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

1. 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.

2. 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 his face. Mr Zahidi suffered serious injuries, including a traumatic brain injury, a bilateral subdural haemorrhage, depressed skull fractures, multiple fractured ribs, a fractured scapula and a pneumothorax.

The Summons

3. By a Summons filed in this court on 28 June 2023, SafeWork charged Acon with an offence contrary to s 31 of the Work Health and Safety Act 2011 (NSW) (the WHS Act). The Summons also pleads, in the alternative, a charge under s 32 of the WHS Act. The WHS Act describes a s 31 offence as a “Category 1” offence and a s 32 offence as a “Category 2” offence.

4. Section 31 of the WHS Act says:

“Gross negligence or reckless conduct—Category 1

(1)  A person commits a Category 1 offence if—

(a)  the person has a health and safety duty, and

(b)  the person, without reasonable excuse, engages in conduct that—

(i)  exposes an individual, to whom the duty is owed, to a risk of death or serious injury or illness, or

(ii)  if the person is an officer of a person conducting a business or undertaking—exposes an individual, to whom the person conducting a business or undertaking owes a health and safety duty, to a risk of death or serious injury or illness, and

(c)  the person—

(i)  engages in the conduct with gross negligence, or

(ii)  is reckless as to the risk to an individual of death or serious injury or illness.

Maximum penalty—

(a)  in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—3,465 penalty units or 5 years imprisonment or both, or

(b)  in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—6,925 penalty units or 5 years imprisonment or both, or

(c)  in the case of an offence committed by a body corporate—34,630 penalty units.

(2)  The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.”

5. Section 32 of the WHS Act says:

“Failure to comply with health and safety duty—Category 2

A person commits a Category 2 offence if—

(a)  the person has a health and safety duty, and

(b)  the person fails to comply with that duty, and

(c)  the failure exposes an individual to a risk of death or serious injury or illness.

Maximum penalty—

(a)  in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—1,730 penalty units, or

(b)  in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3,465 penalty units, or

(c)  in the case of an offence committed by a body corporate—17,315 penalty units.”

6. The description of the offences charged, contained in the Summons, is as follows:

“Before and on 1 July 2021 at 59 Fleet Street, Carlton NSW, Acon Projects Pty Ltd (the defendant), being a person conducting a business or undertaking who had a duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, without reasonable excuse, engaged in conduct that exposed one or more individuals to whom it owed that duty to a risk of death or serious injury, and who engaged in conduct with gross negligence, or was reckless as to the risk to one or more of those individuals of death or serious injury, those individuals being Assadullah Ehsani and Khaliqdad Zahidi, contrary to section 31 of the Act.

In the alternative, before and on 1 July 2021 at 59 Fleet Street, Carlton NSW, Acon Projects Pty Ltd (the defendant), being a person conducting a business or undertaking who had a duty under section 19(1) of the Work Health and Safety Act 2011 (the Act) to ensure, so far as is reasonably practicable, the health and safety of workers while the workers are at work in the business or undertaking, and who failed to comply with that duty and exposed one or more individuals to a risk of death or serious injury, those individuals being Assadullah Ehsani and Khaliqdad Zahidi, contrary to section 32 of the Act.”

Particulars of the Category 1 Charge

7. Annexed to the Summons and marked “A” were particulars of the defendant’s breach of duty under s 31 of the WHS Act. Annexed to the Summons and marked “B” were particulars of the defendant’s breach of duty under s 32 of the WHS Act.

8. Paragraph 15 of Annexure “A” provided the following particulars of the alleged breach of s 31 of the WHS Act by Acon:

“15. At all material times, the defendant, without reasonable excuse, engaged in conduct that exposed workers, including Mr Ehsani and Mr Zahidi, to whom it owed a duty under section 19(1) to a risk of death or serious injury, and who engaged in the conduct with gross negligence or was reckless as to the risk to workers, in that the conduct of the defendant involved one or more or a combination of the following:

(a)   Failing to undertake an adequate risk assessment for the tiling works that identified the risk of a fall from unprotected edges, assessed the risk and determined the most effective control measures to manage the risk;

(b)   Failing to provide a site induction or adequate site induction of workers involving identification of onsite hazards and risks;

(c)   Failing to develop, implement and enforce processes for consultation and reporting by workers of hazards and incidents;

(d)   Failing to develop, implement and enforce controls to manage the risk of falls from level 1 of the main building;

(e)   Failing to require Safe Work Method Statements (SWMS) to be provided by subcontractors prior to work being undertaken at the site;

(f)   Failing to develop, implement and enforce a SWMS for the tiling work that identified the hazard of unprotected edges and described the measures to be implemented to manage the hazard such as guarding or scaffolding;

(g)   Failing to provide information, training and instruction to workers about the hazard of working at heights and the measures implemented to guard against it in accordance with the SWMS;

(h)   Failing to provide supervision, or adequate supervision, to workers to ensure compliance with its SWMS; and/or

(i)   Failing to prevent sequencing of works that required work to take place and/or prohibit work on level 1 of the main building until adequate control measures were in place to protect against the hazard of unprotected edges.”

9. On 25 March 2024 Acon entered a plea of not guilty to the s 31 charge, but a plea of guilty to the s 32 charge.

Acon Notice of Motion

10. Acon filed a Notice of Motion in this court on 22 April 2024. It sought the following orders:

1. On the charge under ss 19(1)/31 of the WHS Act, the charge is bad for duplicity and/or uncertainty.

2. Within 14 days, on the charge under ss 19(1)/31 of the WHS Act, the prosecutor is to elect as to which fault element it intends to rely upon.

3. Costs.

4. Such further or other order as the court deems fit.

11. The parties filed the following Written Submissions:

1. Defendant’s Submissions on Notice of Motion dated 15 May 2024.

2. Prosecutor’s Outline of Submissions on Defence Notice of Motion dated 30 May 2024.

3. Defendant’s Submissions in Reply on Notice of Motion dated 5 June 2024.

History of s 31 of the WHS Act

12. In its original form, a Category 1 offence required the prosecutor to prove that “the person is reckless as to the risk to an individual of death or serious injury or illness”. The phrase “gross negligence” did not appear in the initial version of s 31 of the WHS Act.

13. Prior to its amendment in 2020, s 31 read as follows:

“31 Reckless conduct—Category 1

(1) A person commits a Category 1 offence if—

(a) the person has a health and safety duty, and

(b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and

(c) the person is reckless as to the risk to an individual of death or serious injury or illness.

Maximum penalty—

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$300,000 or 5 years imprisonment or both, or

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$600,000 or 5 years imprisonment or both, or

(c) in the case of an offence committed by a body corporate—$3,000,000.

(2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse.”

14. In that prior form, there were three distinct elements set out in s 31(1)(a), (b) and (c). There was no scope for an argument that a s 31 charge encompassing these three elements could be invalid for duplicity.

15. In 2018 a review of the model work health and safety laws by Ms Marie Boland (the Boland Review) was presented to Safe Work Australia. Chapter 6 of the Boland Review dealt with prosecutions and legal proceedings.

16. At p 119 of the Boland Review the following discussion of Category 1 prosecutions occurs:

“The Category 1 offence under s 31 of the model WHS Act does not require proof that there ‘was serious harm to any person’ but applies where there is ‘a risk of death or serious injury or illness’. The distinction is an important one. The Category 1 offence is risk-based.

There have been very few successful Category 1 prosecutions in any of the jurisdictions that have implemented the model WHS Act, which may in part be due to the difficulties associated with proving ‘recklessness.’ Recklessness in criminal law is intentional and requires the prosecution to prove a conscious choice to take an unjustified risk. Criminal negligence is, however, usually regarded as not requiring intent. Currently, if a PCBU knowingly endangers another person’s health and safety, they may be charged with a Category 1 offence. By adding a threshold for prosecution of gross negligence, a prosecutor can prosecute an offender for failing to conduct themselves safely or provide a safe environment for others, without having to establish this failure as being intentional. Instead it requires proof of ‘such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment’.”

17. At p 122 of the Boland Review the following conclusion was reached:

“Introducing ‘gross negligence’ to Category 1 offences

The ongoing debate over an appropriate response to workplace deaths is linked to the fact that the model WHS Act categories of offences are based on the degree of culpability, risk and harm and not on the actual consequence or outcome of the breach. This approach ensures that a duty holder can be held to account for a breach even when it has not resulted in an injury, illness or death (although in reality most prosecutions follow an injury or fatality).

There are two key issues relevant to the current debate over penalties:

• whether ‘gross negligence’ as well as ‘recklessness’ should be contained in the Category 1 offence under the WHS Act, and

•   whether all jurisdictions should reflect some version of the provisions in place in Queensland and the ACT to address gross negligence by corporations or senior officers resulting in a person’s death.

Having carefully considered all of the views and issues in relation to the debate over penalties, I consider that both of these proposals should be adopted. First, I am recommending that, consistent with Recommendation 56 of the 2008 National Review, the highest penalties under s 31 of the model WHS Act (Category 1 offence) should be applied in cases where very high culpability can be shown involving gross negligence.

Currently, s 31 of the model WHS Act specifically references the fault element of ‘recklessness’ but not ‘gross negligence’. Introducing ‘gross negligence’ as a fault element of the Category 1 offence will maintain the risk-based approach and will add that extra deterrent into the model WHS offence framework recommended by the 2008 National Review.

This change to the model WHS Act will assist prosecutors to secure convictions for the most egregious breaches of duties. This will assist in addressing community concerns that many PCBUs accused of serious WHS breaches are escaping punishment because the bar for conviction is set too high.”

18. The amendments to the WHS Act in 2020 were introduced by the Work Health and Safety Amendment (Review) Bill 2020 (NSW). In the Second Reading Speech delivered on 4 June 2020 the following was said:

“Secondly, the bill amends section 31 of the Act to make it easier to prosecute the most serious work health and safety offence—the Category 1 offence.

The Category 1 offence is committed when a person who owes a work health and safety duty recklessly exposes a person to whom that duty is owed to a risk of death or serious injury or illness.

The Category 1 offence carries the highest penalty imposed by the Act. An individual who commits a Category 1 offence is liable to imprisonment for up to 5 years and/or an increased fine of $346,500. A corporation who commits a Category 1 offence is liable to an increased fine of $3,463,000.

This offence is key to the deterrent power of the Act.

But in all jurisdictions which have adopted the model Work Health and Safety Act, it is rarely prosecuted.

In New South Wales, since the Act came into effect in 2012, there has been just one prosecution for a Category 1 offence.

The 2018 review identified the lack of Category 1 prosecutions as a serious issue with the offence provision in the Act. It found that regulators have been hampered in bringing prosecutions because the fault element of the offence, recklessness, is too difficult to prove.

A person acts recklessly when they have actual knowledge of a risk and consciously disregard it. This requires the prosecution to prove matters relating to the defendant's subjective state of mind.

The 2018 review proposed adding ‘gross negligence’ as a fault element to the Category 1 offence. This is a legal concept that has evolved through the common law on manslaughter by criminal negligence. A person is grossly negligent when their behaviour falls so far short of what is reasonable and involves such a high risk of death or serious injury that it deserves criminal punishment.

The bill gives effect to Ms Boland’s recommendation in New South Wales by adding ‘gross negligence’ as a fault element to the Category 1 offence.

This is expected to make it easier for regulators to bring Category 1 prosecutions, particularly following a workplace death. Those responsible for workplace deaths through gross negligence will be able to be held to account.

But a death is not required to bring a Category 1 prosecution. Regulators will be able to prosecute grossly negligent duty-holders who expose workers to a risk of death or serious injury or illness whether or not a worker is killed.”

19. The 2020 amendment resulted in the third element in s 31(1)(c) being more complex, in that the prosecution must prove that the defendant engaged in the conduct with gross negligence, or was reckless as to the risk to an individual of death or serious injury or illness.

20. The parties in these proceedings were in agreement that recklessness imported subjective considerations, but gross negligence required consideration of objective matters. Thus, it was argued for Acon, s 31 now created two offences, not one. Further, to plead the two different “fault elements” disjunctively was to charge Acon with two separate offences in the one count. Acon submitted that this was a case of patent duplicity.

Duplicity

21. In Walsh v Tattersall (1996) 188 CLR 77 at 84; [1996] HCA 26 Justices Dawson and Toohey approved the following statement concerning duplicity in Archbold, Criminal Pleading Evidence and Practice, (44^th ed, 1995, Sweet & Maxwell), Volume 1, p 75:

“The indictment must not be double, that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences… This rule, so simple to state is sometimes difficult to apply… Difficulty in account is a matter of form, not evidence.”

22. In Walsh v Tattersall Justices Dawson and Toohey also said at 84

“The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and say that he has the opportunity of making a no-case submission or a sensible plea in mitigation.”

23. In S v The Queen (1989) 168 CLR 266 at 284-285; [1989] HCA 66 Justices Gaudron and McHugh said:

“However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One in important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished, and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict.

The rule against duplicitous counts has also long-rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.”

24. In Ross on Crime, (9^th ed, 2022, Thomson Reuters, p 673) the learned author says:

“A statute may proscribe various acts. When those acts are included in one charge, the construction of the statue determines whether there is duplicity.”

25. Ross on Crime cites the decision of Bray CJ in Romeyko v Samuels (1972) 2 SASR 529 at 552, where the Chief Justice said:

“The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the Act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the Act in question possesses more than one of the forbidden characteristics, that result will follow.”

26. Counsel for the prosecutor referred to the decision of the Court of Criminal Appeal in R v Cramp [1999] NSWCCA 324 (Cramp). In that case the appellant was found guilty by a jury of the common law offence of manslaughter. The Crown relied upon two bases of guilt and presented its case in a way that entitled the jury to conclude that the death of the deceased resulted from the appellant’s unlawful and dangerous act, or from his gross negligence, or from both. Justice Barr, with whom Justices Sully and Ireland agreed, said:

“65 A distinction is to be made between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts. The cases to which I have referred speak about the former. This appeal is about the latter.

66 The jury were obliged to consider the whole of the conduct of the appellant for the purpose of considering whether he caused the death of the deceased by his unlawful and dangerous act or by his gross negligence. Each process of reasoning invited by the Crown rested on substantially the same factual basis.

67 Of course, there were differences between the ways the Crown put the case factually on each basis. The main one was that the appellant was said for the purposes of his gross negligence (but not for the purposes of his unlawful and dangerous act) to have permitted the deceased to drive the car whilst she was not wearing a seat belt. But that fact was not irrelevant to the jury’s consideration of the appellant’s unlawful and dangerous act. Whether the deceased was wearing a seat belt was relevant to the questions whether she drove negligently, furiously or recklessly or in a manner dangerous to the public or whilst under the influence of alcohol.”

27. That approach was referred to with approval in Chapman v R [2013] NSWCCA 91. Justice Adamson said at [19] that the object of the rule against duplicity has always been that there should be no uncertainty as to the offence charged. The rule against duplicity prohibits a single count in an indictment charging a person with the commission of more than one offence. At [25] her Honour, referring to Cramp, said:

“The cases draw a distinction, for the purpose of determining whether a count in an indictment is bad for duplicity, between alternative factual bases of liability on the one hand and alternative legal formulations of liability based on the same or substantially the same facts.”

Submissions for Acon

28. As previously recited, counsel for Acon submitted that s 31 now created two offences, and thus the form of the present charge was bad for duplicity as an example of patent duplicity.

29. Counsel for Acon submitted in the alternative that the charge was bad for uncertainty. Counsel cited Linehan v Australian Public Service Association (Fourth Division Officers) 44 ALR 289. In this decision Justice Fitzgerald of the Federal Court said at p 307:

“In my opinion, while duplicity is always concerned with the inclusion of more than one offence in a single charge, uncertainty has a considerably wider connotation. It extends also to ambiguity or other failure to describe even a single offence with appropriate clarity and detail, including charges such as the present which, although each is based upon a single set of facts, at least fail to identify the way in which the section is alleged to have been offended.”

30. In Written Submissions (MFI 1, par 36) counsel identified seven reasons why the Category 1 offence as pleaded was bad for patent duplicity and/or uncertainty.

31. The first reason advanced was that there is no provision in the WHS Act or the Criminal Procedure Act 1986 (NSW) permitting the prosecution to proceed in the alternative, such as a machinery provision entitling the prosecution to run a case in the alternative within the one charge. On the present form of the pleading, the prosecution is not attempting to do that. Rather, if there is a vice in the present charge, it is that the charge encompasses two offences. If it does, then it is duplicitous.

32. The second reason advanced was that s 233 of the WHS Act is not relevant. Section 233 permits the prosecution to allege more than one contravention of a health and safety duty provision in a single count. However, s 31 is not a health or safety duty provision. It was a matter of agreement between the defendant and the prosecutor that s 233 of the WHS Act had no application.

33. The third reason advanced was that there could be uncertainty in sentencing if the defendant were convicted on the s 31 charge which contained alternatives in accordance with s 31(1)(c) of the WHS Act. There are two answers to this proposition. The first is that this would be a summary trial, and the reasons of the trial judge would specify the basis upon which there was a finding of guilt. The second answer is that even where there is a jury verdict of guilty, but it is impossible to know the particular basis upon which that verdict was reached, it is then up to the sentencing judge to make findings so as to properly base a sentencing decision.

34. The fourth reason advanced was that the two fault elements are entirely different. Recklessness is subjective and gross negligence is objective. Recklessness is a state of mind which is personal to the defendant. It involves consideration as to foresight of a real possibility and involves the defendant going ahead and acting in spite of such foresight. As counsel expressed it: “It involves proof beyond reasonable doubt that the defendant actually thought about the consequences of the conduct and proceeded notwithstanding”. It was submitted that gross negligence on the other hand does not involve a state of mind like recklessness but does involve a consideration of the defendant’s conduct and the standard of care that a reasonable person would have exercised in the circumstances.

35. The fifth reason advanced was that the fault elements have different focusses. Gross negligence concerns conduct whereas recklessness concerns the risk.

36. The sixth reason advanced was that the evidence relating to one fault element might be different, or irrelevant, to the other fault element. As a matter of fairness, it was submitted, the defendant is entitled to know the boundaries of the charge in order to make proper objections to evidence and its relevance. It was submitted that if both fault elements were included in the prosecution, the defendant would be prejudiced in relation to knowing what evidence is relevant. It was also submitted that this would deprive the defendant of making a proper no-case submission should that opportunity arise.

37. The seventh reason advanced was that the defendant may seek to call evidence on one of the fault elements, but decide not to go into evidence on the other fault element. Proceeding on both fault elements at the same time would inevitably place the defendant in a position of potential prejudice to its defence and deprive it of a fair trial.

Consideration

38. Many of the authorities cited by counsel for the defendant concern cases where one charge was laid, but there were multiple offences committed. For example, in Johnson v Miller (1937) 59 CLR 469; [1937] HCA 77 the licensee of hotel premises was charged with allowing patrons on the premises during prohibited hours. The particulars suggested that 30 men had been seen coming out of the premises, but the charge simply referred to “a certain person”. In Walsh v Tattersall an employee was charged with obtaining by dishonest means payments or benefits under workers compensation legislation. While there was only one charge, he had obtained benefits on several occasions. In Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; [2013] NSWCCA 204 a corporation was charged with failing to comply with a condition of an environmental licence. The facts revealed that there had been acts and omissions by the company occurring on different days in respect of different areas of the company premises.

39. It is plain from the form of the Summons in the present proceedings that it relates to events on one day, and it relates to a series of steps which it is alleged that Acon should have taken but did not take. The charge does not relate to a series of events or events which occurred on a series of days. The cited authorities where it has been held that a charge was bad for duplicity involve “alternative factual bases of liability” as that phrase is used in Cramp. By contrast, the present case involves “alternative legal formulations of liability based on the same or substantially the same facts”.

40. I accept the submission of counsel for the prosecutor that s 31 creates one offence and not two. When s 31(1)(c) of the WHS Act provides that an element of the offence is that the person engages in the prohibited conduct with gross negligence, or is reckless as to the risk to an individual of death or serious injury or illness, it is prescribing alternative legal formulations of liability based on the same or substantially the same facts.

41. In Hannes v Director of Public Prosecutions(Cth) (No. 2) [2006] NSWCCA 373 (Hannes), Justice Basten said at [9]:

“There are two steps in the process of identifying duplicity or uncertainty. The first is to consider the statutory description of the offence in order to identify what is the act or conduct prohibited. The second is to identify the act or conduct set out in the pleading as constituting the offence in the particular case. Where a particular act is prohibited if it has one of a number of qualities, it is likely that only one offence is committed in relation to each act, even if such act has more than one of the proscribed qualities. There are many cases which illustrate this proposition. One referred to in argument in the present case was Montgomery v Stewart (1967) 116 CLR 220, which involved the issue of a company prospectus containing a number of untrue or misleading statements. Each such statement would have been sufficient to give rise to the offence, the prohibited act being the issue of the prospectus. There was only one offence committed by issuing the prospectus, whether there were two or more untrue or misleading statements contained in it. Accordingly, an information alleging several such statements was not bad for duplicity.”

42. The act which is prohibited under s 31 of the WHS Act is, without reasonable excuse, engaging in conduct that exposes an individual, to whom a health and safety duty is owed, to a risk of death or serious injury or illness. Such conduct is proscribed if it has one of two qualities. The first quality is where the defendant engages in the conduct with gross negligence. The second quality is where the person is reckless as to the risk to an individual of death or serious injury or illness. In accordance with the formulation in Hannes set out above, I find that only one offence is charged in the Summons, even though it alleges that the prohibited conduct has more than one proscribed quality, and that the two proscribed qualities are expressed in the alternative.

43. It is acknowledged that to plead both elements in s 31(1)(c) does pose practical and logistical difficulties for both the defendant and the court. It is correct, as submitted by counsel for the defendant, that the defendant will have to take objections to evidence having in mind that it is alleged that it was both reckless and guilty of gross negligence. However, it is not an unusual situation in a criminal trial for evidence to be admitted for two purposes or in relation to two issues. The defendant, knowing the case it has to meet from the present form of the Summons, will be alive to those matters and suitable objections can be taken. The court will be obliged to rule upon the objections and the defendant will then have clarity as to which aspects of the evidence are admitted in relation to each fault element.

44. I reject the submission that to allow the proceeding on both fault elements, as the prosecution intends, will create confusion and muddy the delineation between the two elements, leaving the court to compartmentalise the evidence into two categories. As previously stated, this is not an unusual feature in criminal trials, and it is not unusual for a defendant to have to deal with more than one issue in a trial.

45. Because I have come to the view that the present charge is a single charge and not a duplicitous charge, the points made by counsel for the defendant concerning a no-case submission or a decision to go into evidence, fall away. At the conclusion of the prosecution case, a forensic decision will have to be made in relation to both by the defendant. Again, this is not an unusual position in a criminal trial.

Conclusion and Orders

46. I reject the submissions for Acon that the charge under s 31 of the WHS Act is bad for duplicity or bad for uncertainty. The Notice of Motion will be dismissed. The parties were agreed that the appropriate costs order on the motion was to reserve such costs for determination at the conclusion of the proceedings.

47. The orders of the court are:

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.

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Decision last updated: 11 July 2024