SafeWork NSW v BOC Limited

Background to present application

1. In mid-July 2015 the respondent undertook work at Bankstown-Lidcombe Hospital installing oxygen and nitrous oxide piping to operating theatre 8. As a result of incorrect connection and labelling of the gas lines, the outlet labelled "oxygen" in fact delivered nitrous oxide. The error was not discovered until 21 July 2016. Over that year, 658 caesarean deliveries were undertaken at the hospital; 418 were emergency deliveries. Each new-born was potentially at risk if operating theatre 8 had been used. Of those deliveries, 36 were in fact undertaken in operating theatre 8. Two babies, delivered on 20 June 2016 and 13 July 2016 respectively, required oxygen. As a result of the crossed lines, each was inadvertently administered nitrous oxide. One survived, with serious brain damage, but the other died. The cross-connection error was identified on 21 July 2016, when the gas outlets were tested.
2. A summons filed in the District Court on 12 July 2018 alleged that the respondent had breached the obligation imposed by s 19(2) of the Work Health and Safety Act to ensure, so far as reasonably practicable, that the health and safety of persons was not put at risk from work carried out in the course of its business. The risk identified was the risk to other persons, and specifically babies, suffering serious injury or death as a result of the administration of nitrous oxide instead of oxygen in the course of undergoing a resuscitation procedure. Eight particulars of breach were identified. Of central importance was particular (b) requiring the adoption of a "safe work procedure" which required: "i. connection of the port to the existing pipe work to be undertaken in only one gas system at a time to minimise the risk of cross-connection; and/or ii. testing by a designated person to determine that the concentration of oxygen was correct and that there was no contamination; and/or iii. the testing referred to in subparagraph ii above to be conducted: 1. in the presence of a member of [the Hospital] experienced in the administration of [medical] gasses to patients; or 2. by the anaesthetist in charge [or] a delegated anaesthetist".
3. The prosecutor alleged that cross-connection occurred because (i) the employees responsible for undertaking the work in fact worked on both lines at once, (ii) the completed work was not in fact tested, and (iii) test certificates were signed by one of the respondent's staff, and counter-signed by an employee of NSW Health as having witnessed the testing, although no testing had in fact taken place.
4. The dispositive reasoning of the trial judge was as follows: "[211] The prosecution submits that the failures of the defendant are two steps. The first being with regard to the cutting-in process, the second being the testing and commissioning prior to handover. [212] The defendant submits that is not correct, that it is simply the failure of the testing procedure that is a one step program, because that procedure is fool proof. [213] The defendant's case is that it matters not how the cutting-in process was done, because if the testing procedures as detailed in the testing forms had been followed correctly, the mistake would have been evident and risk could have been eliminated. [214] If the testing had been done by Mr Turner, and such testing had been witnessed by Mr Brightwell, the error would have been revealed. [215] I accept, however, whilst the testing process was in effect fool proof, it cannot be so when persons involved in the process engage in falsehoods. [216] Whether or not Mr Turner did the testing at all or inappropriately, he lied to Mr Brightwell, to the defendant and to BLH that the testing had been done at all or appropriately done. The Testing Forms were in triplicate - one for the installer (here Mr Turner), one for the company contracted to do the works (here the defendant) and one for the client (here BLH). [217] In signing the forms in the way he did, and then returning those forms to the defendant and BLH, he has represented to them that the work was done in accordance with the Forms, which it was not. He has therefore lied to the defendant and BLH. [218] Similarly, Mr Brightwell in signing the forms as having witnessed the testing, which he admits that he did not, he has lied to the defendant and his employer, BLH. [219] The handover process that had to occur before the theatres could be used, was corrupted by these lies. The introduced panels in the theatres could not be utilised until the appropriate commissioning testing had been done. It is only then that the works can be handed back to BLH, and the use of the theatres recommenced. [220] The babies were put at risk at the point in time the commissioning and handover was completed. They were put at risk because of the lies by Mr Turner and Mr Brightwell. [221] I do not accept that it was foreseeable for the defendant to anticipate that two workers performing duties with which they were both familiar, which they had both done before, would lie about what they in fact had done. [222] As such, the defendant cannot be held responsible for the behaviour of a disobedient worker, Mr Turner, for his conduct which I view as lying: …. [223] Mr Turner's conduct in signing the forms as the testing having been done, or done appropriately, was not mere inadvertence or a mistake. [224] The application of common sense to the facts … suggests that the conduct of Mr Turner and Mr Brightwell in lying cannot be attributable to the defendant. The complaints made by the prosecution that there was no appropriate SWMS [Safe Work Method Statement] or training of the workers, seem to pale in significance in circumstances where Mr Turner and Mr Brightwell lied. One could not be confident that even if they were both given additional training and more detailed SWMS, that they would have followed the procedures contained therein."
5. The applicant challenged the reasoning of the trial judge that because the testing process was supposedly "fool proof", the earlier failures to comply with safe work practices in carrying out the installation work were immaterial. Earlier in her reasons, the judge had correctly identified the question of causation as asking "whether the act or omission of the defendant was a significant or substantial cause of the exposure to the risk of injury", referring to the judgment of the Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash. [7] The applicant submitted that there were self-evidently two separate and independent failures to comply with safe work practices. Rejection of the materiality of the prosecution case with respect to the cutting-in process was said to be an error. Such an error in the application of the law might have been corrected on an appeal by way of rehearing. The applicant submitted it was more than that, being sufficiently egregious to warrant characterisation as a jurisdictional error. Resisting that characterisation, the respondent submitted that the judge was under no misunderstanding as to the nature of the task to be undertaken and had neither exceeded, nor failed to engage with, her proper function.
6. Secondly, the applicant contended that dismissing the egregious behaviour of the employee (Mr Turner) as something for which the company could not be responsible was also an egregious error, and thus a jurisdictional error. It submitted that the inference that the employee had not been properly trained as to the nature of, and the importance of compliance with, safe work practices in respect of laying and connecting the pipes and testing the work done, was readily available in the circumstances. Training and supervision were functions of the employer. The employee was not on a frolic of his own, but carrying out the work required, albeit in a negligent and slipshod manner. Again, it was submitted, the error in failing to find that the respondent was responsible for breaches of duty which led to the employee's non-compliance with directions was equally egregious and hence constituted jurisdictional error. It may be accepted that such an error was one which could have been corrected on an appeal by way of rehearing, but, the respondent contended, it was not an error of the kind which demonstrated any departure by the judge from the exercise of the judicial function with respect to the elements of the prosecution case, nor in failing to address submissions made on the evidence.
7. What has been outlined above is sufficient to identify the high points of the applicant's case. It is not necessary or appropriate to go further unless it is established that this Court can exercise its supervisory jurisdiction with respect to the ultimate outcome, namely the acquittal of the respondent.

(a) identifying the issue

1. The fundamental general law value is that a person should not be placed in jeopardy of conviction more than once for a particular offence arising out of the one course of conduct.
2. Double jeopardy can occur serially or concurrently. A clear statement of the principle is found in Pearce v The Queen [8] which was concerned with concurrent overlapping charges. While the Court noted the important proposition that prosecutors "should not multiply charges unnecessarily", [9] and that multiple charges could involve an abuse of process, it concluded that where offences contained different elements and two charges are necessary to reflect the whole of the accused's criminality, [10] the principle against double jeopardy is not engaged.
3. Further, the joint reasons of McHugh, Hayne and Callinan JJ identified the rationale of the principle, in terms directly applicable to the serial prosecution of the same charge: "[10] If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States: [11] 'The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'"
4. Before exploring the operation of the principle in the application of the Court's supervisory jurisdiction, it is convenient to note the history of statutory appeals in criminal cases. That is because a significant body of case law has considered whether generic provisions conferring rights of appeal extend to appeals from acquittals. Those provisions have been universally construed by application of the clear statement principle, or principle of legality. Allowing an appeal against an acquittal would create double jeopardy because the accused would be put on trial for a second time with respect to the one offence. At least that will be so where there has been a contested trial: the position may be different where a charge is dismissed without a trial. If, as is inherent in the applicant's case, there has always been relief available in the supervisory jurisdiction to quash or set aside an acquittal, any principle precluding double jeopardy must be seen as subject to an important qualification. No case construing appeal provisions so as not to apply to acquittals has identified any such general qualification.

(b) appeals from acquittals

1. As noted above, there is an appeal provision relevant to the present case, namely s 5AE of the Criminal Appeal Act: 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit.
2. The history and operation of this provision has recently been comprehensively addressed by Bathurst CJ and Bell P in Orr v Cobar Management Pty Ltd. [12] Importantly for present purposes, the joint reasons noted the issue raised in the following terms: "[75] Cobar contended that, as a matter of the proper construction of s 5AE of the Criminal Appeal Act, the submission of the questions to this Court was 'too late'. Section 5AE only permits questions to be submitted '[a]t any time before the completion of proceedings', and it was submitted that the proceedings had, at least in substance, been completed following the handing down of the primary judgment, in which the primary judge expressed his unqualified conclusion that the prosecutor had failed to establish two elements of the offence (the construction argument). Part of this argument was to the effect that form should not be elevated over substance. [76] Cobar invoked various canons of statutory interpretation which it submitted aided its interpretation …. These were that s 5AE should be interpreted in such a way so as not to expose Cobar to double jeopardy (the double jeopardy argument), and should not be interpreted in a way which would, in substance, afford the prosecutor a right of appeal on questions of law, in circumstances where the legislature made no provision for an appeal from an acquittal. This statutory omission was said to be all the more significant in circumstances where an express 'all grounds' right of appeal from an acquittal had existed under the Industrial Relations Act, when the summary criminal jurisdiction in respect of work, health and safety offences lay with the IRC (the de facto appeal argument). [77] The double jeopardy argument was the platform from which the Court was taken, with a degree of rhetorical flourish, to statements of high authority and powerful forensic appeal. Thus it was submitted, for example, that the fact that the Crown does not, at common law, have a right of appeal from an acquittal is a fundamental principle which may only be modified by clear statutory language …. [13] [78] It was also submitted that exposure to double jeopardy involved a violation of art 14 para 7 of the International Covenant on Civil and Political Rights, which provides that: 'No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.' … [79] The force of the so-called principle of legality or 'clear statement' approach in the context of the double jeopardy argument and the de facto appeal argument really depended on the correctness of the construction argument because if, as the prosecutor contended, the expression 'the completion of proceedings' in s 5AE meant their disposition by formal court order (such as an order finding or declaring the defendant to be not guilty or dismissing the summons by reference to which the prosecution was brought), there would be no double jeopardy or de facto appeal since, ex hypothesi, there would not have been any acquittal at the time of submission of questions to the Court of Criminal Appeal, no final dispositive orders having been made, and thereby nothing to appeal from." Ultimately, the question of the effect of an acquittal did not need to be determined because "the publication of the primary judge's reasons for judgment in the present case did not preclude the subsequent submission of questions of law to this Court, as no formal orders had been made." [14] However, the case provides an example of how well-established principles of construction may invoke the double jeopardy principle.

(c) appeal from acquittal - first level appeal

1. The cases further reveal a lively dispute as to whether a decision by an intermediate court of appeal overturning a conviction and substituting an acquittal can itself be overturned by a further appeal which would then, if upheld, deprive the person charged of the benefit of the acquittal in the intermediate court.
2. In 1890, prior to the introduction of general rights of appeal in criminal cases, the Highway Act, 1835 (UK) [21] imposed a penalty for wilfully obstructing a highway. Section 105 conferred a right of appeal to quarter sessions from "any order, conviction, judgment, or determination" under the Act. An attempt by an unsuccessful informant to appeal failed; an application for mandamus to compel the justices to hear an appeal also failed: The Queen v The Keepers of the Peace and Justices of the County of London ("London Justices"). [22] Lord Coleridge CJ observed: [23] "The question arises on the Act of 1835, and a claim to have an appeal after acquittal is now for the first time made, although there must have been thousands of instances of acquittals which have dissatisfied the prosecutors. … [I]f it were enough to find a word or two in a section of this kind which would carry an appeal, the argument for the appellant would be entitled to succeed, for there are words capable of the meaning contended for. But that is not quite the way in which the section should be regarded when we are asked to hold that there is an appeal after acquittal, which is, primâ facie, not given by law. A person is prosecuted for some breach of the law which is to be proved in a particular way. The general principle of law is that, if acquitted, he is not to be a second time vexed." Wills J stated: [24] "Long before the Highway Act of 1835, there were similar statutory provisions, and yet no instance can be found in the books of an appeal successfully prosecuted, or even attempted to be brought, after an acquittal. … The argument arising from the total absence of precedent is almost unanswerable."
3. The Full Court of the Federal Court held in Thompson v Mastertouch TV Service Pty Ltd [No 3], [25] that the general provision in s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth), conferring jurisdiction to hear and determine "appeals from judgments of the court constituted by a single judge exercising the original jurisdiction of the court", did not extend to jurisdiction to hear an appeal from an acquittal in criminal proceedings.

(d) appeal from acquittal on appeal

1. The cases dealing with an acquittal by an intermediate appeal court setting aside a conviction at trial show a willingness to construe the statute as permitting the reinstatement of the initial conviction.
2. Harry Messel was convicted of offences under the Fisheries Act 1965 (NT). The Supreme Court of the Northern Territory allowed the appeal and quashed the convictions. The prosecutor then brought a further appeal to the Full Court of the Federal Court which rejected the further appeal on the basis that no appeal lay from the judgment of acquittal in the Supreme Court. The prosecutor's right to seek special leave to appeal to the High Court was itself controversial, but was held to fall within the constitutional jurisdiction of the High Court under s 73 of the Commonwealth Constitution. In Davern v Messel, [26] the High Court (Murphy and Deane JJ dissenting) set aside the decision of the Full Court of the Federal Court, holding that the latter had power to hear and determine the appeal by the prosecutor from the quashing of the conviction.
3. In dissent, Deane J (the author of the principal judgment in Mastertouch) explained: [27] "The basis of that decision was that there is a general common law rule that a person is entitled to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction and that that rule is not, upon proper principles of interpretation, to be swept aside by the general terms of a statute which exhibits no underlying policy in that regard and which contains nothing which clearly and unmistakably indicates that any such effect was intended."
4. Murphy J (also in dissent) stated: [28] "An artificial distinction should not be drawn between acquittals at first instance and at other stages. The result of a subsequent prosecution appeal is the same. It puts the person in jeopardy after an acquittal. The fact that the acquittal on appeal may have occurred because of what is considered to be a legal error by the acquitting court, is not material. The same could occur whether it is at first instance or on appeal. The purpose of the rule is to protect persons who have been acquitted even by legal error. The person is not to be put in jeopardy after an acquittal, mistaken or not."
5. The adoption of the clear statement rule in construing appeal provisions is relevant, not because the case involves the construction of an appeal provision, but because the cases reveal the strength of the presumption that a statute would not allow a challenge to an acquittal, absent a clear statement of that intention, because it would be liable to place the defendant in a position of double jeopardy.

(e) quashing acquittals in the supervisory jurisdiction

1. In 1881, nine years before London Justices, an order nisi for certiorari was discharged by a Divisional Court presided over by Lord Coleridge CJ (Field and Bowen JJ agreeing) in Reg v Duncan. [29] The grounds relied upon were (i) the improper reception of evidence, (ii) misdirection, and (iii) that the verdict was against the weight of evidence. The Chief Justice stated: [30] "It is plain that we cannot interfere. What may have been the constitutional or legal principles on which the practice was founded it is much too late to inquire. The practice of the Courts has been settled for centuries, and is that in all cases of a criminal kind where a prisoner or defendant is in danger of imprisonment no new trial will be granted if the prisoner or defendant, having stood in that danger, has been acquitted." After referring to contrary authority which had been overruled, he continued: [31] "The case, therefore, stands absolutely bare of authority. We are asked for the first time to grant a new trial after an acquittal on an indictment placing the defendant in peril of imprisonment. If the legislature thinks fit to declare that new trials shall be granted after acquittals for felonies, misdemeanours, or both, it may of course do so. But we sitting here cannot but follow a clearly ascertained line of practice."
2. Although it is not fashionable to distinguish forms of "jurisdictional error", that phrase encompasses (i) an incorrectly constituted tribunal, (ii) the irregular conduct of a hearing, and (iii) an irregular outcome. The grounds relied on in Reg v Duncan fell within (ii) and (iii): there remained a question (not raised by the present case) as to whether certiorari would lie in respect of (i).
3. In 1913, in R v Simpson, [32] two coalminers were charged with failing to observe directions, in contravention of s 74 of the Coal Mines Act 1911 (UK). Proceedings for an offence under the Act could be taken in a court of summary jurisdiction, but not before a justice who was employed in a mine. After the defendants were acquitted, the prosecutor discovered that one of the justices was employed in a colliery. The justice being disqualified, the decision was sought to be quashed on the basis that the Court of Petty Sessions as constituted had no power to hear and determine the information. There were differences in the reasoning of the three members of the Divisional Court, Ridley J, Scrutton J and Bailhache J. Scrutton J stated that "there never has been a case in which an acquittal by a court of summary jurisdiction has been quashed by certiorari," but was content to leave the question to be determined if the defendants were charged again and pleaded autrefois acquit. However, Bailhache J stated: [33] "In my opinion this Court ought to be very slow to quash an acquittal, for it is a time-honoured maxim of our law that a man, whether he has been acquitted or convicted, should not be tried twice for the same offence. I do not think we ought to interfere in a case like this, where the adjudicating tribunal was apparently competent but in fact one member of it was disqualified, but only where the tribunal was of obviously incompetent jurisdiction or was exercising a jurisdiction manifestly in excess of its powers. I desire to adopt the following passage from the judgment of Lord O'Brien C.J. in Reg. v. Justices of Antrim [34] , which was quoted by him in Rex v. Justices of Galway: [35] 'If the case were one where the tribunal was ex facie wholly unauthorized, and the accusation and the accused plainly coram non judice, the matter would be entirely different. In such a case the pretended adjudication of the usurping tribunal would appear to be a mere nullity, not merely voidable, but void.' If a case of that sort were to come before this Court, it may be that we ought to interfere and grant a certiorari to quash acquittal, although there is no authority for doing so, but, except in the very clear class of case of want of jurisdiction suggested by Lord O'Brien CJ, I am of opinion that certiorari ought not to be granted to quash an acquittal."

Applicant's supplementary written submissions

1. The applicants sought to resist this conclusion on three grounds. They may be characterised as (i) voidness, (ii) constructive failure to exercise jurisdiction, and (iii) judicial authority.

(a) voidness

1. Characterising a decision as a "nullity" or as "null and void" is to identify an imprecise conclusion.
2. As noted by Aronson, Groves and Weeks, "nullity" is a conclusory term with a meaning that depends on its context. [51] The relevant context in the present case is an application to review an acquittal. If the judgment were truly a nullity, SafeWork could simply seek to have the charge relisted for hearing in the District Court; no doubt that would provoke a plea of autrefois acquit on the part of the respondent, the substance of which would then be debated before a District Court judge. It is unsurprising that the prosecutor has not taken that course. The mere fact that there would need to be a court hearing to determine whether a plea of autrefois acquit should be accepted demonstrates that the judgment of the District Court was not without practical and legal consequences.
3. The present question is whether one of those consequences was that the respondent has been at risk of conviction once already. Clearly it has been. The charge before the court was not itself insufficient to invoke the jurisdiction of the court and to provide a basis for a trial. Throughout the trial, the respondent was at risk of being convicted. In that sense, it was inaccurate to describe the trial as a nullity or as null and void.

(b) constructive failure to exercise jurisdiction

1. The phrase "constructive failure to exercise jurisdiction" is, like nullity and jurisdictional error, a conclusory label. It encompasses, potentially, a range of errors. Use of the term "constructive" concedes that there has been no express refusal to exercise a jurisdiction which the tribunal in fact possessed, nor the usurpation of a jurisdiction it did not possess. Prosecutions for unsafe work practices used to take place in the Industrial Commission; if the present charges had been brought in the Commission, and the Commission had purported to determine them, there would have been a usurpation of jurisdiction. There is, however, no doubt that the District Court had jurisdiction to hear the charges, and did so. In its final judgment, the Court ruled on various matters in ways with which the prosecutor takes issue, as noted above. Suffice it to say that none of them involves an erroneous refusal by the District Court to exercise the jurisdiction to deal with the charges, nor were the proceedings brought by the prosecutor in the wrong tribunal. Further, nothing in the nature of fraud on the part of the respondent was alleged. For the reasons set out above, even errors which might in some circumstances be described as "jurisdictional" will not suffice to allow an appeal from, or review of, an acquittal of criminal charges. Adopting the label of constructive failure to exercise jurisdiction takes the matter no further.
2. It should not be assumed that all forms of jurisdictional error have the same consequences in all circumstances. At its core, the applicant's case was that any form of jurisdictional error was sufficient to render the trial a nullity. Authority for that proposition was sought in the description of "jurisdictional error" identified by the joint reasons of Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection, [52] in the following terms: "[24] Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. …"

(c) judicial authority

1. As noted above, an acquittal was set aside in 1897 in Tchorzewski on the ground that a member of the tribunal had been disqualified. The status of that decision following Schofield need not be determined, as this case does not involve an incompetent tribunal.
2. The applicant relied upon two cases in which judgments of acquittal had been set aside by single judges in this Court. The first was Hanna v O'Shane. [56] Mr Hanna had brought 62 criminal charges for various offences against five defendants. Upon his failure to appear when the matters were called in the Local Court, the magistrate dismissed all the charges. Mr Hanna sought orders in the nature of certiorari to quash those decisions on the grounds of breach of procedural fairness. Shaw J accepted that breach was established, but expressed "some concern" that granting the remedy would expose the defendants to the prospect of double jeopardy. [57] The judge referred to Davern v Messel, concluding that Mason and Brennan JJ had held that "double jeopardy extended to prosecution appeals against acquittal or discharge". The judge continued: [58] "This proposition weighs against the grant of relief sought." The decisions were nevertheless quashed and the matters remitted to the Local Court.
3. The somewhat tentative expression of opinion as to the effect of the principle against double jeopardy in the circumstances of an acquittal may not have adequately reflected the position established on the authorities. However, because there had been no hearing on the merits, the case is readily distinguished from the present case and provides no authority in relation to the present circumstance.
4. The second case relied upon by the applicant was the decision of Rothman J in Director of Public Prosecutions v Ozakca. [59] The circumstances of Ozakca were again far removed from those in the present case, but similar to Hanna. Summary criminal proceedings were listed before a magistrate for hearing. The prosecutor sought an adjournment, based on the absence of the principal prosecution witness, which was not opposed. The adjournment was nevertheless refused and, although there was a hearing, it was brief, given the absence of the victim and the charges were dismissed on the basis that there was no prima facie case. [60] The Director sought judicial review on the basis of procedural unfairness in refusing the adjournment.

Conclusions - scope of supervisory jurisdiction

1. The justification for the principle depends upon essentially practical considerations affecting the circumstances of the person charged, namely, continuing or renewed embarrassment, expense and ordeal, and living in a continuing state of anxiety and insecurity. At least in relation to an individual, those factors do not depend upon a legal analysis of whether the defendant was truly "at risk" because of some legal failing in the trial, where a trial has in fact taken place. Particularly is that so where the error is not identified until judgment is delivered and the reasons of the judge are examined, as in the present case. In those circumstances, it should be concluded that judicial review is not available to quash the judgment and orders of the District Court acquitting the defendant of the charge.
2. It may be noted that the defendant is a corporation and not an individual; accordingly, the justification underlying the principle of double jeopardy does not have equal force. However, it was not contended that the principle should have differential application with respect to individuals and corporations. That possibility does not require further consideration.

Orders

1. On the basis that the Court has no power to review an order acquitting the respondent, made after a trial and judgment, the Court should make the following orders: 1. Dismiss the summons filed on 25 June 2020. 2. Order the applicant to pay the first respondent's costs.
2. MACFARLAN JA: I agree with Basten JA.
3. LEEMING JA: I agree with Basten JA, for the reasons he gives, that this Court's supervisory jurisdiction does not extend to the review of an acquittal, following a summary trial by a competent tribunal in the absence of fraud, and for that reason the summons must be dismissed. I also agree that it is unnecessary and inappropriate to go further and assess the case sought to be advanced in this Court by the applicant. But I would add that, in my opinion, there were powerful discretionary reasons telling against the grant of relief to the applicant.
4. A large component of the applicant's complaint in this Court was that the primary judge had failed to address a substantial aspect of its case. Yet the primary judge gave ample opportunity - more than four weeks after reasons were given on 30 April 2020 - for a case to be stated pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). During that time (no orders having been made) it would also have been open to the applicant to apply for a determination of part of the case that had not been determined. Neither of those avenues was availed of. Instead, its summons having eventually been dismissed on 1 June 2020, the applicant sought to invoke this Court's supervisory jurisdiction on 25 June 2020.
5. Where there is, as here, a remedy by way of appeal which is available and effective, that remedy ought be pursued first and the failure to do so will generally provide a reason for the refusal of any relief by way of judicial review: Quach v Health Care Complaints Commission [2015] NSWCA 187 at [21]. That applies a fortiori where there is an appeal and an ability to apply to the District Court. This is a case where the applicant must be taken to have made a deliberate decision not to exercise such rights as it had to apply to the District Court, or to the Court of Criminal Appeal. In those circumstances, there would be, to say the least, a powerful case for withholding relief as a matter of discretion. As was raised during the hearing: "BASTEN JA: You come to this Court, Mr Agius, and you say that the judge, clearly on the reasons created an error which deprived her of the jurisdiction to determine the case at all. You had a month in which to point that out if you had thought it appropriate and it had been obvious to you at the time and no doubt the judge would have, if she accepted the submission, may have taken steps to correct her error. She clearly wanted to conclude her function as a judge in accordance with her jurisdiction. Why should you be allowed in a discretionary sense to come to this Court now and make that sort of point?"

Endnotes

1. Work Safety Act, Sch 2, cl 1(1) and (2).
2. Work Safety Act, s 230(1)(a).
3. Work Safety Act, s 30.
4. Work Safety Act, s 32.
5. Work Safety Act, s 229B(1) and (3).
6. SafeWork NSW v BOC Limited [2020] NSWDC 156.
7. (2016) 93 NSWLR 338; [2016] NSWCCA 37 at [127] (Bathurst CJ, Hidden and Davies JJ).
8. (1998) 194 CLR 610; [1998] HCA 57.
9. Pearce at [30].
10. Pearce at [37].
11. (1957) 355 US 184 at 187-188.
12. [2020] NSWCCA 220.
13. R v Cheng (1999) 48 NSWLR 616 at 619; [1999] NSWCCA 373 at [20]; Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63; Electrolux Home Products Pty Limited v The Australian Workers' Union (2004) 221 CLR 309 at 329; [2004] HCA 40 at [21]; see also Bropho v State of Western Australia (1990) 171 CLR 1 at 17-18; [1990] HCA 24; Coco v the Queen (1994) 179 CLR 427 at 437-438; [1994] HCA 15.
14. Orr at [101].
15. Inserted by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) (Double Jeopardy Act).
16. Appeal and Review Act, s 107(2).
17. Appeal and Review Act, s 107(1)(b).
18. Repealed on 15 December 2006: Double Jeopardy Act, Sch 2.2[1].
19. It was enacted in November 1996 by the WorkCover Legislation Amendment Act 1996 (NSW), reversing CI&D Manufacturing Pty Ltd v Registrar Industrial Court (NSW) (1996) 40 NSWLR 1: Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales (2008) 74 NSWLR 257; [2008] NSWCA 292 at [55]-[56] (Spigelman CJ).
20. Second reading speech, Work Health and Safety Legislation Amendment Bill 2011, Parliamentary Debates, NSW Legislative Council, (Hansard), p 2.
21. (5 & 6 Will. 4, c. 50), s 72.
22. (1890) 25 QBD 357.
23. London Justices at p 360.
24. London Justices at p 361-362.
25. (1978) 38 FLR 397.
26. Davern v Messel (1984) 155 CLR 21; [1984] HCA 34.
27. Davern v Messel at 66.
28. Davern v Messel at 64.
29. (1881) 7 QBD 198.
30. Duncan at 199.
31. Duncan at 200.

Amendments 30 March 2021 - [9] - "which" deleted after "law" in second last sentence. [10] - "of" inserted after "nature" in second sentence. [34] - "has" deleted after "there" and inserted after "never" in second last sentence before quote. Fn 26 - "at 66" deleted after "155 CLR 21". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 March 2021