SafeWork NSW v Richard Crookes Constructions Pty Ltd; SafeWork NSW v Transform Formwork Contractors Pty Ltd

Category: Procedural rulings

Parties: SafeWork NSW (Prosecutor)
Richard Crookes Constructions Pty Ltd; Transform Formwork Contractors Pty Ltd (Defendants)

Representation: Counsel:
A Mykkeltvedt (Prosecutor)
C Magee; A Vernier (Defendants)
Solicitors:
Department of Customer Service (Prosecutor)
Seyfarth Shaw Australia; Crawford de Carne (Defendants)

File Number(s): 2024/177647; 2024/177652

Judgment

1. By Notice of Motion, SafeWork NSW seeks the following orders:

2. That the charges brought by SafeWork NSW against Richard Crookes Constructions Pty Ltd (RCC) in the matter of 2024/177647 and against Transform Formwork Contractors Pty Ltd (Transform) in the matter of 2024/177652 be heard and determined together.

3. Both matters be listed for a mention date convenient to the court to set a timetable in preparation for a joint trial.

Background

2. By Summonses filed in the District Court on 14 May 2024, SafeWork NSW alleges that the defendants breached s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) and s 32 of the WHS Act. The same charge is brought by SafeWork NSW against Transform and RCC.

3. On 21 May 2025, I made orders with regard to the filing of material in relation to the question as to whether the prosecutor could tender additional expert evidence. In this application the prosecutor contends that the proceedings between the two defendants should be heard together and relies on an affidavit of Sarah Hedger dated 10 June 2025 (exhibit 1).

4. The defendants oppose the matters being heard together despite the fact that the circumstances with regard to the offending alleged against each defendant happened at the same time and with the same outcome, as the two defendants were working together on the relevant site at the time of the action.

5. The Criminal Procedure Act 1986 (NSW) (CP Act) provides there may be a joint trial if offences arise from the same set of circumstances but there may not be a joint trial if the court is of the opinion that the matters ought be heard and determined separately in the interest of justice. This is ultimately a discretionary decision.

6. Accordingly, in this Motion there are two main issues that I must decide.

7. Do the offences arise from the same set of circumstances?

8. In the interests of justice, should the matters be heard separately?

9. Both defendants do not dispute that I have the power to order that the proceedings be heard together. However, they submit that it would not be a proper exercise of my discretion to order that the matters be heard and determined together.

Relevant Principles

8. Section 29 of the CP Act states:

“29 When more than one offence may be heard at the same time

(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.

9. The principles applicable to the determination of whether there should be joint or separate trials were considered by this court in the matters of Orr v Moolarben Coal Pty Ltd: Orr v Chaplin [2020] NSWDC 739 at [24]-[26]; SafeWork NSW v Miller Logistics Pty Ltd; SafeWork NSW v Mitchell David Doble [2023] NSWDC 252 at [15]-[17], and SafeWork NSW v Boral Cement Ltd; SafeWork NSW v Fenner Dunlop Australia Pty Ltd [2025] NSWDC 154 at [61]-[63]. The principles that can be drawn from the authorities include that:

10. The provisions are designed to promote and facilitate the fair and efficient disposition of criminal justice.

11. They afford the court a broad power to hear and determine related offences.

12. The expression “arise out of” in s 29(1)(b) of the CP Act is of particularly broad ambit.

13. 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.

14. The interests of justice will often pull in different directions, involving consideration of the interests of an accused as well as the interests of the Crown and the community.

15. 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.

16. Whilst I accept that the interests of justice referred to in s 29(3) of the CP Act provides the court with a broad range of considerations, the focus in an application to have two sets of proceedings heard together is not on whether particular charges are related or bear a sufficient relationship to justify their joinder but, rather, on the consequences of joinder for the accused, and the impact which joinder would be likely to have on their ability to obtain a fair trial: Allen v R [2020] NSWCCA 173 at [52] (Bell P (as his Honour then was), Davies and Button JJ agreeing); DS v R [2023] NSWCCA 151 at [79]–[81].

Exercise of Discretion

11. The court’s power to make an order for proceedings to be heard and determined together under s 29(2) of the CP Act is discretionary: s 9 of the Interpretation Act 1987 (NSW). The CP Act does not identify the criteria by which a court is to consider the joinder other than the bare matters in s 29(2) of the CP Act. However, it is apparent that the question as to whether joinder in a particular case should occur is subject to the provisions of s 29(3), which provides that the proceedings 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.

12. I accept that the grant of power to a court should be construed in accordance with ordinary principles and the words used given their full meaning unless there is something to indicate to the contrary. Such powers must be exercised judicially, and in accordance with legal principle: Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205 per Gaudron J. These principles were cited with approval by Brennan CJ, Gaudron and McHugh JJ in PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 313 in relation to a statutory provision that conferred a discretionary power on a court.

13. In Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14 at 23, Gaudron J observed the following:

“… a power vested in a court should not be construed as subject to a limitation not revealed by the ordinary meaning of the words by which that power is conferred. A court must exercise its powers judicially and, in the case of discretionary powers, in accordance with those general principles which govern the exercise of judicial discretion. A general discretionary power which, if exercised one way rather than another, might, in certain circumstances, involve an injustice, should not be approached on the basis that Parliament intended that it not extend to any circumstance in which injustice might, conceivably, occur. Rather, it should be approached on the basis that it was intended that it be exercised for the ends of justice and in accordance with legal principle.

A broad judicial discretion is properly confined by identification of the matters which are extraneous to the power and the exposition of those which are relevant to the power and the way in which they bear on its exercise …”

14. Justice Gaudron’s comments have been cited with approval by the NSW Court of Appeal: Channel Seven Sydney Pty Ltd v Fierraventi-Wells (2011) 81 NSWLR 315 at [46]-[47] (per McColl JA with whom Giles JA and Handley AJ agreed).

15. In the present application, the prosecutor seeks to rely upon wholly general or universal matters related to prosecution proceedings for summary offences under the WHS Act in seeking to have the court exercise its jurisdiction pursuant to s 29(2) of the CP Act to join the hearings of the two sets of proceedings.

16. RCC submits that on the material currently before the court there is inadequate information provided by the prosecutor in relation to a range of matters including, but not limited to, the following:

17. Whether the evidence of all witnesses will be sought to be led as evidence in both trials, and if not, what is the differentiation in respect of each accused.

18. The documents sought to be relied upon by the prosecutor in both trials.

19. Whether the technical/expert evidence will be sought to be led as evidence in both trials, and if not, what is the differentiation in respect of each accused.

20. Whether the documentary evidence will be sought to be led as evidence in both trials, and if not, what is the differentiation in respect of each accused.

21. What is the commonality of the charges and the issues to be determined by the court?

22. What is the length of the trial with all defendants as opposed to separate trials?

Discussion

17. The parties provided me with very detailed written submissions containing references to other cases upon which they rely in support of their arguments. It is clearly apparent to me that the alleged offences arise out of the same set of circumstances for the purposes of s 29(2)(b) of the CP Act. The facts of the proceedings are complicated in that the injured worker, Mr Doronzo, has no recollection of how the incident occurred. He does not recall falling through a void and landing on concrete in the course of his employment on 19 May 2022.

18. It is important to note that the Motion is not about ordering a separate trial, but whether a joint trial should be ordered. I accept that in order to consider whether the offences arise from the same circumstances the court should consider various factors including the following:

19. The facts that resulted in the charge.

20. The terms of the offences described in each Summons.

21. The witnesses required to prove the facts.

22. The risk allegedly involved.

23. The measures alleged by the prosecutor that were not met by the defendants.

24. The prosecutor submits that the failures alleged to give rise to the offence are in some instances identical as between the defendants, and in the remaining instances, closely related. The prosecutor submits that, having regard to the very substantial overlap between the two cases, the same witnesses are likely to be called in both sets of proceedings and the documents to be tendered will align very closely.

25. The prosecutor submits that holding separate trials would be disruptive to the various witnesses and, in some instances, potentially traumatic. I accept that that could be the result of separate trials.

26. The prosecutor further submits that trying the cases separately will double the witness expenses.

27. Finally, the prosecutor submits that there is no indication that any injustice would be visited upon either defendant in the contents of joint trial and that the interests of justice clearly favour an order that the two proceedings be heard and determined together.

28. Transform submits that the main factors in favour of not ordering a joint trial are as follows:

29. A joint hearing will increase the hearing time by at least a week.

30. An additional week of hearing will result in Transform having to incur further costs estimated to be $45,000. It would be unreasonable for any defendant to be put to this additional expense.

31. There is no issue of inconsistent judgments. In the two matters it is open for either of the defendants to be found guilty and the other to be found not guilty.

32. Although evidence will cross over between the two matters there will be evidence that only applies to Transform’s matter and there will be evidence that only applies to the RCC matter.

33. Transform submits that when all of these factors are taken into account it has demonstrated that it will be subject to positive injustice should a joint trial be ordered.

34. RCC submits that for the court to make an order pursuant to s 29(2) of the CP Act, it must first be satisfied that one or more of the circumstances set out in (a), (b) or (c) of that subsection can be established. The court must then have regard to the provisions of s 29(3), and in particular the court must consider whether the matters ought be heard and determined separately in the interests of justice.

35. A significant consideration is the questions of costs. As submitted by the defendants, I accept that there will be evidence adduced with regard to one defendant which is not applicable to the other defendant. Clearly the length of the trial will be extended if the matters are heard jointly. This will necessarily increase the costs for all parties. I also note that if the matters are heard separately, the cost burden on the Regulator will increase, as it will effectively have to run two trials.

36. I also accept that there will be some overlap in the witnesses, and some may have to give evidence in two separate trials if the matters are not heard jointly. That is not ideal for obvious reasons, and if it could be avoided, that would be the better option.

37. Based on the authorities to which I have been referred and noting the differences between the position of the prosecutor and the defendants, I accept that the interests of justice extend beyond the interests of an accused defendant, the interests of the Regulator, the witnesses and the public must be considered, and I have done so.

38. In weighing up the competing arguments, and in the exercise of my discretion, the most appropriate course is not to order a joint trial. Whilst not ordering a joint trial, I acknowledge that the costs for the prosecutor will necessarily increase, but that is to be offset in my mind to the costs increase that would necessarily occur to the defendants if a joint trial was to occur.

39. Similarly, I acknowledge that some witnesses may have to give evidence twice, which may be inconvenient and distressing in some ways, but again in my view that is overweighed by the interests of justice.

40. Whilst it can be said that the offences arise out of the same set of circumstances, the offences are not based simply on the event or the risk, but also upon the acts or omissions of each defendant.

41. Clearly there will be evidence called that addresses the breaches of duty of Transform that will not affect RCC, and vice-versa, or have peripheral relevance to the charges against each defendant. I accept that if there is a joint trial, a not-insignificant amount of time may be expended relevant to Transform and not RCC. If that was to occur, then each defendant would be facing a significantly longer trial, or at least longer than if they were tried separately.

42. I accept that there is still a degree of overlap between witnesses, and that may inconvenience witnesses who may be required to give evidence twice.

43. Nonetheless, I find that the matters ought be heard separately in the interests of justice because of the different cases to be made against each defendant.

ORDERS

1. The prosecutor’s Notice of Motion is dismissed.
2. Matters to be listed on a date to be fixed to set separate trial dates.
3. I order the prosecutor pay each defendant’s costs of this application.