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District Court 3 October 2025

SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2)

[2025] NSWDC 399

Other
CRIMINAL PROCEDURE WHETHER SURROGATE RIGHT OF APPEAL

Citation: SafeWork NSW v Pendle Ham & Bacon Pty Ltd (No 2) [2025] NSWDC 399
Court: District Court of NSW
Date: 3 October 2025
Judge: Scotting DCJ

Background

This decision is a sequel to a primary judgment delivered on 17 March 2025 (SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63), in which Scotting DCJ found that the prosecutor, SafeWork NSW, had failed to establish the elements of the relevant offences under the Work Health and Safety Act 2011. The proceedings arose from a workplace incident in which a worker, Mr Shanmugalingam, was exposed to risk after coming into contact with a skylight. The primary judgment resulted in findings adverse to the prosecutor on multiple grounds, including evidentiary rulings, breach of duty, causation, and mens rea.

Following the delivery of those reasons, the prosecutor applied under section 5AE of the Criminal Appeal Act 1912 for the court to submit seven questions of law to the Court of Criminal Appeal for determination. The prosecutor acknowledged, through senior counsel, that its purpose was to correct what it characterised as errors of law made in the primary judgment.

  • Whether the seven questions proposed by the prosecutor were "questions of law" for the purposes of section 5AE of the Criminal Appeal Act 1912
  • Whether the section 5AE procedure can be used after reasons have already been delivered on the matters in question
  • Whether the prosecutor's application amounted to an impermissible attempt to invoke section 5AE as a surrogate right of appeal

Decision

Scotting DCJ declined to submit any of the seven questions to the Court of Criminal Appeal, finding that none qualified as "questions of law" within the meaning of section 5AE. The judge applied the framework established by a five-member bench of the Court of Criminal Appeal in Orr v Cobar Management Pty Ltd [2020] NSWCCA 220, which held that section 5AE is designed to provide guidance to a first instance judge on unsettled or contested points of pure law before those questions have been determined, not to correct decisions already made.

The central defect in the prosecutor's application was that its stated purpose, which senior counsel frankly conceded, was to challenge conclusions already reached in the primary judgment. That purpose is inconsistent with the section 5AE regime. As the Court of Criminal Appeal has confirmed, the procedure is not available as a surrogate right of appeal, and there is no statutory right of appeal from an acquittal in summary proceedings in the District Court.

On each of the seven questions, Scotting DCJ identified one or more independent reasons why the question did not satisfy the statutory threshold. Several questions required scrutiny of factual findings rather than resolution of pure legal propositions. Others raised no genuine controversy in the law. Others still had already been determined in the primary judgment, or would not meaningfully assist in resolving the proceedings even if answered. The court noted, in relation to causation, that its finding against the prosecutor on that issue rested on factual conclusions that a change in the legal answer would not displace.

Orders Made

  • The seven questions (Questions 1 to 7) proposed by the prosecutor are not questions of law for the purposes of section 5AE of the Criminal Appeal Act 1912, and the court does not have power to state them to the Court of Criminal Appeal for determination.

Key Takeaways

  • Section 5AE of the Criminal Appeal Act 1912 is confined to pure questions of law that have not yet been determined by the primary judge and that can be identified as questions of law on their face, without requiring scrutiny of the facts.
  • The procedure under section 5AE is designed to provide guidance to a first instance judge before a question is resolved, not to revisit conclusions already reached in reasons for judgment.
  • There is no statutory right of appeal from an acquittal in summary proceedings tried in the District Court: SafeWork NSW v BOC Ltd [2020] NSWCA 306 confirms this position.
  • Invoking section 5AE for the purpose of correcting alleged errors of law in a judgment already delivered constitutes an impermissible use of the procedure as a surrogate right of appeal.
  • Adverse factual findings that are independent of the legal questions proposed can render those questions inutile, providing a further reason to decline to state them.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5AE
- Work Health and Safety Act 2011 (NSW), s 32
- Evidence Act 1995 (NSW)
- Partnership Act 1892 (NSW)

Cases
- Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
- Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39
- SafeWork NSW v BOC Ltd [2020] NSWCA 306
- Environmental Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289
- Saunders Civilbuild Pty Ltd v SafeWork NSW [2023] NSWCCA 261
- Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288
- Environmental Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174
- SafeWork NSW v Pendle Ham & Bacon Pty Ltd [2025] NSWDC 63 (primary judgment)
- SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395
- Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338
- Moore v The King [2024] HCA 30
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
- Mifsud v Campbell (1991) 21 NSWLR 725
- Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 609