Saunders Civilbuild Pty Ltd v SafeWork New South Wales

HEADNOTE [This headnote is not to be read as part of the judgment] On 10 November 2021, Saunders Civilbuild Pty Ltd ("the appellant") was convicted of an offence under s 32 of the Work Health and Safety Act 2011 (NSW) ("the WHS Act"); that is, a failure to comply with a health and safety duty, which exposed individuals to a risk of death or serious injury or illness. Pursuant to s 236(1) of the WHS Act, the primary judge, Scotting DCJ, made an Adverse Publicity Order against the appellant, requiring the publication of an Adverse Publicity Notice that was to comprise the offence, its consequences, the penalty imposed and any other related matter. On 18 October 2023, the Court of Criminal Appeal unanimously dismissed an appeal against conviction. In so doing, the Court found that the primary judge erred in finding that sub-particulars 17(a)(iii) and (iv) ("the Fall Protection Findings") were reasonably practicable measures when regard was had to the circumstances of the incident. Accordingly, in its orders, the Court held that the parties could seek directions in relation to any proposed appeal against sentence. The only issue in the appeal against sentence was whether the Adverse Publicity Order providing for the publication of the Adverse Publicity Notice in its existing form should be quashed and substituted with a new form of order that incorporates the findings in the appeal against conviction. The Court held, allowing the appeal: The Adverse Publicity Notice is to reflect the offence so far as it was proven. As the challenge to the Fall Protection Findings in the appeal against conviction was successful, the Adverse Publicity Order formulated by the primary judge should be quashed. In its place, a form of order that reflects the proven offences should be made.