SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble

Joint or Separate Trials

1. Section 29 of the CP Act deals with when more than one offence may be heard at the same time. Section 29 provides as follows: "(1) A court may hear and determine together proceedings related to 2 or more offences alleged to have been committed by the same accused person in any of the following circumstances - (a) the accused person and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (2) A court may hear and determine together proceedings related to offences alleged to have been committed by 2 or more accused persons in any of the following circumstances - (a) the accused persons and the prosecutor consent, (b) the offences arise out of the same set of circumstances, (c) the offences form or are part of a series of offences of the same or a similar character. (3) Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice."
2. In Roach v R [2019] NSWCCA 160 the court said: "80 Section 29(1) is an important provision designed to promote and facilitate the fair and efficient disposition of criminal justice. It affords the court a broad power to hear and determine related offences. In this regard, as Mr Glissan QC accepted, the expression "arise out of" in subsection (b) is of particularly broad ambit. It is an expression which is used in other contexts to promote the efficient resolution of related disputes: Francis Travel Marketing Pty Ltd v Virgin Atlantic Airways Ltd (1996) 39 NSWLR 160 at 165. 81 Section 29(3) Criminal Procedure Act is also important: 'Proceedings related to 2 or more offences or 2 or more accused persons may not be heard together if the court is of the opinion that the matters ought to be heard and determined separately in the interests of justice.' 82 In the context of s 29(3), this Court has observed that the interests of justice extend beyond the interests of an accused person, with the interests of the Crown, witnesses and the public to be considered as well: Osman v R [2006] NSWCCA 196 at [22]. In a different context, the High Court of Australia has observed that the interests of justice will often pull in different directions, involving consideration of the interests of an appellant (an accused person) as well as the interests of the Crown and the community: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at 614; [32]."
3. In Symss v The Queen [2003] NSWCCA 77, the Court of Criminal Appeal said at [68]-[76] that usually those charged with essentially the same offences will be tried together. The court said that relevant considerations include conserving costs, avoidance of inconvenience to witnesses and the desirability of common enterprises being jointly tried so as to avoid inconsistent verdicts.

The Offences Charged

1. Miller is charged with a breach of s 19(1) of the WHS Act which provides as follows: "19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of - (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking."
2. Mr Doble is charged with a breach of s 27 of the WHS Act which provides as follows: "27 Duty of officers (1) If a person conducting a business or undertaking has a duty or obligation under this Act, an officer of the person conducting the business or undertaking must exercise due diligence to ensure that the person conducting the business or undertaking complies with that duty or obligation. (2) Subject to subsection (3), the maximum penalty applicable under Division 5 of this Part for an offence relating to the duty of an officer under this section is the maximum penalty fixed for an officer of a person conducting a business or undertaking for that offence. (3) Despite anything to the contrary in section 33, if the duty or obligation of a person conducting a business or undertaking was imposed under a provision other than a provision of Division 2 or 3 of this Part or this Division, the maximum penalty under section 33 for an offence by an officer under section 33 in relation to the duty or obligation is the maximum penalty fixed under the provision creating the duty or obligation for an individual who fails to comply with the duty or obligation. (4) An officer of a person conducting a business or undertaking may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the person conducting the business or undertaking has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (5) In this section, due diligence includes taking reasonable steps - (a) to acquire and keep up-to-date knowledge of work health and safety matters, and (b) to gain an understanding of the nature of the operations of the business or undertaking of the person conducting the business or undertaking and generally of the hazards and risks associated with those operations, and (c) to ensure that the person conducting the business or undertaking has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from work carried out as part of the conduct of the business or undertaking, and (d) to ensure that the person conducting the business or undertaking has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and (e) to ensure that the person conducting the business or undertaking has, and implements, processes for complying with any duty or obligation of the person conducting the business or undertaking under this Act, and Example - For the purposes of paragraph (e), the duties or obligations under this Act of a person conducting a business or undertaking may include - • reporting notifiable incidents, • consulting with workers, • ensuring compliance with notices issued under this Act, • ensuring the provision of training and instruction to workers about work health and safety, • ensuring that health and safety representatives receive their entitlements to training. (f) to verify the provision and use of the resources and processes referred to in paragraphs (c)-(e)."
3. It can be seen that essential elements in s 27(1) require proof that a person conducting a business or undertaking had a duty under the WHS Act and breached that duty. If there is no duty or no breach of duty proved by the prosecution, then logically there can be no failure to exercise due diligence.
4. In this sense the existence of a duty cast upon a person conducting a business or undertaking by the WHS Act, and the breach of that duty, are matters common to both of the present proceedings. As to both matters, the prosecutor bears the onus of proof to the criminal standard.

Submissions for Mr Doble

1. Counsel for Mr Doble served written submissions (MFI 1) and expanded upon those in oral submissions. In summary the submissions were: 1. As Miller is in liquidation, there is no contradictor in the Miller proceedings. 2. Mr Doble could not "give any evidence in the Miller proceedings so as to rebut any allegations made against him". 3. Mr Doble does not know what evidence the prosecutor intends to rely upon to make good its case against Miller. 4. The matters to be proved in each matter are "significantly different". 5. Mr Doble may have to sit through evidence in the Miller proceedings which has no relevance to his own proceedings, thus wasting legal costs.

Submissions for SafeWork

1. Counsel for SafeWork filed written submissions (MFI 2) and spoke to them. In summary the submissions in response to Mr Doble's submissions were (adopting the same numbering as the immediately preceding paragraph): 1. While the hearing of the Miller proceedings will be conducted ex parte, Mr Doble will have a full opportunity to object to any evidence against Miller and to cross-examine all witnesses. The evidence against Miller is also essential evidence against Mr Doble. 2. It is hard to see why Mr Doble could not give evidence, or call or tender evidence, relevant to the evidence tendered to show that Miller breached its duty under the WHS Act. The forensic decision to go into evidence would face Mr Doble even if the proceedings against him were heard separately and before the proceedings against Miller. 3. SafeWork will rely on the same tender bundle in both cases (MFI 2, par 11) and will call the same witnesses (listed in a Proposed Witness List annexed to MFI 2). 4. The case against Miller will require proof of exactly the same facts as the case against Mr Doble ie that Miller had a duty under the WHS Act and breached that duty. In addition, SafeWork will need to prove against Mr Doble that he failed to exercise due diligence. 5. Mr Doble will not have to sit through evidence in the case against Miller which has no relevance to his own case.
2. In addition, counsel for SafeWork submitted that witnesses will need to travel from Tamworth to Sydney to give evidence, which of necessity is disruptive and inconvenient to those witnesses. They should not have their lives disrupted twice (MFI 2, pars 14-15). Further, to have two separate trials, which involve the tender of the same documents and the calling of the same witnesses, is a waste of costs on the part of the court and the prosecutor. As the above authorities show, these are relevant considerations to the "interests of justice" test in s 29(3) of the CP Act.

Consideration

1. I accept all of these submissions made by counsel for SafeWork.
2. As previously recited, SafeWork must prove that Miller had a duty under the WHS Act, and breached that duty, in both the Miller prosecution and the Doble prosecution. The documentary evidence and the witnesses on these issues are identical in both proceedings. Mr Doble will not be sitting around, at great cost, listening to evidence in the Miller case which is irrelevant to his case. These proceedings are very different to the decision to order separate trials in a case cited by counsel for Mr Doble - Orr v Moolarben Coal Pty Ltd; Orr v Chaplin [2020] NSWDC 739 at [41]-[54].
3. Mr Doble will have a full opportunity to challenge the evidence against Miller, and that will be so whether the trials proceed simultaneously or separately.
4. It would be wasteful of public monies to hold separate trials, when in my view a joint trial can be held without any prejudice to the rights of Mr Doble to a fair trial.
5. The risk pleaded in par 13 of the Miller Summons is in identical terms to the risk pleaded in par 14 of the Doble Summons. Both Summonses plead the incident involving injury to Mr Herden which occurred on 4 November 2020. The breach of duty pursuant to the WHS Act alleged against Miller is pleaded in par 14 of the Miller Summons. The Doble Summons pleads precisely the same breach of duty by Miller in par 15 of the Doble Summons. While the Doble Summons goes on in par 16 to plead the ways in which Mr Doble failed to exercise due diligence, there can be no doubt that the alleged offences "arise out of the same set of circumstances" - s 29(2)(b) of the CP Act.

Conclusion and Orders

1. I find as follows: 1. The offences alleged against Miller and against Mr Doble arise out of the same circumstances - s 29(2)(b) of the CP Act. 2. I am not satisfied that the matters ought be heard and determined separately in the interests of justice - s 29(3) of the CP Act. 3. The Summons against Miller and the Summons against Mr Doble should be heard together, commencing on 12 February 2024 as previously ordered.
2. The orders of the court are: 1. Dismiss the Notice of Motion filed by the defendant Mitchell David Doble on 19 June 2023. 2. Order the defendant Mitchell David Doble to pay the costs of SafeWork NSW in relation to the Notice of Motion. 3. Confirm that both matters will proceed together as defended hearings commencing on 12 February 2024. 4. Liberty to restore the matters to the Monday WHS List on 3 days notice.

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: 13 July 2023