Citation: SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275
Court: District Court of New South Wales
Date: 11 July 2024
Judge: Russell SC DCJ
Background
On 1 July 2021, a worker suffered serious injuries, including a traumatic brain injury and multiple fractures, after falling from height at a residential construction site in Carlton, NSW. The principal contractor had engaged subcontractors to perform tiling work on the first floor of the building. SafeWork NSW alleged the principal contractor failed in its health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW), exposing the workers to a risk of death or serious injury.
SafeWork charged the defendant company with a Category 1 offence under s 31 of the WHS Act, which, following its 2020 amendment, provides two alternative fault elements: that the person engaged in conduct with gross negligence, or was reckless as to the risk of death or serious injury. A Category 2 offence under s 32 (failure to comply with a health and safety duty) was pleaded in the alternative. The defendant ultimately pleaded guilty to the Category 2 charge but contested the Category 1 charge.
The defendant filed a Notice of Motion seeking a declaration that the Category 1 charge was bad for duplicity or uncertainty, and, in the alternative, an order compelling the prosecution to elect which of the two fault elements it intended to rely upon.
Legal Issues
- Whether s 31 of the WHS Act creates one offence or two distinct offences corresponding to the separate fault elements of gross negligence and recklessness.
- Whether a charge pleading both fault elements in the alternative is bad for duplicity (that is, unlawfully combines two separate offences in a single charge).
- Whether the charge was expressed with sufficient certainty to allow the defendant to know and meet the case against it.
- Whether the prosecution was required to elect one fault element before trial.
Decision
The court examined the duplicity doctrine and the established test: a charge is duplicitous if it charges more than one distinct offence, but not where a single offence may be committed in more than one way. The court noted that the mere fact a statute uses the word "or" to connect two modes of commission does not automatically mean two separate offences are created.
Applying that analysis to s 31, the court found that the section creates a single offence. The two limbs in s 31(1)(c), namely gross negligence and recklessness, are alternative ways of satisfying the fault element of that single offence, not two separate offences. The court observed that the 2020 amendment, which introduced gross negligence alongside recklessness, expanded the circumstances in which a person could be convicted of a Category 1 offence; it did not bifurcate the provision into two offences.
The court also rejected the argument that pleading both fault elements in the alternative rendered the charge uncertain. The defendant had been provided detailed particulars identifying the conduct alleged, and could plainly understand the case it had to meet. The court acknowledged that the defendant would need to approach evidentiary objections with both fault elements in mind, but noted this is not an unusual feature of criminal proceedings. No order for election was warranted.
Orders Made
- The Notice of Motion filed by the defendant on 22 April 2024 was dismissed.
- Costs of the Notice of Motion were reserved for determination at the conclusion of the proceedings.
- The proceedings were listed in the Work Health and Safety List at 9.30am on 22 July 2024.
Key Takeaways
- The District Court held that s 31 of the WHS Act, as amended in 2020, creates a single Category 1 offence with two alternative fault elements (gross negligence and recklessness), not two distinct offences.
- A charge under s 31 that pleads both fault elements in the alternative is not duplicitous, because duplicity arises only where a single charge impermissibly combines two separate offences.
- Pleading alternative fault elements in a single charge does not, without more, render that charge uncertain, provided the defendant receives adequate particulars of the alleged conduct.
- The prosecution is not obliged to elect between gross negligence and recklessness before trial; the defendant must prepare to address both fault elements at the hearing.
- Under s 31, the 2020 amendment broadened the Category 1 offence by adding gross negligence as an alternative to recklessness, reflecting a legislative intention to increase the circumstances in which the more serious category of WHS prosecution can succeed.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19, 31, 32, 233
- Work Health and Safety Amendment (Review) Bill 2020 (NSW)
- Criminal Procedure Act 1986 (NSW)
Cases
- Chapman v R [2013] NSWCCA 91
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
- Hannes v Director of Public Prosecutions (Cth) (No. 2) [2006] NSWCCA 373
- Johnson v Miller (1937) 59 CLR 469; [1937] HCA 77
- Linehan v Australian Public Service Association (Fourth Division Officers) 44 ALR 289
- R v Cramp [1999] NSWCCA 324
- Romeyko v Samuels (1972) 2 SASR 529
- S v The Queen (1989) 168 CLR 266; [1989] HCA 66
- Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26