Citation: Safe Work NSW v Activate Fire PL; Safe Work NSW v Unity (NSW) P/L [2016] NSWDC 440
Court: District Court of New South Wales
Date: 30 November 2016
Judge: Judge AC Scotting
Background
The two defendant companies faced prosecution under section 32 of the Work Health and Safety Act 2011 following a workplace incident on 14 March 2014. An employee of a plumbing subcontractor suffered an electric shock while working in the roof space of an aged care facility at Forster, NSW. One defendant was the head contractor at the site; the other had been engaged to design and install a fire sprinkler system and had in turn subcontracted the installation work.
The central issue at trial was whether it had been reasonably practicable to isolate the power to the administration wing of the facility before commencing work in the roof space. The prosecution bore the onus of proving beyond reasonable doubt that the defendants had failed in their health and safety duties by not taking that step.
On the second day of a five-day trial, and several days after first flagging the addition, the prosecution served a "proof of evidence" from a new witness, the property and asset manager of the facility. The defendants objected to that witness being called, arguing they had been prejudiced by the late service.
Legal Issues
- Whether the court should exercise its discretion under section 188 of the Criminal Procedure Act 1986 to dispense with the requirement to serve the proof of evidence within time, permitting the prosecution to call the new witness
- Whether the defendants had suffered sufficient prejudice from the late disclosure to warrant exclusion of the witness
- What terms and conditions, if any, were just and reasonable in the circumstances
Decision
Judge Scotting applied the framework set out by Adamson J in DPP v Lazzam [2016] NSWSC 145, which identified the relevant factors as including prejudice to the defendants, the reason for non-compliance, the probative value of the evidence, and the public interest in both the determination of proceedings on complete evidence and the avoidance of delay.
The court accepted that the evidence was relevant and probative. The proposed witness would give direct evidence that a request to close the administration area had never been made before the incident, that staff and equipment could have been relocated at no cost, and that the area had a standalone electricity supply. This evidence went squarely to the contested element of reasonable practicability.
The court was not persuaded that the defendants faced significant prejudice. Much of the substance of the proposed evidence had already been foreshadowed in materials within the brief of evidence served months earlier, including a response to a statutory notice from BaptistCare's lawyers and records of interview with other witnesses. The defendants also had their own knowledge of interactions with the witness and of the post-incident works. The court found that several of the subpoenas the defendants' solicitor said he would have issued amounted to fishing expeditions rather than targeted investigations.
Critically, the court observed that the trial was in any event unlikely to conclude within the five days allocated and would need to resume in approximately March 2017. That adjournment provided the defendants with ample time to issue any relevant subpoenas, review material produced, and reconsider their forensic position before the witness was called. The court also noted that costs orders remained available to compensate the defendants for any additional legal costs caused by the late service.
Orders Made
- Time for service of the proof of evidence of Peter Wells extended to 29 November 2016
- Peter Wells not to be called as a witness until the trial resumes at a date to be fixed
- Any question of costs relating to the issue reserved to the end of the trial
Key Takeaways
- Under section 188 of the Criminal Procedure Act 1986, a court has a broad discretion to dispense with evidence service requirements on such terms as appear just and reasonable, and that discretion must be exercised judicially with reference to competing public interests.
- A defendant's entitlement to adequate notice of prosecution evidence does not automatically result in exclusion where late material overlaps substantially with content already served in the brief of evidence.
- The District Court treated the availability of an adjournment as a significant factor in mitigating prejudice: where a trial must in any case be stood over, defendants have an opportunity to investigate late-served evidence before it is led.
- Bare assertions by a defendant's solicitor that subpoenas would have been issued do not necessarily establish material prejudice; the court will assess whether the proposed enquiries are genuinely targeted or amount to fishing expeditions.
- Costs orders against the prosecution remain available at the end of the trial as a mechanism to compensate defendants for additional legal costs flowing from non-compliance with service obligations.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), s 32
- Criminal Procedure Act 1986 (NSW), s 188
Cases
- DPP v Lazzam [2016] NSWSC 145
- DPP v West (2000) 48 NSWLR 647