Citation: WorkCover Authority of NSW (Inspector Simpson) v Haddad [2014] NSWDC 123
Court: District Court of NSW
Date: 4 August 2014
Judge: Curtis J
Background
A fatal workplace accident occurred at a cement factory in October 2011, when a security guard was struck by a cement tank truck while recording vehicle registrations in poor lighting. The prosecution brought separate but related charges under the Occupational Health and Safety Act 2000 against three corporations (the cement company, a principal security contractor, and a security subcontractor) and against the individual defendant as the controlling director of the subcontractor.
In June 2014, the court ordered that the individual defendant's matter be set down for a joint trial with the prosecutions of the three corporate defendants. That order arose following an irregular procedure in which the individual defendant's solicitor communicated arguments to the registrar by email, and the prosecutor's representative at the directions hearing was unfamiliar with the matter and unprepared to resist a joint trial.
The prosecutor then moved by notice of motion to rescind the joint trial order and have the individual defendant's matter tried separately, and before, the corporate defendants' trials. The prosecutor's primary reason was that it wished to call the individual defendant as a witness in the corporate prosecutions, which a joint trial would prevent.
Legal Issues
- Whether the court's earlier interlocutory order directing a joint trial should be rescinded
- Whether the individual defendant could lawfully be called as a prosecution witness in the corporate defendants' trials if those matters were tried jointly
- Whether the interests of justice favoured a joint trial or separate trials of the related matters
Decision
Issue 1: Rescission of the earlier order
Curtis J accepted that an interlocutory order may only be varied or rescinded where there has been a change in circumstances or other good reason, following the principle stated in R v Saunders. The court found no material change in circumstances, but identified good reason to reconsider: the earlier order had been made after an irregular process, with the prosecutor's representative unprepared, and the resulting order was not actually sought by either party. On that basis, the court rescinded the joint trial order so the question of trial structure could be properly argued.
Issue 2: Competency of the individual defendant as a prosecution witness
Section 17(2) of the Evidence Act 1995 provides that a defendant in criminal proceedings is not competent to give evidence for the prosecution in those same proceedings. The prosecutor conceded that if the matters were tried jointly, it could not call the individual defendant to give evidence against the corporate defendants. The prosecutor wanted that evidence to show that the corporations had been put on notice of safety risks before the accident.
Issue 3: Joint or separate trials in the interests of justice
The court applied the general rule, drawn from R v Dellapatrona & Duffield and R v Demirok, that matters arising from the same facts should ordinarily be tried together unless positive injustice would result. The relevant policy considerations included public expense, the risk of inconsistent findings, expedition, and witness convenience, all of which pointed toward a joint trial. Curtis J accepted that the prosecution had, by its own concession, sufficient evidence to prosecute the corporate defendants without the individual defendant's testimony. The court was unpersuaded that the corporate prosecutions would be significantly impeded by his absence as a witness, and found that a separate trial would occasion injustice to the individual defendant, who would be deprived of the ability to cross-examine co-defendant witnesses and faced the risk of inconsistent findings affecting his culpability. The prosecutor's motion was dismissed.
Orders Made
- The prosecutor's notice of motion of 21 July 2014 is dismissed
- Costs to be heard
- Parties to bring in short minutes of order for the further disposition of the matter
Key Takeaways
- The District Court confirmed that an interlocutory order directing a joint trial may be rescinded where good reason exists, even without a material change in circumstances, particularly where the original order was made following irregular procedure and without proper argument from all parties.
- Under section 17(2) of the Evidence Act 1995, a defendant in criminal proceedings is not competent to give evidence for the prosecution in those same proceedings, meaning a prosecutor cannot call a co-defendant to testify against other defendants in a joint trial.
- The general rule in NSW is that prosecutions arising from the same facts should be tried together, with the interests of justice as the governing principle; separation requires demonstration of positive injustice, not merely that a joint trial is inconvenient for the prosecution.
- A prosecution's desire to call one defendant as a witness against co-defendants does not automatically justify separate trials, particularly where the prosecutor concedes that its existing evidence is sufficient to establish the charges independently.
- Procedural irregularities in obtaining court orders, including communicating arguments to a registrar by email and appearing at directions without adequate preparation, can constitute sufficient reason for a court to revisit and rescind earlier interlocutory orders.
Legislation and Cases Referenced
Legislation
- Occupational Health and Safety Act 2000
- Evidence Act 1995
Cases
- R v Saunders NSW CCA 29 March 1994, unreported
- R v Dellapatrona & Duffield (1993) 31 NSWR 123
- R v Glover (1987) 46 SASR 310
- R v Harbach [1973] 6 SASR 427
- R v Demirok [1976] VR 244