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Court of Criminal Appeal 10 April 2026

Deemah Stone Pty Ltd v SafeWork NSW

[2026] NSWCCA 34

Other

Citation: Deemah Stone Pty Ltd v SafeWork NSW [2026] NSWCCA 34
Court: NSW Court of Criminal Appeal
Date: 10 April 2026
Judge(s): Mitchelmore JA, Kirk JA, R A Hulme AJ

Background

The applicant was a company that manufactured stone products. The manufacturing process produced respirable crystalline silica (RCS) dust, which is hazardous to human health and a known cause of dust diseases.

In May 2019, a SafeWork NSW inspector attended the applicant's premises, identified contraventions of the Work Health and Safety Act 2011 (NSW) (WHS Act) and the Work Health and Safety Regulation 2017 (NSW), and issued improvement notices addressing two specific failures: not providing health monitoring, and not providing proper information and training regarding respiratory protective equipment. By August 2019, the inspector was satisfied those contraventions had been rectified. Further inspections occurred in 2020 and 2021.

In February 2022, SafeWork inspectors returned and made further observations — including concerns about the types of masks workers were permitted to wear and dust accumulation near the water filtration system. Further improvement notices were issued and complied with by April 2022. In November 2023, SafeWork filed a summons charging the applicant with a single offence under s 33 of the WHS Act for failing to comply with its health and safety duty under s 19(1), based on the 2022 inspection observations. The applicant sought to have the proceedings dismissed before trial, arguing they were time-barred. Under s 232(1) of the WHS Act, proceedings must be brought within two years of the offence first coming to the regulator's notice. The applicant contended that the "offence" was the same systemic failure observed back in May 2019, meaning the two-year clock had long expired. The primary judge rejected that argument, and the applicant sought leave to appeal.

  • Was the offence charged in respect of the 2022 inspection the same offence as, or a distinct offence from, any contravention observed during the 2019 inspection — and was the prosecution therefore time-barred under s 232(1) of the WHS Act?
  • How should offences under ss 19(1) and 33 of the WHS Act be characterised — as a single continuing offence or as potentially distinct offences capable of being committed at different times?
  • What is the correct analytical framework for determining whether a statutory offence is a "continuing offence," and what are the relevant categories?

Decision

The Court (Kirk JA writing the principal judgment, with Mitchelmore JA and R A Hulme AJ agreeing) granted leave to appeal but dismissed the appeal, upholding the primary judge's conclusion that the proceedings were not time-barred.

A taxonomy of "continuing offences"

A significant portion of the judgment was devoted to clarifying the amorphous concept of a "continuing offence." Kirk JA identified four broad and potentially overlapping categories: (1) once-and-for-all offences, where a person must do something by a particular time and failure to do so does not create an ongoing breach; (2) single continuing offences, where an ongoing obligation exists and failure to comply constitutes only one offence across the entire period of non-compliance; (3) offences where distinct breaches may occur at different times — each breach potentially constituting a separate offence, even if part of an ongoing course of conduct; and (4) daily or periodic offences, where the statute expressly treats the offence as recurring each day the contravention continues, often with daily penalties.

Kirk JA emphasised that the characterisation of an offence within these categories depends on legislative intention, informed by the text, context, and purpose of the statute, as well as the facts of the particular case. The Court identified several relevant considerations for this exercise, including the precise conduct proscribed, whether offenders have it in their power to remedy the situation, how penalties are structured, the nature of available defences, and the coherence of the statutory scheme.

Application to ss 19(1) and 33 of the WHS Act

Applying these principles, the Court held that the better view of ss 19(1) and 33 is that a distinct offence may be committed whenever the duty is not complied with at any time "while the workers are at work in the business or undertaking." The offence falls within the third category — meaning that the duty under s 19(1) is not a once-and-for-all obligation, nor one that, once breached, can only ever be prosecuted as a single offence. Rather, non-compliance at different times can give rise to distinct offences. This conclusion was supported by the broad, ongoing nature of the duty (to ensure health and safety "so far as is reasonably practicable"), the structure of the WHS Act's enforcement and penalty provisions, and the Act's protective purpose.

The practical consequence was that the observations made during the 2022 inspection were capable of constituting a distinct offence from anything observed in 2019. The 2019 and 2022 inspections disclosed different specific risks and breaches. Accordingly, the two-year limitation period ran from when the 2022 contravention came to the regulator's notice, and the proceedings were commenced within time.

The Court also expressed some doubt about the desirability of resolving limitation questions of this kind in advance of trial, given the factual complexity involved. Nevertheless, it proceeded to determine the appeal.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A duty under s 19(1) of the WHS Act is not a single, once-and-for-all obligation. The Court of Criminal Appeal held that a person conducting a business or undertaking can commit a distinct offence each time, or for each period, that they fail to comply with their health and safety duty while workers are at work, carrying significant implications for how limitation periods are calculated.

  • The concept of "continuing offence" is not monolithic. Rather than applying broad labels, the Court developed a four-category analytical framework for characterising continuing offences, clarifying that the characterisation of any given offence depends on close analysis of the particular legislative scheme and factual circumstances.

  • Under s 232 of the WHS Act, limitation periods may re-commence with new observations of non-compliance. Where distinct breaches of the s 19(1) duty are identified at different times, each may give rise to a fresh limitation period running from when that particular contravention first comes to the regulator's notice.

  • In dismissing the appeal, the Court expressed reservations about resolving limitation questions before trial, noting that the characterisation exercise often depends on findings of fact about the nature and distinctness of the alleged breaches, making pre-trial limitation challenges in WHS prosecutions difficult to sustain.

  • Provisions for daily penalties do not necessarily mean each day constitutes a separate offence. The Court noted that such provisions can be read as calibrating the maximum penalty for a single offence rather than automatically creating a new offence each day, a distinction relevant to charging decisions and double jeopardy considerations.

Legislation and Cases Referenced

Legislation:
- Work Health and Safety Act 2011 (NSW), ss 3, 17, 18, 19, 30, 32, 33, 191, 193, 195, 197, 211, 215, 229B, 232, 233, 242A–242D
- Work Health and Safety Regulation 2017 (NSW), cl 368; sch 14
- Criminal Appeal Act 1912 (NSW), ss 2(1), 5F
- Criminal Procedure Act 1986 (NSW), ss 156, 247G, 247W
- Protection of the Environment Operations Act 1997 (NSW), s 64
- Interpretation Act 1984 (WA), s 71(1)(e)

Key Cases:
- Cook v Cook (1923) 33 CLR 369
- Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125
- Environment Protection Authority v Bathurst City Council (1995) 89 LGERA 79
- Environment Protection Authority v Alkem Drums Pty Ltd [2000] NSWCCA 416
- Construction Forestry Mining and Energy Union v Mammoet Australia Pty Ltd (2013) 248 CLR 619
- Hodgetts v Chiltern District Council [1983] 2 AC 120
- Joseph v Worthington [