The applicant in this recent matter, on behalf of Workplace Health and Safety Queensland, sought leave to appeal under s 118(3) of the District Court of Queensland Act 1967 against a decision of the District Court which set aside the conviction of the respondent, for an offence pursuant to s 33 of the Work Health and Safety Act 2011. The offence arose because the respondent failed to ensure that vertical steel reinforcements were in place before a block wall was core filled. The block wall then collapsed on a subcontractor. The specific issue on appeal was whether s 33 of the Work Health and Safety Act 2011 constitutes a “continuing offence”. The Court concluded that it does.
Morrison and Philippides JJA and Applegarth J
27 March 2020
The complaint against the respondent
The respondent was charged on a complaint that alleged that, on 2 December 2014, it “had a health and safety duty” under s 19(2) of the Work Health and Safety Act 2011 (the “WHS Act”), “being a person conducting a business or undertaking who must ensure, so far as is reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking”, and that it had failed to meet that duty contrary to s 33 of the Act. . The charge arose in relation to block laying work carried out by the respondent, specifically an alleged failure to ascertain that the wall had been reinforced before it was core filled. , . It had not. As a result, a subcontractor was injured when the wall collapsed and “pinned” him. .
The decisions below
At first instance in the Magistrates Court, it was held that the respondent was guilty of the offence charged and a $35,000 fine was imposed. . On appeal to the District Court, those determinations were overturned on the basis that the prosecution had failed to prove its case beyond reasonable doubt, since the relevant offending conduct was not proved to have occurred on the date specified in the complaint (namely the date of the wall collapse), but rather some days prior (namely the date upon which the alleged failure to ascertain that the wall had been reinforced before it was core filled), on the basis that “[t]he risk arises at the time that the wall is core filled. The risk may not be known until injury or collapse occurs but that does not means (sic) that the offence does not occur until this event.” . The applicant was ordered to pay costs of both the summary trial and the appeal. .
Citing Sloggett v Adams (1953) 70 WN (NSW) 206 at 208, wherein it was held that continuing offences are deemed to be committed “day by day so long as the state of affairs which is forbidden continues to exist”, the applicant queried the primary judge’s interpretation and application of s 33 of the WHS Act, arguing that she had erred in failing to find that the offence was a continuing offence. Conversely, the respondent, submitted that s 33 it did not give rise to a continuing offence in the circumstances of the present case. .
Whether an offence pursuant to s 33 of the Work Health and Safety Act 2011 should be regarded as being of a continuing nature
Having regard to the language of the section when understood in the context of the stated purpose of the Act, , it was held per curium that, plainly, s 33 gives rise to a continuing offence. In her reasons, Justice Philippides made these observations:
1 None of ss 33, 18 or 19(2) of the WHS Act (the latter two sections prescribing the relevant health and safety duty with which the respondent failed to comply and defining “reasonably practicable” in the context of that duty), gives rise to “any temporal limitation, express or implied, confining the duration of the duty to a particular time”. ;
2 Section 18 states that what is reasonably practicable may involve an assessment of what “was at the particular time” (for example, when the risk from work undertaken is created) reasonably practicable, together with what “is” reasonably practicable to ensure health and safety. ;
3 The preferred interpretation of the respondent, which favoured a generally restrictive interpretation of s 33, failed to consider the general purpose of the WHS Act and the mischief sought to be remedied. ;
4 The substance of the offence in s 33, of failing to comply with the primary duty in s 19(2) indicates that the offence is committed so long as that “state of affairs” continues. .
In addition to the above, Justice Applegarth commented:
1 The conclusion that s 33 may give rise to a continuing offence is supported by the wording of s 19(2), that the duty applies to “work carried out” and not “work that is being carried out”. ;
2 The risk “from work” may be ongoing well after the work is finished; 
3 Without limiting the duty in s 19(2), ss 19(3)(f) and 19(3)(g) prescribe a duty regarding specified outcomes “arising from” work carried out, or the conduct of a business or undertaking. The words “arising from” lend support to the proposition that the duties imposed by s 19 do not expire once the work is completed. , .
Whether the complaint as worded charged a breach on a different day to that proved
By majority (Justice Applegarth dissenting), the court held that since the offence was a continuing offence, it followed that there was no defect in the complaint alleging that the primary duty under s 19(2) was breached on the date as specified in the complaint (when the wall collapsed). Nor was it the case that the elements of the offence, including the breach as alleged, were not proved beyond reasonable doubt. . Justice Morrison clarified that the defective state of the wall “no doubt existed on the day when the block wall was core filled without steel being inserted”, and “still existed” on the date of collapse. As such, the alleged failure was a continued state of affairs. , .
Whilst Justice Applegarth’s view on the matter of the wording of the complaint differed, he held that regardless, the matter was of no material consequence, as nothing in the conduct of the trial had the effect of rendering the date an essential element of the alleged offence. , .
A de Jersey