Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 Hearing dates: 07 April 2021 Date of orders: 13 May 2021 Decision date: 13 May 2021 Before: Gleeson JA at [1]
Garling J at [2]
Cavanagh J at [3]Decision: (1) The appeal is dismissed.
Catchwords: CRIME – Appeal against conviction – Procedural fairness – Duties of trial judge
EMPLOYMENT AND INDUSTRIAL LAW – Work health and safety – Offences – Application of s244(1) of the Work Health and Safety Act 2011 (NSW)
Legislation Cited: Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Occupational Health and Safety Act 1983 (NSW)
Work Health and Safety Act 2011 (NSW)
Cases Cited: Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Browne v Dunn (1893) 6 R 67
Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37
Day v SAS Trustee Corporation [2021] NSWCA 71
Deatons Pty Ltd v Flew (1949) 79 CLR 370; [1949] HCA 60
Hamod v State of New South Wales [2011] NSWCA 375
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4
Parker v DPP (1992) 28 NSWLR 282
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SafeWork NSW v Landmark Roofing Pty Ltd [2020] NSWDC 202
SafeWork NSW v Landmark Roofing Pty Ltd (No 2) [2020] NSWDC 420
Starks v RSM Security Pty Ltd & Ors [2004] NSWCA 351
WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166; [2004] NSWIRComm 207
Category: Principal judgment Parties: Landmark Roofing Pty Ltd (Appellant)
SafeWork NSW (Respondent)Representation: Counsel:
Solicitors:
J Glissan QC with P Barry (Appellant)
I Taylor SC with M Moir (Respondent)
Moray & Agnew Lawyers (Appellant)
Department of Customer Service (NSW) (Respondent)
File Number(s): 2019/83648 Publication restriction: None Decision under appeal
- Court or tribunal:
- District Court of NSW
- Jurisdiction:
- Criminal
- Citation:
- Date of Decision:
- 15 May 2020
- Before:
- Russell SC DCJ
- File Number(s):
- 2019/83648
Judgment
-
GLEESON JA: I agree with Cavanagh J.
-
GARLING J: I agree with the orders proposed by Cavanagh J for the reasons which he gives.
-
CAVANAGH J: On 8 March 2018, Brayden Asser was employed by the appellant in the first year of his apprenticeship as a roof plumber. He was 20 years of age.
-
He was working on the roof of a shed at premises in Mayfield, New South Wales, in the course of his employment, when he fell through the roof. Although he was working at a height of approximately 11 metres above the ground and working on the repair and replacement of a storm damaged roof, he…
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- Case
- [2021] NSWCCA 95
- Decision Date
CaseChat Overview and Summary
The primary legal issues the court had to resolve were whether the trial judge correctly interpreted and applied section 244(1) of the Work Health and Safety Act, and whether procedural fairness was upheld during the trial. The court examined whether the trial judge's instructions to the jury were clear and whether there was any miscarriage of justice due to potential misdirection or non-direction of the jury on critical points of law. Additionally, the court scrutinised the overall fairness of the trial process, including the judge's management of the proceedings.
In reaching its decision, the court determined that while the trial judge did not explicitly direct the jury on all aspects of section 244(1), the jury's verdict was nonetheless properly reached based on the evidence presented. The court found no miscarriage of justice and concluded that the trial judge's handling of the case, while not ideal, did not breach the principles of procedural fairness. The appeal was dismissed as the errors identified did not materially affect the outcome of the trial.
The court further clarified the correct interpretation of section 244(1) and provided guidance for future proceedings involving similar offences under the Act. The final orders included the affirmation of the original conviction of Landmark Roofing Pty Ltd and the dismissal of the appeal by SafeWork NSW.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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