Citation: SafeWork NSW v Richard Crookes Constructions Pty Ltd; SafeWork NSW v Transform Formwork Contractors Pty Ltd [2025] NSWDC 303
Court: District Court of NSW
Date: 8 August 2025
Judge: Strathdee DCJ
Background
SafeWork NSW filed separate summonses in May 2024 against two corporations alleged to have breached their duties under the Work Health and Safety Act 2011 (NSW). The charges arose from the same worksite incident, at which both defendants were operating at the same time. Each defendant faced the same charge: a failure to comply with a health and safety duty under s 19(1), contrary to s 32 of the WHS Act.
SafeWork NSW applied by Notice of Motion for the two sets of proceedings to be heard together as a joint trial. It argued the offences arose from the same set of circumstances and pointed to the efficiencies of a joint hearing: reduced costs, convenience to witnesses, and the avoidance of potentially inconsistent verdicts.
Both defendants opposed the application. They accepted the court had power to order a joint trial under s 29(2) of the Criminal Procedure Act 1986 (NSW), but argued the discretion should not be exercised in favour of joinder in the circumstances.
Legal Issues
- Whether the offences charged against each defendant arose from "the same set of circumstances" within the meaning of s 29(2)(b) of the Criminal Procedure Act 1986 (NSW).
- Whether, in the interests of justice under s 29(3), the matters ought nonetheless be heard and determined separately.
- How the court should weigh competing interests (those of each accused, the prosecutor, witnesses, and the public) when exercising the discretion.
Decision
The court accepted, without substantial controversy, that the offences arose from the same set of circumstances. Both defendants were working on the same site at the same time, and the alleged offending produced the same outcome. The threshold condition in s 29(2)(b) was satisfied.
However, the court declined to order a joint trial, finding that the interests of justice under s 29(3) required the matters to be heard separately. Central to this conclusion was the nature of the respective charges: although the incident was shared, the breaches alleged against each defendant turned on the individual acts or omissions of that defendant. Evidence directed at one defendant's breach of duty would not necessarily be relevant to the other's, or would be only peripherally so.
The court acknowledged that a joint trial would have practical advantages, including reducing costs for the prosecutor and limiting the number of times witnesses would need to give evidence. Those factors were real but not decisive. Against them, Strathdee DCJ weighed the risk that each defendant would face a significantly longer trial than necessary, with time and evidence directed to the other party's alleged conduct. The additional burden this would impose on each defendant outweighed the efficiencies of joinder.
The court also noted that the prosecutor's evidence in support of the application was largely generic, rather than specifically addressing how evidence would be divided or applied between the two accused. That lack of particularisation weakened the case for joinder.
Orders Made
- The prosecutor's Notice of Motion is dismissed.
- Matters to be listed on a date to be fixed to set separate trial dates.
- The prosecutor is ordered to pay each defendant's costs of the application.
Key Takeaways
- A shared worksite incident and a shared charge do not automatically produce a joint trial: the interests of justice under s 29(3) of the Criminal Procedure Act 1986 (NSW) require independent analysis even where the threshold conditions for joinder are met.
- Where allegations against co-accused turn on each party's distinct acts or omissions, a joint trial may expose defendants to evidence directed at the other party's conduct, extending trial length and potentially undermining the fairness of separate proceedings.
- The interests of justice in this context extend beyond an accused's interests alone: the District Court confirmed it must also weigh the interests of the prosecutor, witnesses, and the public, including considerations of cost and witness convenience.
- Prosecutorial applications for joinder are strengthened by specific, particularised evidence about how witnesses and documentary or expert evidence will be applied to each accused. General assertions about efficiency carry less weight.
- In dismissing the application, the court ordered costs against the prosecutor, reflecting the outcome of a contested interlocutory motion rather than any finding about the underlying charges.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
- Criminal Procedure Act 1986 (NSW), s 29
- Interpretation Act 1987 (NSW), s 9
Cases
- Allen v R [2020] NSWCCA 173
- Channel Seven Sydney Pty Ltd v Fierraventi-Wells (2011) 81 NSWLR 315
- DS v R [2023] NSWCCA 151
- Knight v FP Special Assets Ltd (1992) 174 CLR 178
- Orr v Moolarben Coal Pty Ltd; Orr v Chaplin [2020] NSWDC 739
- Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14
- PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
- SafeWork NSW v Boral Cement Ltd; SafeWork NSW v Fenner Dunlop Australia Pty Ltd [2025] NSWDC 154
- SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252