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District Court 25 June 2020

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd

[2020] NSWDC 330

Other
EVIDENCE 19 PANDEMIC DOCUMENTS TO BE SHOWN TO WITNESSES

Citation: SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd [2020] NSWDC 330
Court: District Court of New South Wales
Date: 25 June 2020
Judge: Russell SC DCJ

Background

The defendant company faced a prosecution under the Work Health and Safety Act 2011 (NSW) arising from an incident at Barangaroo. A summary trial was listed to commence on 6 July 2020 with a three-week estimate. The proceedings involved lay witnesses located in Western Australia and Queensland, as well as expert witnesses in Victoria and Western Australia.

The COVID-19 pandemic made travel to Sydney impractical, and in some cases impossible due to state border restrictions. The parties agreed that interstate witnesses should give evidence by audio visual link, but disagreed on the logistical arrangements for doing so.

The court was asked to resolve several practical disputes about how evidence could be taken by audio visual link in a way that preserved the integrity of the trial process.

Legal Issues

  • Whether Western Australia, Queensland, and Victoria qualify as "participating States" under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), permitting evidence to be taken from those states by audio visual link
  • Whether interstate witnesses should give evidence from their home, their workplace, or a law firm's office
  • Whether a lawyer from the defendant's firm (Norton Rose Fulbright) should be present with each witness, or whether an independent lawyer was required
  • How documents should be made available to interstate witnesses during their evidence
  • How expert evidence should be taken when the experts are located in different states
  • What software and procedural arrangements should govern the conduct of the trial

Decision

Issue 1: Participating States

The court confirmed that Western Australia, Queensland, and Victoria each satisfy the definition of "participating State" under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), by reference to corresponding provisions in their respective state legislation (at [3]-[4]). This meant the court had power to direct that evidence be taken from witnesses in all three states by audio visual link.

Issue 2: Location for giving evidence

The court rejected having witnesses give evidence from their home or place of work, finding there are inherent risks in those settings and that the formality associated with a courtroom has value (at [13]). The court directed that evidence be taken from the capital city office of Norton Rose Fulbright, the defendant's solicitors, limiting that firm's role to providing a room and IT support (at [13]). The court noted that any concerns a witness might have about that arrangement could be addressed by the court explaining the process before evidence commenced.

Issue 3: Independent lawyer to supervise

The court held that an independent lawyer, not a solicitor from Norton Rose Fulbright, must be the only other person present in the room when each witness gives evidence (at [14]). The court directed the parties to agree on a suitable independent lawyer, and provided that in default of agreement, the President of the Law Society of the relevant state would be asked to nominate one (at [14]).

Issue 4: Documents for witnesses

Rather than displaying documents on screen via the software, which obscures the witness's face and creates readability problems, the court directed that each party prepare indexed and paginated physical folders of documents to be handed to the witness by the independent lawyer when required (at [15]-[16]). The defendant's folder of cross-examination documents was not to be provided to the witness until counsel requested it (at [17]-[18]).

Issue 5: Expert evidence

The court directed the prosecution and defence experts to meet in a conclave beforehand and produce a joint written report identifying areas of agreement and disagreement (at [20]). The experts were to give evidence concurrently by audio visual link, and the formal directions about location and supervision applicable to lay witnesses did not apply to them (at [21]).

Issue 6: Software and trial logistics

The court directed that Microsoft Teams be used as the software for taking evidence from interstate witnesses, based on its experience that it was the most stable and reliable approved option over the preceding three months (at [22]). The court noted that a hybrid arrangement, with counsel in court and the witness on screen, was not technically possible in the District Court (at [24]). When interstate evidence was being taken, all participants including counsel would connect via Microsoft Teams, while the trial judge would receive evidence on a laptop in the courtroom (at [24]). Normal court etiquette, dress, and behaviour were required when using Microsoft Teams (at [23]). Remote observers could obtain a login from the judge's associate to see and hear evidence taken via the platform (at [26]).

Orders Made

  • Evidence of interstate witnesses to be taken by audio visual link using Microsoft Teams.
  • Evidence of each interstate witness to be taken at the capital city office of Norton Rose Fulbright, which will provide the room and IT support.
  • The only other person in the room with a witness is to be an independent legal practitioner agreed by the parties, or in default of agreement, nominated by the President of the Law Society of the relevant state.
  • Each party to supply the independent lawyer with indexed and paginated folders of documents for the witness; the defendant's folder is only to be provided to the witness upon counsel's request.
  • Expert witnesses to hold a conclave and produce a written report specifying matters agreed and not agreed, and reasons for any disagreement.
  • Expert evidence to be taken concurrently by audio visual link; the location and supervision directions for lay witnesses do not apply to experts.
  • Liberty to apply to re-list the matter to amend or add to these directions.

Key Takeaways

  • The District Court confirmed that Western Australia, Queensland, and Victoria each qualify as "participating States" under the Evidence (Audio and Audio Visual Links) Act 1998 (NSW), enabling NSW courts to direct that evidence be taken from witnesses in those states by audio visual link (at [3]-[4]).

  • Where integrity concerns arise about evidence given outside a courtroom, the formality of a law firm's office with IT support is preferable to a witness's home or workplace, even where that firm acts for a party in the proceedings, provided its role is confined to providing the room and technical assistance (at [13]).

  • An independent lawyer, rather than a lawyer from either party's firm, is the appropriate person to supervise a witness giving evidence by audio visual link from another state (at [14]).

  • Physical, indexed and paginated document folders handed to witnesses by an independent supervisor are more practicable than screen-sharing for multi-page documents in audio visual link proceedings, as screen-sharing obscures the witness's face and reduces document legibility (at [15]-[16]).

  • A fully hybrid arrangement, with counsel physically in court while an interstate witness connects via Microsoft Teams, was not technically feasible in the District Court; all participants were required to connect via the platform simultaneously when interstate evidence was being taken (at [24]).

Legislation and Cases Referenced

Legislation
- Evidence (Audio and Audio Visual Links) Act 199 8 (NSW), s 3, s 7(1)
- Evidence (Miscellaneous Provisions) Act 1958 (VIC), s 42E
- Evidence Act 1977 (QLD), s 39E
- Evidence Act 1986 (WA), s 121
- Work Health and Safety Act 2011 (NSW)

Cases
- Not stated