An important decision from the Court of Criminal Appeal in New South Wales has put in doubt whether the 2-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 made 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 a decision of the District Court that allowed a prosecution to proceed against Prime Marble for the 2020 deaths of two workers who were exposed to unsafe levels of respirable crystalline silica (RCS) between 2017 and 2018.

The prosecution against Prime Marble was commenced in March 2023, less than 2 years after SafeWork NSW became aware of the deaths of the two workers. SafeWork NSW had previously attended the site of Prime Marble in August 2017 and measured the exposure of workers to RCS, establishing that five of the workers were exposed to 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.

Following the commencement of proceedings against Prime Marble in 2023 relating to the deaths of the workers, Prime Marble successfully had the prosecutions dismissed by the Court of Criminal Appeal on the basis that SafeWork NSW become 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 years after the offence first comes to the notice of the regulator”. 

The Court found that an offence first comes to the notice of the regulator when it has information sufficient to give reasonable grounds for a belief that the offence has been committed. Reasonable grounds requires the existence of facts that are sufficient to induce a belief in the existence of those grounds in a reasonable person.

Importantly, the Court found that it is not necessary for the regulator to have notice of the identity of any particular worker put at risk of serious illness because of a breach of the duty. What is required for an offence to come to the notice of the regulator is not the same as notice of an incident or injury. It requires that the regulator be in possession of material or information capable of establishing objectively a reasonable belief that all of the elements of an offence could be established.

In the view of the Court, the regulator had that information following its visits in 2017 and 2018.

The decision, if not appealed further to the High Court, 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 in those matters as well.