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: 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
Romeyko v Samuels (1972) 2 SASR 529
S v The Queen (1989) 168 CLR 266; [1989] HCA 66
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:
Solicitors:
K Curry (Prosecutor)
P Gow (Defendant)
Department of Customer Service (Prosecutor)
McGirr & Associates (Defendant)
File Number(s): 2023/207096
Judgment
Introduction
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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.
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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…
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- AGLC
- SafeWork NSW v Acon Projects Pty Ltd [2024] NSWDC 275
- Case
- [2024] NSWDC 275
- Decision Date
CaseChat Overview and Summary
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
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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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