SafeWork NSW v BSA Limited

Manifestation of the Risk

1. Paragraph 11 of the Further Amended Summons pleaded that the death of Mr Hooper on 14 December 2018 was a manifestation of the risk. That was disputed by BSA. I held at [368] of the primary judgment that manifestation of the risk was not an element of the offence. However, it was a matter relevant to the objective seriousness of the offence and was thus a matter to be dealt with at a sentencing hearing.
2. On 16 October 2023 I delivered judgment on sentence: SafeWork NSW v BSA Ltd (No. 3) [2023] NSWDC 417 (the sentence judgment). I accepted the submission of the prosecutor that the failure of BSA to comply with its duty under the Work Health and Safety Act 2011 (NSW) (the WHS Act) was a substantial or significant cause of the death of Mr Hooper - at [65].
3. The end result of the prosecution can be summarised as follows: 1. At a point relatively close to the trial, BSA changed its plea from "not guilty" to "guilty" and admitted two of the pleaded particulars of reasonably practicable steps which it should have taken. 2. The prosecutor established four additional particulars of reasonably practicable steps which should have been taken. 3. The prosecutor failed to establish six further pleaded reasonably practicable steps. 4. The prosecutor established that the offence committed by BSA was a substantial or significant cause of the death of Mr Hooper.

Costs Principles

1. Section 257B of the Criminal Procedure Act 1986 (NSW) provides that "a court may, in and by a conviction or order, order an accused person to pay to the registrar of the court, for payment to the prosecutor, such costs as the court specifies…".
2. The operation of s 257B in the context of work health and safety prosecutions was considered by the Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37; (2016) 93 NSWLR 338. The court said at [219] that costs are discretionary and that the trial judge is ordinarily in the best position to make an assessment of the time and importance of different issues where a party has succeeded on some and failed on others.
3. The approach to awarding costs based upon separate issues in civil proceedings also applies in criminal proceedings, with the qualification that regard must be had to the fact that the prosecutor has a public duty to put all material issues before the court: Bulga at [221].
4. When apportioning costs, mathematical precision is not possible, but it is incumbent on the trial judge to identify the considerations which led him or her to apportion in a particular manner: Bulga at [231].
5. The Court of Criminal Appeal identified some of the factors to be taken into account at [233]-[235] as follows: 1. An evaluation by the trial judge of the time particular issues took in terms of evidence and submissions. 2. Whether the prosecutor was successful in establishing a breach of the Act. 3. Whether the prosecutor failed in demonstrating that some of the proposed methods were reasonably practicable. 4. Whether the sentence hearing resulted in the submissions of the prosecutor or the defendant being favoured.

Negotiations Concerning the Plea

1. The defendant filed written submissions on costs dated 30 October 2023. The defendant annexed to those submissions seven items of correspondence between the lawyers for the parties concerning negotiations for a plea and the basis for a potential plea. The correspondence was not only between the solicitors, but included emails sent between senior counsel.
2. The defendant submitted that the court should discern from that correspondence that the negotiations evidenced unreasonable and disentitling conduct on the part of the prosecutor. The prosecutor in its written submissions dated 13 November 2023 opposed the court considering that correspondence, and in the alternative submitted that the negotiations did not amount to disentitling conduct.
3. I simply decline to consider this correspondence, although I have read it. In my view the court should not be drawn into consideration of negotiations between the parties. Those discussions should be conducted on a completely frank and confidential basis, and the idea that such correspondence will eventually be read by the court would in my view inhibit the conduct of appropriate negotiations. Indeed, there is something distasteful in communications between counsel to achieve an outcome being put into evidence. If the emails between senior counsel can be considered, then where does it stop? Parties could call evidence about verbal discussions between counsel (which in my view should always be regarded as entirely off the record) and even sotto voce remarks at the Bar table could be put before the court to be considered.
4. If this sort of material is to be considered on costs applications, then this court will become involved in many cases in conducting a "trial within a trial", or perhaps more accurately a "trial after a trial". To do so would greatly increase the work of the court, and lead to more public expenditure of money, to deal with issues which, quite frankly, should never be revealed to a court.

Limitation on Amount of Costs

1. The defendant submitted that the prosecutor should only be entitled to 50% of its costs, but that such costs should be capped at a maximum sum of $200,000. I accept the submission made for the prosecutor that this figure was chosen "out of the air". I have no idea whether it bears any relationship with the ultimate quantum of costs which, if not agreed, would fall to be determined by a costs assessor: s 257G of the Criminal Procedure Act.

Apportionment of Costs

1. I have come to the view that costs should be apportioned and that the prosecutor should not obtain an order for all of its costs. I make the following findings: 1. The prosecutor had a public duty to bring these proceedings and was justified in doing so, inter alia, by the plea of guilty entered by BSA, and by the additional findings of guilt made by this court. 2. There was considerable work done by the prosecutor, and considerable costs incurred, in formulating the charge, drafting the pleadings, collating the evidence and preparation generally. It is to be noted that until a short time before the trial was due to start, the plea was "not guilty". 3. BSA pleaded guilty to two particulars of failure to take reasonable steps. These involved the failure to provide locks or tags. BSA could hardly have argued otherwise, given that its own procedures required locks or tags, but such equipment was never provided to technicians. 4. The defendant accepted that one of the pleaded risks did exist, but disputed the second risk. The defendant was successful on this issue. 5. The prosecutor established four additional particulars of reasonably practicable steps which BSA failed to take. 6. The prosecutor failed to establish six other pleaded reasonably practicable steps which it alleged BSA should have taken. 7. At the sentence hearing, the prosecutor succeeded on the disputed issue of whether the offence committed by BSA was a significant or substantial cause of Mr Hooper's death.
2. I do not propose to exhaustively analyse the evidence given at the trial, or the findings in the primary judgment. I will take a "broad brush" approach and reduce the costs to be awarded to the prosecutor by an appropriate percentage.
3. On the question of the risk which the prosecutor failed to establish, the evidence was largely that of the experts. There were thus expert reports to be obtained and considered, and cross-examination of those experts.
4. On the question of the reasonably practicable steps to be taken, there was a considerable degree of overlap between the pleaded measures, and the acceptance of some and rejection of others largely depended upon the view which the court took, not of the evidence, but of the legal effect to be attributed to those steps. None of the reasonably practicable steps upon which the prosecutor failed were hopeless or unarguable. Indeed, the detailed analysis in the primary judgment in relation to each step demonstrates that the prosecutor was justified in bringing the prosecution based upon those pleaded matters, but the defendant successfully argued that they had not been established beyond a reasonable doubt.
5. Taking the above matters into account, I find that the appropriate order is that BSA should pay 85% of the costs of the prosecutor.

Orders

1. The orders of the Court are: 1. Order that BSA Limited pay 85% of the prosecutor's costs. 2. The exhibits are returned.

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: 06 December 2023