Citation: SafeWork NSW v Boral Cement Ltd; SafeWork NSW v Fenner Dunlop Australia Pty Ltd [2025] NSWDC 154
Court: District Court of New South Wales
Date: 2 May 2025
Judge: Russell SC DCJ
Background
On 13 February 2022, a worker employed by a conveyor belt services company was severely injured at a cement plant in New Berrima, NSW. Work was underway to install a new conveyor belt on a bucket elevator. The belt went into an uncontrolled free run, causing a fluid coupling to explode and striking the worker with metal shrapnel.
SafeWork NSW charged three parties with breaching s 19(1) of the Work Health and Safety Act 2011 (NSW), which imposes a primary duty on persons conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers. The cement plant operator faced allegations that it failed to implement adequate safety measures in managing the installation work it had contracted out. The belt services company faced allegations relating to its own role in the same work. A third party, an engineering services contractor, pleaded guilty and is listed for sentencing separately.
Both the plant operator and the belt services company pleaded not guilty. The central procedural question before the court was whether their trials should be conducted jointly or separately.
Legal Issues
- Whether the charges against the two defendants arose out of the "same circumstances" within the meaning of s 29(2)(b) of the Criminal Procedure Act 1986 (NSW), so as to permit a joint trial.
- Whether, even if joinder was available, the interests of justice under s 29(3) of the Criminal Procedure Act 1986 (NSW) required separate trials.
- Whether a joint trial would cause forensic unfairness or prejudice to either defendant.
- How to weigh competing considerations of cost, convenience, and fairness to all parties, witnesses, and the court.
Decision
Russell SC DCJ held that the charges arose from the same set of circumstances, satisfying the threshold for joinder under s 29(2)(b) of the Criminal Procedure Act 1986 (NSW). Both charges concerned the same incident, the same worksite, the same work task, and largely identical facts as set out in nearly identical Statements of Facts annexed to each summons.
The court then considered whether the interests of justice nonetheless required separate trials under s 29(3). Neither defendant argued that a joint trial would cause actual forensic unfairness or prevent a fair hearing. The court found no impediment to the fairness of proceeding jointly, distinguishing cases where prejudice to one party at a joint trial was clear and substantial.
Practical considerations also weighed in favour of a joint trial. Conducting separate hearings would require witnesses, including those who were present at the time of the explosion, to give evidence twice. It would also impose additional costs on the prosecutor and the court, with no corresponding benefit to the administration of justice sufficient to justify those burdens.
The court acknowledged competing cost and inconvenience considerations for the defendants but noted that any acquitted defendant could reasonably expect a costs order in its favour, which would go some way toward addressing any additional costs arising from a joint trial. Accordingly, the court was not satisfied that separate trials were required in the interests of justice.
Orders Made
- The charges against both defendants are to be heard and determined together.
- Both matters are provisionally listed for a four-week hearing commencing 27 October 2025, to be heard together.
- Interlocutory orders previously made in each matter are confirmed.
Key Takeaways
- The District Court held that charges against two defendants arising from a single workplace incident, involving the same worksite, the same task, and nearly identical facts, satisfied the "same circumstances" requirement for joinder under s 29(2)(b) of the Criminal Procedure Act 1986 (NSW).
- Under s 29(3), a court must still consider whether the interests of justice require separate trials even where joinder is technically available. The absence of any forensic unfairness or impediment to a fair trial was a significant factor in refusing separate trials here.
- Witness inconvenience and duplication of costs to the prosecutor and the court are relevant considerations that can weigh in favour of a joint trial.
- A potential costs order in favour of an acquitted defendant was identified as a mechanism that could partially offset any additional expense a defendant incurs by reason of being tried jointly.
- Nothing in this decision determined the guilt or liability of either defendant. Both matters remain listed for trial, with a preliminary hearing to confirm dates scheduled for 10 July 2025.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), s 29
- Work Health and Safety Act 2011 (NSW), s 19(1)
Cases
- McNamara v The King [2023] HCA 36
- Roach v R [2019] NSWCCA 160
- Symss v The Queen [2003] NSWCCA 77