SafeWork NSW v BOC Limited

SafeWork NSW (the applicant) sought judicial review of an acquittal entered in favour of BOC Limited (the respondent) in the District Court of New South Wales. The prosecution alleged that BOC Limited had breached its duty under section 19(2) of the *Work Health and Safety Act 2011* (NSW) by failing to ensure, so far as was reasonably practicable, that the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business or undertaking. The acquittal followed findings by the trial judge that the conduct of a BOC employee, which gave rise to the risk, was dishonest and that this dishonesty was a novus actus interveniens, breaking the chain of causation between BOC's conduct and the risk.

The primary legal issue before the Supreme Court of New South Wales was whether the applicant, as a prosecutor, could invoke the supervisory jurisdiction of the Supreme Court to review an acquittal in circumstances where the acquittal was based on findings of fact made by the trial judge, particularly in light of the principle of double jeopardy. A further issue concerned whether the applicant had failed to avail itself of alternative avenues for review, such as seeking a stated case from the Court of Criminal Appeal or applying to the trial judge for clarification, before attempting to invoke the Supreme Court's supervisory jurisdiction.

The Court of Appeal held that the supervisory jurisdiction of the Supreme Court was not engaged in this instance. It affirmed that the principle of double jeopardy generally precludes a review of an acquittal, even in the supervisory jurisdiction, unless exceptional circumstances are demonstrated. The Court found that the applicant had not established such exceptional circumstances, particularly as the acquittal was based on findings of fact made by the trial judge after a full hearing. Furthermore, the Court noted that the applicant had failed to pursue available procedural avenues for review prior to seeking to invoke the supervisory jurisdiction, which weighed against the exercise of its discretion to grant relief.

The summons filed on 25 June 2020 was dismissed, and SafeWork NSW was ordered to pay BOC Limited's costs.