An important decision from the Court of Criminal Appeal in New South Wales has put in doubt whether the two-year limitation period for commencing a prosecution in harmonised work health and safety (WHS) jurisdictions starts from the date of an incident, if the regulator was previously aware of the same risk of injury at the site of the person conducting a business or undertaking (PCBU).
In Prime Marble & Granite Pty Ltd v SafeWork NSW (2024), the Court of Criminal Appeal heard an appeal from the District Court's decision which allowed a prosecution to proceed against Prime Marble for the deaths of two workers who were exposed to unsafe levels of respirable crystalline silica (RCS) between 2017 and 2018.
The prosecution against Prime Marble commenced in March 2023, less than two years after SafeWork NSW became aware of the workers' deaths in early 2021. SafeWork NSW had previously visited Prime Marble's site in August 2017 and found that five workers were exposed to RCS levels more than 7.5 times the exposure standard. In April 2018, SafeWork NSW issued an improvement notice identifying a contravention on 16 March 2018 relating to unsafe exposure to RCS.
After the proceedings against Prime Marble commenced in 2023, Prime Marble successfully had the prosecutions dismissed by the Court of Criminal Appeal on the basis that SafeWork NSW became aware of the offence in (at least) 2018 and so were statute barred by reason of section 232(1)(a) of the WHS Act, which provides that a prosecution cannot be commenced more than "2 (two) years after the offence first comes to the notice of the regulator".
The Court found that an offence first comes to the regulator's notice when it has sufficient information to reasonably believe that the offence has been committed. Reasonable grounds require sufficient facts to lead a reasonable person to believe those grounds exist.
Importantly, the Court found that it is not necessary for the regulator to know the identity of any particular worker at risk of serious illness because of a breach of the duty. Rather, for an offence to come to the regulator's notice, the regulator must have material or information capable of establishing objectively a reasonable belief that all elements of the offence could be established.
In the Court's view, the regulator had that information following its visits in 2017 and 2018.
At the time of publication, it is understood that an application for special leave to the High Court may be made by SafeWork NSW. If the decision is upheld by the High Court, it will have a significant impact on any enforcement action currently or proposed to be brought by regulators in harmonised jurisdictions. It will impact those prosecutions where circumstances existed prior to the incident being prosecuted, where inspectors have previously looked at the same risks of injury at the site of the PCBU. For any PCBU now subject to a prosecution, it is likely that these issues will be raised before the courts as well.
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This article was originally published in the Health & Safety Handbook by Tanda here.
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