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Decisions to prosecute, and whether or not to continue with prosecutions, will be made fairly, consistently and proportionately to the seriousness of the behaviour. Here we describe the prosecution process, from initiation to publication of Court outcomes.
Following an investigation, where an investigator considers that prosecution action is warranted, they will make a recommendation to their manager. If they are satisfied that the applicable enforcement criteria and evidential requirements have been met, the recommendation will be referred to a Chief Inspector who will decide whether or not to endorse it. If endorsed, the investigation file will be legally reviewed to ensure that the Solicitor General’s Prosecution Guidelines and the WorkSafe Prosecution Policy are met. If they are, the delegated decision maker will decide whether or not to initiate prosecution action by filing charges in Court.
The Court process
If a decision is made to prosecute, WorkSafe will then file charges in Court. The Court will set a first appearance date for the case. WorkSafe will arrange for the defendant to be summonsed and advised of the charge, the Court location and appearance date. Under the Criminal Disclosure Act 2008(external link), the prosecutor must provide ‘initial disclosure’ about the allegations (the charging documents, summary of facts and any conviction history) to the defendant at the start of the proceedings. Further disclosure will be provided to the defendant as the process continues.
The defendant will need to appear in Court on the first appearance date. The ongoing Court process and timing is covered by the Criminal Procedure Act 2011(external link) and will depend on the details of the particular case. A second appearance date, which is generally 10 or 15 days after initial disclosure is made, will then be scheduled by the Court. On or before that date, the defendant may enter a plea of guilty or not guilty. The defendant may sometimes ask the Court for an adjournment, for instance, to consider initial and further disclosure from the prosecutor, before entering a plea.
If a not guilty plea is entered, a Case Review Hearing is scheduled. This is usually 30 or 45 days later, depending on the case type. A trial date is then set and the case proceeds to trial. The majority of WorkSafe’s trials are heard in the District Court, before a Judge alone and without a jury.
If a guilty plea is entered, or if the charge against the defendant is proven at a trial, then a date for sentencing is set. If the charge is not proven, or a defendant is found not guilty after trial, they will be discharged.
Sentencing for criminal offences is governed by the Sentencing Act 2002.
A range of sentencing options is available to the Court if a charge is proven. The maximum fine available under the Health and Safety at Work Act 2015(external link) generally is $1,500,000 for a company or $300,000 for an individual PCBU but a fine of up to $3,000,000 for a company or $600,000 for an individual PCBU and/or up to five years imprisonment is possible for those persons convicted of more serious ‘knowledge based’ offending.
In addition to a fine, a Court may order that reparation be paid to a victim of offending. This may be for loss or damage to property, emotional harm, or loss or damage consequential on any emotional or physical harm or loss of/damage to property.
A Court may also make other sentencing orders under the Health and Safety at Work Act. The available orders are:
Order for payment of regulator’s costs in bringing prosecution
Adverse publicity order
Order for restoration
Work health and safety project order
Court-ordered enforceable undertaking
Injunction requiring the offender to cease any action
Appeals against sentence, conviction, or both, are heard in the High Court in the first instance. This is in accordance with the Criminal Procedure Act 2011(external link). Appeals may be brought by the prosecutor or the defendant.
Records of court process and decisions
Information in relation to a Court file may be obtained through the Ministry of Justice. The type of information that is able to be provided will depend on who wants to see it and why.
Publication of prosecution outcomes
Prosecution outcomes are published by WorkSafe in accordance with its publishing policy.
Information about the status of court proceedings
WorkSafe will provide victims of offending (which includes the immediate family of a deceased person) with information about the filing of charges (or reasons for not filing charges) and the status of court proceedings. This is in accordance with WorkSafe’s obligations as a prosecutor under the Victims Rights Act 2002(external link).