Citation: SafeWork NSW v Boral Cement Limited (No.1) [2025] NSWDC 429
Court: District Court of NSW
Date: 24 October 2025
Judge: Russell SC DCJ
Background
In February 2022, a worker suffered severe injuries at a cement facility in New Berrima when a conveyor belt oversped and a fluid coupling exploded, striking him with metal fragments. SafeWork NSW subsequently charged three entities under s 19(1) of the Work Health and Safety Act 2011 (NSW): the facility operator, a contractor involved in the conveyor work, and an engineering company. One of those three, the engineering company, pleaded guilty and was sentenced by Russell SC DCJ on 21 October 2025.
The remaining two defendants, the facility operator and the contractor, pleaded not guilty. A joint four-week trial before the same judge was listed to commence on 27 October 2025.
On 23 October 2025, the day before judgment on this application, the facility operator made an oral application for the judge to disqualify himself from presiding at the trial. The application was brought on the ground of apprehended bias, not actual bias, arising from findings of fact made in the earlier sentencing judgment.
Legal Issues
- Whether the findings of fact made in the co-offender's sentencing judgment gave rise to a reasonable apprehension of bias on the part of the trial judge
- Whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the factual determinations required at the forthcoming contested trial
- How the nature of the earlier decision (a sentencing on agreed facts) and its context bore on the apprehended bias analysis
Decision
Russell SC DCJ refused the application. The judge applied the established test: whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the questions to be decided at trial. The test is objective and does not require inquiry into the judge's actual state of mind. It asks whether the possibility of partiality is real, not merely remote.
The critical consideration was the nature of the earlier sentencing judgment and the context in which it was made. The findings of fact in that judgment were drawn entirely from a statement of agreed facts presented by both prosecution and the pleading-guilty defendant. There was no contested evidence, no credibility assessment, and no choice between competing factual versions. The judge described those findings as a "fait accompli" presented to the court, rather than conclusions reached through adversarial fact-finding.
The judge rejected the submission that a fair-minded lay observer would be concerned about partiality in these circumstances. Where agreed facts are simply adopted and reproduced for sentencing purposes, there is a fundamental difference from a situation where a judge has resolved contested witness evidence or drawn contested inferences. The sentencing judgment itself expressly noted that the agreed facts could have no significance in the later trial of the non-guilty defendants.
The judge also addressed the suggestion that SafeWork would press the same agreed facts at trial. That prospect was characterised as speculation: SafeWork would be expected to rely on evidence adduced at trial, not on agreed facts from a prior proceeding to which neither trial defendant was a party. The judge observed that, as a matter of practicality, sentencing of co-offenders by the same judge on agreed facts occurs routinely, and a fair-minded lay observer would appreciate that judges are trained to exclude irrelevant material and decide cases on their merits.
Orders Made
- The application by the facility operator for the judge to disqualify himself from sitting as trial judge was refused.
- Costs of the disqualification application were reserved.
Key Takeaways
- The District Court confirmed that the apprehended bias test asks whether a fair-minded lay observer might reasonably apprehend partiality; the question is one of real possibility, not probability, and does not require inquiry into the judge's actual thought processes.
- Where a sentencing judge's prior findings of fact derived entirely from a statement of agreed facts, with no contested evidence or credibility determinations, those findings carry materially less force for apprehended bias purposes than findings arising from adversarial fact-finding.
- Under the framework affirmed in Isbester v Knox City Council (2015) 255 CLR 153, the nature of the earlier decision and the context in which it was made are central considerations in assessing whether a fair-minded observer would apprehend bias.
- Agreed facts from a co-offender's sentencing proceeding carry no evidentiary status in a subsequent contested trial involving different defendants, and a fair-minded lay observer would be taken to understand that distinction.
- Refusing the application, the Court noted that it is commonplace for the same judge to sentence co-offenders separately, including where one pleads guilty before others stand trial; an automatic disqualification rule in such circumstances would be unworkable.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 19(1)
Cases
- GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198
- Isbester v Knox City Council [2015] HCA 20; (2015) 255 CLR 153
- SafeWork NSW v Nepean Engineering and Innovation Pty Ltd [2025] NSWDC 411