Western Sydney Local Health District v SafeWork NSW

Court of Criminal Appeal (NSW)|2024-08-14|Before: Leeming JA, Payne JA, Chen J, Hodgkinson AM, Gleeson JA

Nature of the application

There appears to be some confusion in the material supplied to this Court. The document supplied by the District Court and signed by the judge refers to s 5AE of the Criminal Procedure Act 1912 (NSW) but it is plain that s 5AE of the Criminal Appeal Act 1912 (NSW) was invoked. The document is titled "Stated Case from the District Court of New South Wales" but no case has been stated. Instead, the Court annexed the written submissions of the prosecutor and the defendant on the motion filed by the defendant seeking the submission of a question of law. If this were in truth a stated case, then there are difficulties, as Gleeson JA observed in Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176 at [13]-[14] in connection with the corresponding procedure under s 5B in the case of trials on indictment: It is well established that the limitations of the s 5B procedure include that the Court cannot refer to any material not included in the stated case … Nor can the Court draw inferences as to matters of additional fact that are not expressly stated, as distinct from making a necessary implication as to what the judge stating the case must be understood to have said [citations omitted]. Insofar as both parties invited the Court to have regard to evidence in the Local Court and the District Court and to documents not annexed to the stated case, the deficiency in the facts in the stated case cannot be cured in this Court: Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251; (2017) 270 A Crim R 33 at [5]. Whilst an appeal to the High Court was successful, this aspect of the Court's reasoning concerning the stated case procedure was unaffected: Grajewski v Director of Public Prosecutions (NSW) [2019] HCA 8; (2019) 93 ALJR 405.
But, fortunately, this is not a stated case and it is open in dealing with the point of law submitted by the District Court to have regard to material outside the documents annexed by the District Court, and to matters which are common ground.

Background

It is uncontroversial that: 1. summary proceedings were commenced so long ago as July 2021 against the defendant for breach of the duty imposed by s 19 of the Work Health and Safety Act 2011 (NSW); 2. the prosecutor moves on a further amended summons filed on 19 May 2023; 3. the defendant pleaded guilty in April 2024, shortly before a four week hearing was scheduled to commence, but on a limited basis reflecting one aspect of the case particularised in the summons.
The prosecutor's further amended summons alleges in substance that a female nurse was exposed to a risk of serious physical or psychiatric injury or illness from the behaviour of a male patient in a ward of Blacktown Hospital. The summons identified a particular nurse in a particular ward over a particular three day period.
The summons identifies the risk presented by the behaviour of the patient in six separate paragraphs, as comprising "Inappropriate Sexual Behaviours or Harmful Sexual Behaviours", "challenging behaviour", "aggressive behaviour", "wandering and absconding behaviour", "code black behaviour" and/or "work-related violence". The defendant has not identified which of those behaviours are admitted by its guilty plea.
The summons contains in paragraph 11 ten particulars of how the defendant failed to comply with its duty to ensure so far as was reasonably practicable the health and safety of the nurse. Particular 11(b) alleges that the defendant should have had a male nurse attend to the patient's requirements. The other particulars include, in particulars (c), (e), (g) and (h), having additional staff members accompany the nurse, "conducting and documenting a Violence Prevention Program - Specific Threat Risk Assessment for the patient", providing a patient alert system or "file flagging" the patient in a way the nurse could use when working with him, and providing further information and training to the nurse.
The defendant's guilty plea was made on the basis that it admitted particular 11(b) but none of the other particulars. The prosecutor has indicated that it seeks to establish as relevant to sentence particulars (c)(i)-(iii), (e), (g) and (h), but not the remaining particulars.
Section 19, which comprises Division 2 of Part 2 of the Act, imposed an obligation on the defendant to ensure, so far as is reasonably practicable, the health and safety of workers, which by s 30 is defined to mean a "health and safety duty" because it is a duty imposed under Division 2, 3 or 4 of that Part. Section 32 makes it an offence if a person with a health and safety duty fails to comply with that duty, which failure exposes an individual to a risk of death or serious injury or illness.
Central to the question submitted to this Court and to the submissions advanced by the defendant is s 17. Section 17 does not create an offence and is not found in Division 2 of Part 2. It is found in Subdivision 1 which is titled "Principles that apply to duties" and which commences with s 13: "This Subdivision sets out the principles that apply to all duties that persons have under this Act". Section 17 provides: 17 Management of risks A duty imposed on a person to ensure health and safety requires the person - (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
The question posed is a very subtle one. Indeed, all of its subtlety was only exposed in oral submissions.
It is accepted that all that is left to be done in this prosecution following the defendant's guilty plea to the single offence charged is to impose sentence. However, the defendant wishes to advance a moderately elaborate submission which is based on what it says is the effect of s 17.
The defendant says that s 17 is to be read with s 19 and has the effect that a duty is imposed on a person conducting a business or undertaking to ensure that risks to health and safety are eliminated so far as that is reasonably practicable, and if not, then to minimise those risks so far as is reasonably practicable. It wishes to say that because the measure on which its plea is based - using a male nurse to attend to this particular patient - is a measure which would have eliminated the risk, it is irrelevant to the sentencing discretion to have regard to any other particularised steps which could have been taken which merely minimised risks.
In the particular circumstances of this case, the affirmative answer to the question urged by the defendant would have the following consequences. The prosecutor would still be at liberty to adduce evidence in relation to the other particularised measures which it pressed. However, those measures would only be relevant to sentence if the prosecutor proved to the criminal standard that they too were measures which would eliminate (rather than minimise) the identified risks. If the particularised measures would merely minimise the risks, then according to the defendant they would not be relevant to the sentence imposed. That is said to be a consequence of s 17 of the Act, and it is what is meant in the question by s 17 making it "impermissible" for the prosecutor to "pursue particulars" which do not eliminate the risks.
There is a further subtlety. The defendant conceded that although it contended that the measure in paragraph 11(b) would have eliminated the identified risks, it would be open to the prosecutor to contend that it would merely minimise the risks. ("If the prosecutor wants to argue that (b) would not eliminate, the prosecutor, even in the face of an affirmative answer from this Court, will be at liberty to do so, because we haven't asked whether the particular would be eliminated" (T25.35)). The defendant argued it would be a matter for the District Court to determine whether the measure was one which eliminated or merely minimised the risks. This Court was not, of course, asked - nor could it be asked in a question submitted pursuant to s 5AE - to determine whether the measure was one which eliminated as opposed to minimised the risks. Instead, this Court was invited to answer the question on the premise stated in the concluding words of the question: "in circumstances where the Defendant has pleaded guilty to the charge based on an acceptance of a particular alleged by the Prosecution which would have, if implemented, eliminated the pleaded risk".
If the District Court determined that the measure in paragraph 11(b) was one which was determined merely to minimise the risks, then any answer given by this Court would have no utility, as was confirmed during the hearing: LEEMING JA: If, as you accept, the prosecutor wants to argue that particular 11(b) will not eliminate the risk, and the prosecutor does that, and that submission is accepted, do you agree that any answer we give will have no bearing on the sentence process? HODGKINSON: Yes, your Honour, because the prosecutor's then at large, as I've already put.
The prosecutor disagreed that s 17 had the effect for which the prosecutor contended, and said that the elements of the offence were stated in s 19. The prosecutor also maintained that the question did not amount to a pure question of law, and even if it did this Court should not answer it in its discretion.
The parties exchanged submissions about utility. It was said on behalf of the defendant that this Court's answer to the question would assist the primary judge who is yet to impose sentence, and clarify the law, in an area governed by a national scheme. It was also said that this Court's answer would, or at least could, lead to a significant saving of time at the sentence hearing. On the other hand the prosecutor said that the questions of construction would be better resolved when the facts had been found, and it was far from clear that there would be any saving of time.

Is there a question of law?

Section 5AE authorises the submission of a "question of law" arising at or in reference to proceedings in the summary jurisdiction of the District Court to this Court for determination.
In Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 at [12], Beech-Jones CJ at CL, writing for this Court, said: … Cobar Management held that, consistent with the purpose of s 5AE, the form of question that can be submitted under s 5AE must be so called "pure questions of law", that is questions that (at [109]): "... should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."
His Honour proceeded to describe what was meant at [14]: The description in Cobar Management of the form of question that may be posed as "pure question[s] of law" appears to be synonymous with the meaning of "a question of law alone" which is often the subject matter of appeals (see for example Crimes (Appeal and Review) Act 2001, s 52(1)). Such a question is one that must "be stated and considered separately from the facts with which it may be connected in a given case" (Williams v R [1986] HCA 88; (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibbs CJ, Wilson and Dawson JJ) and does not include a ground that involves a mixed question of fact and law such as an error in the application of a legal principle (R v PL [2009] NSWCCA 256 at [25] and [26] per Spigelman CJ; "PL (No 1)"). That said, whether or not a question submitted raises such a question is to be addressed as a matter of form not substance. For example, the questions that were submitted to this Court in NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 at [13] were framed by the first instance judge in terms that commenced "Did I err in law in finding ...". However, they were addressed by this Court at a level of principle and not by reference to the particular facts of the case.
The question submitted by the District Court on the defendant's application is not divorced from the facts of the case. The question involves the application of legal principle to the particular facts sought to be advanced in this prosecution, and the particular limitations accompanying the defendant's guilty plea, namely, whether the defendant's plea disentitles the prosecution from establishing aspects of its particularised case to which the plea does not extend. The device of framing the question in terms of particulars which "would not eliminate the risk", as opposed to particulars (c)(i)-(iii), (e), (g) and (h), does not alter its character as a question of mixed fact and law, which is necessarily confined to the application of principle to the particular case particularised in the further amended summons.
There is a further reason why the question appears not to be a pure question of law. The defendant wishes to say that because compliance with particular 11(b) would have eliminated the risks to health and safety, such additional particulars as are sought to be established by the prosecutor which would only minimise the identified risks are not able to be relied upon. In principle, it is conceivable that Parliament might enact a law with such effect, although it seems unlikely, for reasons to which we shall return. But the premise to that submission is the defendant's assertion that the facts admitted in paragraph 11(b) would eliminate the particularised risks, as indeed is made express in the closing words of the question. That has not been determined, and is far from self-evident. Further, if the question is answered, its application will turn on whether or not other measures are determined to be measures which would eliminate as opposed to minimise the risks. Both aspects confirm that the question is closely linked to factual determinations which have not yet been made, and that in turn suggests either that this is not a pure question of law, or else it is one which does not arise at or in reference to the sentencing proceedings pending in the District Court. Instead, it resembles "a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts", contrary to what was said in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 and Orr v Hunter Quarries referred to above.
It should not be thought that a question of law falling within s 5AE (or s 5B) may be achieved by the device of framing the question with the words "the operation of a section", and concluding that the question is one of construction and therefore within s 5AE, although that submission appears to have found favour with the District Court: see SafeWork NSW v Western Sydney Local Health District [2024] NSWDC 174 at [49]. A criterion so framed will fail to distinguish between a pure question of statutory construction and the operation of a statute upon the facts in a particular case. It will be better to apply the tests stated in decisions such as Orr v Cobar Management Pty Ltd and Orr v Hunter Quarries referred to above.
For those reasons, the question should be answered "This question does not raise a question of law".
True it is that "question of law" is a notoriously imprecise legal concept. For example, in OV & OW v Members of the Board of the Wesley Mission Council (2010) 79 NSWLR 606; [2010] NSWCA 155, Basten JA and Handley AJA said at [28] that: Identifying questions of law in matters involving the application of a statute is sometimes seen to be an esoteric and highly technical matter. Because the boundaries between questions of fact and questions of law are contestable in many situations, attempts to define those boundaries have given rise to confusion.
Lest the foregoing be wrong, we address discretion and the substance of the matter.

Further reasons for not answering the question

If we are wrong about the absence of a pure question of law, there are powerful reasons to decline to answer the question. The first is that it may well prove to be entirely hypothetical. As noted above, the defendant conceded that even if the construction of ss 17 and 19 it advanced was correct, it was open to the prosecutor to seek to establish that particular 11(b) would merely minimise, and fall short of eliminating, the particularised risks. But the premise of the question is that paragraph 11(b) is an elimination measure, not a mitigation measure. If it turns out that using a male nurse to attend to the patient would not have eliminated the particularised risks, then the answer to the question has no bearing whatsoever upon the sentence to be imposed.
Secondly, if sentence is imposed on a basis contrary to the submissions advanced by the defendant, it is entitled to appeal to this Court pursuant to s 5AA of the Criminal Appeal Act 1912 (NSW). This Court would then be able to determine the same questions - as well as any other errors alleged - in a context where the Court has the benefit of factual findings. It is almost always preferable to resolve questions of construction in a context accompanied by facts; cf Doyle v Commissioner of Police [2020] NSWCA 11 at [79] ("It is not desirable for this Court to express views on that point of construction (a) in the abstract, rather than in its application to particular things and (b) in circumstances where the evidentiary basis for the submission was not before the Court").
For those reasons, we would in the exercise of discretion decline to answer the question.
We add that we also consider that very substantial difficulties attend the construction for which the defendant contends.
The notion of sentence being imposed in circumstances where there are contested facts is utterly familiar. A plea of guilty is the formal admission of the legal ingredients of the offence, and where the prosecutor seeks to have the court sentence on a factual basis that goes beyond the facts admitted by the plea, it is necessary for the prosecutor to adduce evidence to establish that basis: see Strbak v The Queen (2020) 267 CLR 494; [2020] HCA 10 at [32]. On occasion, a guilty plea is accompanied by an agreement by the prosecutor to file amended process narrowing the scope of what was charged, but that did not happen in the present case. The charged offending remains the risk and failures particularised in paragraphs 10 and 11, aspects of which go beyond the facts admitted by the defendant's plea.
The general principle is that the sentencing judge must take into account all of the circumstances of the offence, subject to the fundamental principle that no one should be punished for an offence for which they have not been convicted: The Queen v De Simoni (1981) 147 CLR 383 at 389; [1981] HCA 31. In GAS v R; SJK v R (2004) 217 CLR 198; [2002] HCA 22 at [30] it was said: [I]t is for the sentencing judge, alone, to decide the sentence to be imposed. For that purpose, the judge must find the relevant facts. In the case of a plea of guilty, any facts beyond what is necessarily involved as an element of the offence must be proved by evidence, or admitted formally (as in an agreed statement of facts), or informally (as occurred in the present case by a statement of facts from the bar table which was not contradicted).
Determining the facts on which an offender is to be sentenced is a commonplace occurrence. It is governed by familiar principles, including those stated in The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54.
It is difficult to see why the Work Health and Safety Act would undercut these principles. The example given by the prosecutor in oral submissions was illuminating. Suppose a worker is injured by machinery which lacks a protective cage. The installation of a cage would likely eliminate the risk. However, it would also be relevant to sentence to know whether the employer had trained its workforce of the dangers of the machinery, and had installed prominent signs near the machine, and taken other measures which would tend to minimise the risk presented by the dangerous machine. But if the defendant's construction of the legislation were correct, other measures which would only minimise, and fall short of eliminating the risk, would not be relevant.
More generally, it is difficult to see why any of the provisions of the Work Health and Safety Act on which the defendant relies, including the principle in s 17 about how a duty to "ensure health and safety" elsewhere in the Act is to be understood, has any bearing upon the substance or procedure applicable to the exercise of the discretion to impose sentence.
During the course of argument, there were statements from time to time about the Court making determinations of particular matters (for example, whether other particulars were measures which would eliminate the risk as opposed to minimise the risk). How the District Court conducts the balance of the hearing is a matter for that Court. That said, there are many warnings in the authorities about bifurcating or splitting criminal proceedings, and we see no reason to think that it would be desirable for the imposition of sentence to be conducted in a staged process.

Conclusion and orders

It was common ground that costs should follow the event. The powers conferred by s 5AE(2) extend to the power to order costs: see Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (No 2) [2019] NSWCCA 202 at [3], and that is so even if, as here, no question of law is identified in the question submitted (the position resembles cases where a proceeding is dismissed for want of jurisdiction: see Khatri v Price (1999) 95 FCR 287; [1999] FCA 1289 and Wilson v Chan & Naylor Parramatta Pty Ltd (2020) 103 NSWLR 140; [2020] NSWCA 213).
We make the following orders:
The question submitted by the District Court on 17 June 2024 should be answered "This question does not raise a question of law".
Western Sydney Local Health District pay the costs of SafeWork NSW of and occasioned by the application.

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: 15 August 2024

Criminal Procedure Act 1912(NSW)

(2020) 103 NSWLR 140

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