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District Court 25 June 2018

SafeWork NSW v Investa Asset Management Pty Ltd

[2018] NSWDC 173

Other
CRIMINAL LAW WORK HEALTH AND SAFETY EVIDENCE RIGHT TO A FAIR TRIAL PROSECUTOR'S DUTY OF DISCLOSURE PROVISION OF WITNESS STATEMENTS

Citation: SafeWork NSW v Investa Asset Management Pty Ltd [2018] NSWDC 173
Court: District Court of New South Wales
Date: 25 June 2018
Judge: Scotting DCJ

Background

The defendant was the property management agent for a commercial building in Sydney's CBD. Its responsibilities under a property management agreement included managing contractors engaged at the premises, including a contractor that provided and maintained a building maintenance unit (BMU), a suspended work platform used for exterior facade access.

On 20 October 2015, two window cleaners were seriously injured when the BMU fell approximately 30 metres. Expert examination identified fracturing in two load-bearing bolts as the cause. The prosecution case was that relevant Australian Standards required a 10-yearly strip-down inspection of the BMU by a competent person, that this had not been done, and that the defendant had failed to require it despite being notified the inspection was due.

SafeWork NSW charged the defendant with a Category 2 offence under the Work Health and Safety Act 2011, alleging it failed to comply with its health and safety duty and thereby exposed two workers to a risk of death or serious injury. The defendant pleaded not guilty, and a three-week hearing was listed for 6 August 2018. The defendant applied to adjourn that hearing on two grounds.

  • Whether the defendant's failure to retain an expert witness until shortly before the hearing justified an adjournment on the ground of the expert's unavailability.
  • Whether the prosecution brief of evidence was adequate, and specifically whether the prosecutor was obliged to serve signed witness statements from all persons it intended to call at the hearing.
  • Whether records of interview and responses to notices under section 155 of the Work Health and Safety Act 2011 could satisfy the obligation to provide witness statements.
  • What minimum procedural requirements apply to the service of evidence in summary WHS prosecutions in the District Court.

Decision

Expert unavailability

Scotting DCJ accepted that, although there had been some delay on the defendant's part in retaining an expert, that delay had been satisfactorily explained. Counsel had initially advised against retaining one, and the decision to engage an expert was made following fresh advice from senior counsel in May 2018. The retained expert was unavailable from 18 July to 30 September 2018, and no suitably qualified alternative was available. The Court also noted that proceeding without the expert physically present during technical witness evidence would prejudice the defendant's ability to properly prepare and conduct its case.

Adequacy of the prosecution brief

Of the 32 witnesses the prosecution intended to call, 16 had not provided any witness statement, record of interview, or section 155 response. A further five had only provided section 155 responses in their capacity as officers of a body corporate, not in their individual capacity. The prosecutor refused to serve statements for those 21 witnesses, asserting no obligation to do so and anticipating their evidence would be consistent with documents already served.

Scotting DCJ held that this position was incorrect. The Court found that, in the summary jurisdiction of the District Court, the prosecutor is obliged to serve written statements from each person it intends to call as a witness. The obligation derives from the principles governing a defendant's right to a fair trial and the prosecutor's duty of disclosure. The brief as served was therefore inadequate.

Records of interview and section 155 responses

The Court acknowledged that records of interview and section 155 responses could, in some circumstances, stand in place of a separately drafted witness statement, but only where certain conditions were met. Where the witness confirms agreement with the content of the interview or responses, where the material is in a form that complies with the formal requirements for witness statements, and where the content is not repetitive, confusing or incomplete, those documents may suffice. The Court also directed that where a prosecutor intends to rely on such material, it must serve a schedule identifying precisely which questions and answers are relevant to each particular pleaded in the summons.

Orders Made

  • The hearing date of 6 August 2018 was vacated.
  • The prosecutor was directed to serve written statements from all intended witnesses, complying with section 283B(2)-(5) of the Criminal Procedure Act 1986 and clauses 9I and 9K of the Criminal Procedure Regulation 2017, by 5:00pm on 30 July 2018.
  • The prosecutor was directed to serve a schedule identifying each question and answer in any record of interview to be relied upon, and to which pleaded particulars in the summons each is relevant, by 5:00pm on 30 July 2018.
  • The parties were directed to confer on further directions regarding use of records of interview.
  • Liberty was granted to approach the Court's Associate to list the matter for further argument on the use of records of interview.
  • The matter was listed for hearing on 18 February 2019 with a three-week estimate.
  • The matter was listed for directions on 6 August 2018 at 10:00am.
  • Costs were reserved for further hearing.

Key Takeaways

  • In summary WHS prosecutions conducted in the District Court's summary jurisdiction, the prosecutor is obliged to serve written witness statements from every person it intends to call, not merely those who have already provided records of interview or section 155 responses.
  • A prosecutor's belief that unstatement witnesses will give evidence consistent with documents already served does not discharge the disclosure obligation; actual witness statements must be obtained and served.
  • Records of interview and section 155 responses may, in appropriate circumstances, satisfy the requirement for a witness statement, but only where the witness adopts the content, the formal requirements for statements are met, and the material is not repetitive, incomplete, or confusing.
  • Where records of interview are relied upon, the District Court confirmed that a schedule linking specific questions and answers to each pleaded particular in the summons is a minimum procedural requirement.
  • A short but satisfactorily explained delay in retaining a defence expert, compounded by deficiencies in the prosecution brief, can support vacation of a hearing date even where that date was fixed well in advance.

Legislation and Cases Referenced

Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32, 155, 229B
- Criminal Procedure Act 1986 (NSW), ss 183, 247E, 247T, 283B, 283C, 283D
- Criminal Procedure Regulation 2017 (NSW), cll 9I, 9K

Cases
- ASIC v Vines [2002] NSWSC 1223
- Grey v The Queen (2001) 184 ALR 593
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Maddison v Goldrick [1976] 1 NSWLR 651
- Mallard v R (2005) 224 CLR 125
- R v Brown (Winston) [1994] 1 WLR 1599
- R v Ulman-Naruniec (2003) 143 A Crim R 531
- SafeWork NSW v Unity Pty Ltd [2017] NSWDC 66
- SafeWork NSW v Wollongong Glass Pty Ltd [2016] NSWDC 58
- WA v Christie (2005) 30 WAR 514
- Whitehorn v The Queen (1988) 152 CLR 657