SafeWork NSW v Acon Projects Pty Ltd - [2024] NSWDC 275

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275
Hearing dates: 3 July 2024
Date of orders: 11 July 2024
Decision date: 11 July 2024
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Dismiss the Notice of Motion filed by the defendant on 22 April 2024.
(2)   Reserve the costs of that Notice of Motion.
(3)   List the proceedings in the Work Health and Safety List at 9.30am on 22 July 2024.

Catchwords:
CRIMINAL PROCEDURE – duplicity – whether charge is bad for duplicity or uncertainty – whether s 31 Work Health and Safety Act creates two offences – recklessness or gross negligence – whether prosecution must elect a fault element

Legislation Cited:
Criminal Procedure Act 1986 (NSW)
Work Health and Safety Act 2011 (NSW), ss 19, 31, 32, 233
Work Health and Safety Amendment (Review) Bill 2020 (NSW)

Cases Cited:
Chapman v R [2013] NSWCCA 91
Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204
Hannes v Director of Public Prosecutions(Cth) (No. 2) [2006] NSWCCA 373
Johnson v Miller (1937) 59 CLR 469; [1937] HCA 77
Linehan v Australian Public Service Association (Fourth Division Officers) 44 ALR 289
R v Cramp [1999] NSWCCA 324
Romeyko v Samuels (1972) 2 SASR 529
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26

Texts Cited:
Archbold, Criminal Pleading Evidence and Practice, (44th ed, 1995, Sweet & Maxwell), Volume 1, p 75
David Ross and Mirko Bagaric, Ross on Crime, (9th ed, 2022, Thomson Reuters)
Marie Boland, Review of the Model Work Health and Safety Laws, Final Report, (December 2018)
New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 June 2020 at 2409

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Acon Projects Pty Ltd (Defendant)
Representation:
Counsel:
K Curry (Prosecutor)
P Gow (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
McGirr & Associates (Defendant)

File Number(s): 2023/207096

Judgment

Introduction

On 1 July 2021 Mr Khaliqdad Zahidi suffered serious injuries when he fell from a height while working at a building site at 59 Fleet Street in Carlton NSW. The defendant Acon Projects Pty Ltd (Acon) had been engaged by the owners of the Carlton site as the principal contractor for the construction of a two-storey residence and a granny flat. Acon engaged subcontractors to undertake construction work at the site. Mr Zahidi, and his fellow workmate Mr Assadullah Ehsani, were engaged by Acon to carry out tiling work.
The prosecutor SafeWork NSW (SafeWork) alleges that after Mr Zahidi and Mr Ehsani had undertaken tiling work in the bathroom located on the first floor of the main building, Mr Ehsani packed up his tools and waited outside for Mr Zahidi. When Mr Zahidi did not appear, Mr Ehsani went back inside the building and found Mr Zahidi lying face-down on the ground floor level with blood coming from one side of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SafeWork NSW v Acon Projects Pty Ltd

Details

AGLC: SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275
Case: [2024] NSWDC 275
Decision Date: 11 July 2024

CaseChat Overview and Summary

In the matter of SafeWork NSW versus Acon Projects Pty Ltd, the case before the court involved allegations of breaches under the Work Health and Safety Act. SafeWork NSW, representing the interests of the state, brought charges against Acon Projects, asserting violations of workplace safety regulations. The crux of the dispute was whether the charges against Acon Projects were validly formulated, particularly concerning the issue of duplicity and the requirement for the prosecution to specify a particular fault element under the statute.

The court was tasked with resolving several legal issues, including whether the charge was defective due to duplicity or uncertainty. Additionally, it needed to determine if section 31 of the Act established two separate offences, one involving recklessness and the other gross negligence, and whether the prosecution was obliged to elect a specific fault element before proceeding. These questions were critical to the integrity of the charges brought against Acon Projects.

The court meticulously examined the statutory language and relevant case law to discern the proper interpretation of section 31. It concluded that the charge was not inherently flawed due to duplicity or uncertainty. Furthermore, the court found that section 31 did not create two distinct offences but rather encompassed a spectrum of fault elements, with recklessness and gross negligence being two points on that spectrum. Consequently, the court ruled that the prosecution was not required to elect a specific fault element at the initial charge stage, as this could be determined during the trial. The court dismissed the defendant's motion and ordered the proceedings to be listed in the Work Health and Safety List for further adjudication.

Orders

Orders of the court

(1) Dismiss the Notice of Motion filed by the defendant on 22 April 2024.

(2) Reserve the costs of that Notice of Motion.

(3) List the proceedings in the Work Health and Safety List at 9.30am on 22 July 2024.

Background

Background to the litigation

Full text does not contain this section.

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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Medium Neutral Citation:	SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275
Hearing dates:	3 July 2024
Date of orders:	11 July 2024
Decision date:	11 July 2024
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Dismiss the Notice of Motion filed by the defendant on 22 April 2024. (2) Reserve the costs of that Notice of Motion. (3) List the proceedings in the Work Health and Safety List at 9.30am on 22 July 2024.
Catchwords:	CRIMINAL PROCEDURE – duplicity – whether charge is bad for duplicity or uncertainty – whether s 31 Work Health and Safety Act creates two offences – recklessness or gross negligence – whether prosecution must elect a fault element
Legislation Cited:	Criminal Procedure Act 1986 (NSW) Work Health and Safety Act 2011 (NSW), ss 19, 31, 32, 233 Work Health and Safety Amendment (Review) Bill 2020 (NSW)
Cases Cited:	Chapman v R [2013] NSWCCA 91 Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 Hannes v Director of Public Prosecutions(Cth) (No. 2) [2006] NSWCCA 373 Johnson v Miller (1937) 59 CLR 469; [1937] HCA 77 Linehan v Australian Public Service Association (Fourth Division Officers) 44 ALR 289 R v Cramp [1999] NSWCCA 324 Romeyko v Samuels (1972) 2 SASR 529 S v The Queen (1989) 168 CLR 266; [1989] HCA 66 Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26
Texts Cited:	Archbold, Criminal Pleading Evidence and Practice, (44th ed, 1995, Sweet & Maxwell), Volume 1, p 75 David Ross and Mirko Bagaric, Ross on Crime, (9th ed, 2022, Thomson Reuters) Marie Boland, Review of the Model Work Health and Safety Laws, Final Report, (December 2018) New South Wales Legislative Council, Parliamentary Debates (Hansard), 4 June 2020 at 2409
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Acon Projects Pty Ltd (Defendant)
Representation:	Counsel: K Curry (Prosecutor) P Gow (Defendant) Solicitors: Department of Customer Service (Prosecutor) McGirr & Associates (Defendant)
File Number(s):	2023/207096