted procedural concerns with the submitted material. The District Court's documents were confusing: what purported to be a stated case had not actually stated a case, annexing only the parties' written submissions instead. Because this was treated as a submission of a question of law rather than a stated case, the Court could nonetheless look beyond the annexures to common ground material, which it did. The Court also flagged a general caution against bifurcating or staging criminal proceedings.
Orders Made
- The question submitted by the District Court on 17 June 2024 is answered: "This question does not raise a question of law."
- Western Sydney Local Health District is to pay SafeWork NSW's costs of and occasioned by the application.
Key Takeaways
- A question submitted to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act 1912 (NSW) must be a pure question of law; where its resolution depends on unresolved factual matters, the Court will decline to answer it.
- Section 17 of the Work Health and Safety Act 2011 (NSW) establishes principles governing how a duty to ensure health and safety is to be performed, but the Court of Criminal Appeal found that it does not operate to limit what evidence is admissible or relevant at sentencing.
- A guilty plea to a single charge does not, of itself, restrict the sentencing court to considering only the particular on which the plea was based; other particulars pursued by the prosecutor may still be relevant to the exercise of the sentencing discretion.
- Where a defendant concedes that a prosecutor remains free to dispute the factual basis of the plea itself, a question of law built on assumptions about that basis is not ripe for determination.
- Procedural compliance matters: the Court highlighted that a stated case must actually state the relevant facts and cannot be remedied in the appellate court if those facts are omitted, though in this instance the deficiency did not prove fatal because the proceeding was treated as a submission of a question rather than a stated case.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5AA, 5AE
- Work Health and Safety Act 2011 (NSW), ss 13, 17, 19, 30, 32
Cases:
- Doyle v Commissioner of Police [2020] NSWCA 11
- Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2) [2019] NSWCCA 202
- GAS v R; SJK v R (2004) 217 CLR 198
- Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176
- Khatri v Price (1999) 95 FCR 287
- Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- OV & OW v Members of the Board of the Wesley Mission Council (2010) 79 NSWLR 606
- SafeWork NSW v Western Sydney Local Health District [2024] NSWDC 174
- Strbak v The Queen (2020) 267 CLR 494
- The Queen v De Simoni (1981) 147 CLR 383
- The Queen v Olbrich (1999) 199 CLR 270
- Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140