Citation: Saunders Civilbuild Pty Ltd v SafeWork New South Wales (No 2) [2024] NSWCCA 3
Court: Court of Criminal Appeal
Date: 12 February 2024
Judges: Walton J, McNaughton J
Background
A construction company was convicted in the District Court of New South Wales of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) following a prosecution by SafeWork NSW. At sentencing, the District Court imposed a fine and made an Adverse Publicity Order under s 236 of the WHS Act, requiring the company to publish a notice describing the offence in two industry publications.
The company appealed both conviction and sentence to the Court of Criminal Appeal. In October 2023, the conviction appeal was dismissed, but the Court partially accepted one ground: findings relating to what were described as the "Fall Protection Findings" (sub-particulars 17(a)(iii) and (iv) of the originating summons) did not survive the appeal. The sentence appeal was stood over and later determined on the papers by Walton J and McNaughton J following the retirement of the presiding judge.
The sentence appeal was confined solely to the Adverse Publicity Order. The company argued the order should be amended to remove references to the Fall Protection Findings, which no longer formed part of the proven offence after the conviction appeal.
Legal Issues
- Whether the Adverse Publicity Order, as originally made, should be quashed and substituted with a form of order reflecting the findings that survived the conviction appeal
- Whether an Adverse Publicity Order under s 236 of the WHS Act must accurately reflect only the offence as it was proven
Decision
The Adverse Publicity Order:
The Court held that the existing Adverse Publicity Order could not stand in its original form. Because the Fall Protection Findings had been set aside on the conviction appeal, those findings were no longer part of the proven offence, and an order requiring their publication was no longer appropriate (at [13], [15]).
The Court observed that the legislation is clear: the Adverse Publicity Notice must reflect the offence "so far as it was proven." With the Fall Protection Findings removed from the proven findings, the notice as originally drafted no longer accurately described the offence (at [13]). The respondent did not oppose the orders sought by the appellant (at [10]).
The original order was quashed and replaced with a substituted Adverse Publicity Order incorporating an amended notice from which the Fall Protection Findings were removed. All other sentencing orders, including the fine and the direction that 50% of the fine be paid to the respondent under s 122(2) of the Fines Act 1996 (NSW), were confirmed (at [15]-[16]).
Orders Made
- The appeal against sentence was otherwise dismissed and all orders made by Scotting DCJ on 18 May 2022 were confirmed, including the direction that 50% of the fine be paid to SafeWork NSW under s 122(2) of the Fines Act 1996 (NSW).
- The original Adverse Publicity Order was quashed and substituted with a new order requiring the appellant to publish an amended Adverse Publicity Notice in two consecutive editions of each of: The Master Builders Association Magazine, and The Civil Contractors Federation Bulletin.
- The amended notice must be no smaller than a full page (or at least 28cm x 5 columns), use a minimum 12-point Times New Roman typeface (or equivalent), and be published in full colour.
- Publication was required on or before 28 February 2024, or in the first editions after that date.
- The appellant was required to advise the respondent of compliance, with evidence, by 5:00pm on 28 February 2024.
Key Takeaways
- Under s 236 of the Work Health and Safety Act 2011 (NSW), an Adverse Publicity Order must reflect only the offence as it was actually proven; where findings underpinning the original order are subsequently set aside on appeal, the order cannot stand in its original form (at [13], [15]).
- A partial success on a conviction appeal can have direct flow-on consequences for ancillary sentencing orders, even where the appeal against the primary penalty (such as a fine) is not separately challenged.
- Where a sentence appeal is confined to a discrete issue and both parties agree on the appropriate remedy, the Court of Criminal Appeal can determine the matter on the papers without a hearing (at [6]).
- The Court confirmed all other sentencing orders, demonstrating that quashing one component of a sentencing package does not necessarily disturb the remaining orders (at [15]-[16]).
- Retirement of a judge who heard a prior related appeal does not prevent the remaining members of the court from hearing a connected but deferred appeal, where a direction is made under s 6AA(1) of the Criminal Appeal Act 1912 (NSW) (at [5]).
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 6AA
- Fines Act 1996 (NSW), s 122
- Work Health and Safety Act 2011 (NSW), ss 32 , 236
Cases
- SafeWork NSW v Saunders Civilbuild Pty Ltd [2021] NSWDC 605
- SafeWork NSW v Saunders Civilbuild Pty Ltd (No 2) [2022] NSWDC 163
- Saunders Civilbuild Pty Ltd v SafeWork New South Wales [2023] NSWCCA 261