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Court of Criminal Appeal 13 November 2024

JBS Australia Pty Ltd v SafeWork NSW

[2024] NSWCCA 209

Other
CRIME EXERCISE OF SUMMARY JURISDICTION NATURE OF APPEAL CRIMINAL APPEAL ACT 1912 (NSW), S 5AA APPEAL “IN THE STRICT SENSE” SCOPE OF HEALTH AND SAFETY DUTY

Citation: JBS Australia Pty Ltd v SafeWork NSW [2024] NSWCCA 209
Court: NSW Court of Criminal Appeal
Date: 13 November 2024
Judges: Ward P; Basten AJA (primary judgment); N Adams J

Background

The appellant employer operates several meat processing facilities and feedlots across New South Wales. On 19 February 2020, an employee was conducting moisture testing on hay bales near a partly constructed stack at the Caroona feedlot when two bales, each weighing approximately 700 kg, fell on her and caused serious injuries.

SafeWork NSW commenced a prosecution in February 2022 under s 32 of the Work Health and Safety Act 2011 (NSW), which creates a Category 2 offence for failing to comply with a health and safety duty where that failure exposes an individual to a risk of death or serious injury. The charge was heard summarily by Scotting DCJ in the District Court. The appellant argued it had identified the relevant risk of falling bales, adopted general practices to minimise it, and specifically trained the injured worker about those risks.

The District Court found the appellant guilty in September 2023 and imposed a fine of $300,000 in November 2023, ordering that 50% of the fine (a "moiety") be paid to SafeWork NSW as the prosecuting agency. The appellant appealed against the conviction and the moiety order, but not the quantum of the fine itself.

  • What is the correct scope of an appeal under s 5AA of the Criminal Appeal Act 1912 (NSW), specifically whether it permits the appellate court to make its own factual findings without first identifying error below?
  • Did the trial judge err in finding the injured worker was not adequately trained about the risks of falling bales?
  • Did the trial judge err in concluding the appellant had breached its health and safety duty by failing to undertake a risk assessment, develop safe work procedures, and provide adequate training?
  • Did the trial judge err in his causation findings?
  • Was the order requiring 50% of the fine to be paid to SafeWork NSW (the moiety) legally sound?

Decision

Scope of the appeal. The Court clarified that a s 5AA appeal is an appeal "in the strict sense," distinct from both a de novo hearing and an appeal by way of rehearing. The appellate court must not make its own factual findings unless it is first satisfied that the trial judge's findings were attended by error. The scope of inquiry is therefore more limited than in a rehearing-style appeal.

Training findings. The injured worker gave evidence, accepted by the trial judge, that she had not been trained about the relevant risks. Given the trial judge's credit findings in her favour, the Court found no identifiable error in accepting her account. The trial judge also correctly found that the training provided was deficient because it did not address how to deal with unusual or novel situations, nor the relevant safety measures specific to moisture testing near a partially built stack.

Breach of duty. The Court found no error in the trial judge's conclusions on three related failures: the absence of any formal risk assessment for the moisture-testing task; the reliance on general oral instructions rather than documented safe work procedures; and the inadequacy of on-the-job training. Notably, the fact that the appellant developed adequate procedures in the period shortly after the incident supported the finding that doing so beforehand would have been reasonably practicable. The employer's submission that evidence from other employees contradicted the injured worker's account did not undermine the finding that those employees had received instructions she had not.

Causation and the moiety. The Court rejected the causation challenge on the basis that it did not raise any independent error beyond the training arguments already addressed. The Court also dismissed the moiety challenge. Legislative anomalies about whether a moiety could be paid to a police officer rather than another public officer were inherent in the statutory scheme and did not constitute mandatory considerations the trial judge had ignored. The moiety arguments had also not been raised before the trial judge in the terms advanced on appeal.

Orders Made

  • The appeal from the District Court judgments of 19 September 2023 and 8 November 2023 is dismissed.
  • The appellant is to pay the respondent's costs in the Court of Criminal Appeal.

Key Takeaways

  • Under s 5AA of the Criminal Appeal Act 1912 (NSW), an appeal from a summary conviction in the District Court is an appeal "in the strict sense": the appellate court must identify error in the trial judge's reasoning before substituting its own factual findings, and the scope of review is narrower than an appeal by way of rehearing.

  • A WHS duty-holder's reliance on general oral instructions, without a formal risk assessment or documented safe work procedures, was found to be insufficient to discharge the duty under s 19 of the Work Health and Safety Act 2011 (NSW) in respect of a known risk.

  • The swift development of adequate safe work procedures after an incident can constitute evidence that implementing those procedures before the incident would have been reasonably practicable, supporting a finding of breach.

  • Where a worker's evidence is accepted on grounds of credit and reliability, an employer's attempt to rely on other employees' contrary evidence does not necessarily displace the finding, particularly where the trial judge found that those other employees had received different instructions.

  • In dismissing the moiety challenge, the Court confirmed that apparent anomalies within the legislative scheme for distributing fines between the State and a prosecuting agency do not, of themselves, constitute mandatory considerations requiring express engagement by the sentencing court, especially where the point was not squarely raised at first instance.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 32, 229B, 230; Sch 2, cl 1
- Criminal Appeal Act 1912 (NSW), ss 5, 5AA, 6, 7
- Criminal Procedure Act 1986 (NSW), ss 133, 170, 245
- Fines Act 1996 (NSW), s 122
- Fines and Penalties Act 1901 (NSW), s 5
- Supreme Court Act 1970 (NSW), s 75A
- Courts Legislation Amendment Act 2000 (NSW), Sch 3
- Federal Court of Australia Act 1976 (Cth), ss 24, 25, 27, 28

Cases
- Ah Yick v Lehmert (1905) 2 CLR 593
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
- CDJ v VAJ (1998) 197 CLR 172
- Chamberlain v The Queen (No 2) (1984) 153 CLR 521
- Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499
- Fox v Percy (2003) 214 CLR 118
- HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212
- Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
- House v The King (1936) 55 CLR 499
- Lacey v Attorney-General for the State of Queensland (2011) 242 CLR 573
- Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
- Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
- Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304