SafeWork NSW v Scharfe

Case [2021] NSWDC 260


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: SafeWork NSW v Scharfe [2021] NSWDC 260
Hearing dates: 24, 25, 27 and 28 May 2021
Date of orders: 18 June 2021
Decision date: 18 June 2021
Jurisdiction:Criminal
Before: Scotting DCJ
Decision:

1. The prosecutor has failed to establish all of the elements of the offence beyond reasonable doubt.

2. The matter is adjourned to Friday 9 July 2021 for the making of final orders or to consider any application of the prosecutor to state questions to the Court of Criminal Appeal

Catchwords:

CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – worker injured

Legislation Cited:

Interpretation Act 1987

Occupational Health and Safety Act 1983 (NSW)

Occupational Health and Safety Act 2000

Work Health and Safety Act 2011

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenuew (Northern Territory) (2009) 239 CLR 27

Bulga Underground Operations v Nash [2016] NSWCCA 37

Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467

Certain Lloyd’s Underwriters v Cross (2012) 87 ALJR 131

Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50

Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503

Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197

Inspector Dowling v Farmer (unreported Chief Industrial Magistrate’s Court 2002).

Inspector Game v Lucas (unreported Chief Industrial Magistrate’s Court of New South Wales 1991)

Inspector Maddaford v Pontelle (unreported Chief Industrial Magistrate’s Court 2003).

Inspector Martin v Russell Larkham [2003] NSWIRComm 31

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Maloney v Commissioner for Railways (1978) 18 ALR

Neindorf v Junkovic (2005) 80 ALJR 341

O’Grady v Fernandez (unreported Magistrate’s Court of Victoria 2002)

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R v Board of Trustees of the Science Museum [1993] 1 WLR 1171

R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321

R v Irvine [2009] VSCA 239

R v Matthew Lever (unreported Magistrate’s Court of Victoria 2010).

Re Bolton; Ex Parte Beane (1987) 162 CLR 514

Royall v The Queen (1991) 172 CLR 378

Safework NSW v Alejandro Bocaz [2017] NSWDC 271

SafeWork NSW v Turner [2020] NSWDC 180

Seltsam v McNeill [2006] NSWCA 158

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316

Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304

Stevenson v Hoggard [1992] SAIRC 41

Tame v New South Wales (2002) 211 CLR 317

Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94

Vairy v Wyong Shire Council (2005) 223 CLR 426

WorkCover Authority of New South Wales (Inspector Gordon) v Gregory Ronald Wallis

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Details
AGLC
SafeWork NSW v Scharfe [2021] NSWDC 260
Case
[2021] NSWDC 260
Decision Date

CaseChat Overview and Summary

SafeWork NSW prosecuted Scharfe in the Local Court on charges arising from a workplace incident where a worker was injured. The prosecution alleged that Scharfe had failed to comply with his statutory obligations under the Work Health and Safety Act 2011 by not taking reasonable steps to ensure the health and safety of his workers, which resulted in the worker's injury. The court had to determine whether Scharfe had breached his duty of care by not taking reasonable steps to prevent the risk of serious injury to the worker.

The primary legal issue before the court was whether the prosecution had proven beyond reasonable doubt that Scharfe had failed to take reasonable steps to ensure the safety of the worker. This involved examining the specific duties owed by Scharfe under the Act and assessing whether there was a sufficient causal link between Scharfe's actions and the worker's injury. The court also needed to consider whether Scharfe had any defences available to him, such as taking all reasonable steps to mitigate the risks.

The court found that the prosecution had not established all the elements of the offence beyond reasonable doubt. The evidence did not clearly demonstrate that Scharfe had failed to take reasonable steps to prevent the risk of injury. The court found that while there were some shortcomings in the safety measures in place, these were not enough to prove that Scharfe had breached his duty of care. As a result, the court acquitted Scharfe of the charges. The matter was adjourned for the making of final orders or to consider any potential application by the prosecutor to state questions to the Court of Criminal Appeal.

Orders

Orders of the court

1. The prosecutor has failed to establish all of the elements of the offence beyond reasonable doubt.

2. The matter is adjourned to Friday 9 July 2021 for the making of final orders or to consider any application of the prosecutor to state questions to the Court of Criminal Appeal

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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