CRIMINAL PROCEDURE — Application for permanent stay of Summons — Duplicity — Section 233 of the Work Health and Safety Act 2011 (NSW) — Whether there are one or two pleaded risks — Connection between two potential manifestations of the risk — Application dismissed
Quick Take
1Section 233 of the Work Health and Safety Act 2011 (NSW) permits multiple contraventions of the same health and safety duty to be charged as a single offence where they arise from the same factual circumstances, but does not permit multiple distinct risks to be combined in a single charge; the section operates in respect of the failure element under s 32(b), not the risk element under s 32(c).
2Where a single risk (such as falling from one level to another) is capable of manifesting in different ways (such as falling from or through a formwork deck), those manifestations do not constitute separate risks for the purposes of duplicity analysis; the focus must remain on the underlying risk rather than the specific incidents by which it might materialise.
3The factual circumstances giving rise to multiple potential manifestations of a single risk on the same site, on the same morning, involving the same unsafe construction of a formwork deck, are sufficiently connected to constitute 'the same factual circumstances' for the purposes of s 233 of the WHS Act.
