(a) the design capacity for the shoring wall was not equal to or greater than the design action effect, as required by clause 7.2 of the Australian Standard AS1170.0; and

(b) the design of the shoring wall was incapable of supporting the ground forces when a minimum pressure of 0.2Ka was applied.

1. While the cause of the excavation collapse cannot be stated with certainty, the fact that the inadequacy of the shoring wall design was a likely contributor to the collapse demonstrates that the inadequacy in the design gave rise to a risk of collapse.
2. I am therefore satisfied that SDCC failed to take reasonably practicable steps to ensure the health and safety of persons in the vicinity of the Site and, accordingly, I am satisfied beyond reasonable doubt that SDCC, through its officers and employees, failed to comply with its duty under s 19 to ensure, so far as was reasonably practicable, that the health and safety of other persons in the vicinity of the Site was not put at risk from the work it carried out as part of the conduct of its business in preparing the shoring wall system for the Site excavation.
3. The Prosecution alleges that the failure occurred between 14 November 2019 and 7 August 2022. They submit that it is difficult to pinpoint any specific dates upon which the relevant acts or omissions occurred.
4. In my view, the breach of SDCC's duty occurred on 4 March 2022. It was the design revision that was produced on that date that Viking used to construct the shoring wall when it excavated the Site. As the Prosecution submits, the risk to individuals at or around the Site materialised once the excavation progressed below the base of the piles, which occurred at some point between 4 and 6 March 2022.

1. While it is possible that the offending conduct (the preparation and submission of the inadequate shoring wall design) occurred outside the ACT (given that SDCC's office was located in Silverwater, NSW), I accept the Prosecution's submission that the implementation of the design (through the construction of the shoring wall) and the consequent risk to persons in the vicinity of the Site occurred in the ACT (at the Site).
2. Accordingly, even if the physical elements of the offence all occurred (and the offence was therefore committed) outside the ACT (s 63, Criminal Code 2002 (Criminal Code)), I am satisfied that the place where the offence had an effect was in the ACT (s 63, Criminal Code 2002) and that a geographical nexus therefore exists between the ACT and the offence (s 64, Criminal Code 2002). I am thus satisfied that the offence created by the WHS Act extends beyond the territorial limits of the ACT to the offending conduct (s 11, WHS Act; s 62(2), Criminal Code 2002).

SDCC's failure to comply with its primary duty of care exposed individuals to a risk of death or serious injury

1. I am satisfied beyond reasonable doubt that SDCC's failure to comply with its primary duty of care exposed individuals to a risk of death or serious injury. SDCC's failure to comply with its duty resulted in a shoring wall being constructed at the Site that was inadequate to prevent the excavation collapsing, as ultimately occurred, at least once the excavation progressed below the depth of the piles.
2. Further, as I have found earlier in these reasons, the collapse of the excavation risked the death of any workers who were within 15 metres of the collapsed wall face and the death of the occupants of any car which fell into the excavation. Given the regular attendance of workers at the site and the use of Sky Park by members of the public, multiple fatalities were a very real possibility as a result of the inadequate shoring wall design that SDCC prepared.
3. Accordingly, I am satisfied that SDCC's failure to provide an adequate design for the shoring wall exposed persons in the vicinity of the Site to the risk of death.

1. I find The Structural Design and Construction Company Pty Ltd guilty of committing a Category 2 offence, contrary to s 32 of the Work Health and Safety Act 2011.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate Temby.