On 26 November 2020, the New South Wales Supreme Court of Appeal (Court of Appeal) upheld a decision of the District Court of New South Wales (District Court) that acquit a company of a work health and safety offence when it installed gas lines with an error in the connection and labelling of the lines, resulted in the administration of nitrous oxide to two newborn babies.
In July 2015, BOC Limited (BOC) undertook work at Bankstown-Lidcombe Hospital installing oxygen and nitrous oxide piping to operating theatre 8. An incorrect connection and labelling of gas lines resulted in the delivery of nitrous oxide rather than oxygen. This error resulted in one baby suffering severe damage and the other dying. A contractor, Christopher Turner, had been engaged by BOC to undertake the installation.
On 12 July 2018, SafeWork NSW filed a summons in the District Court of NSW alleging that BOC had breached its obligations pursuant to s 19(2) of the Work Health and Safety Act 2011 (NSW) by ensuring, as far as reasonably practicable, that the health and safety of persons was not put at risk from work carried out in the course of its business.
Following a 10-day hearing in the District Court, Strathdee DCJ had delivered reasons but orders were yet to be made. SafeWork NSW was provided an opportunity to request that any question of law in relation to the proceedings be submitted to the Court of Criminal Appeal for determination. SafeWork NSW declined such request and subsequently BOC was acquitted from the charges laid against it.
On 25 June 2020, SafeWork NSW filed a summons invoking the supervisory jurisdiction of the Court of Appeal seeking to quash the final orders of the District Court.
Prosecution of individual contractor
While BOC was acquitted, earlier this year the contractor Mr Turner was convicted of an offence and fined $100,000 in SafeWork NSW v Christopher Turner  NSWDC 180. That decision demonstrates that where personal skills and reasonable care is required and not provided, there is room for prosecution of individuals.
Appeal by SafeWork NSW
The Court of Appeal was required to consider whether it had jurisdiction and power to review an acquittal resulting from the determination of summary criminal proceedings in the District Court and, if so, in what circumstances.
In determining that it did not have jurisdiction and power to review the acquittal, the Court of Appeal made the following (among other) findings:
- the supervisory jurisdiction of the Court does not extend to review of an acquittal following a summary trial by a competent tribunal in circumstances where no fraud has been committed;
- the principle of double jeopardy is relevant to the construction of statutory appeal rights and the limits of the supervisory jurisdiction;
- the rights of appeal are limited to Part 8 of the Crimes (Appeal and Review) Act 2001 (NSW) which makes provision for the ordering for retrials where a person has been acquitted of a life offence (pursuant to s 100) or 15 years or more sentence offence (pursuant to s 101). However, this is relevant only to acquittals by the District Court in criminal proceedings for an indictable offence tried by a judge without a jury and not applicable to the present case; and
- in certain categories of jurisdictional error, there may be circumstances in which the supervisory jurisdiction would extend to an application for judicial review following an acquittal.
The outcome in this case highlights the difficulties that SafeWork NSW will experience if it seeks to appeal an unfavourable decision (namely, culminating in the acquittal of a company charged with a work health and safety offence) when invoking the supervisory jurisdiction of an Appeal Court.
Accordingly, the case serves as an important reminder that the principle of double jeopardy remains an important consideration in any application for a review of an acquittal.
Given the ultimate outcome in this case was that the Court of Appeal found that the company charged had not in fact committed a work health and safety offence, it will be interesting to see whether moving forward, companies will be more inclined to plead not guilty and possibly face an acquittal from charges laid against it.