Citation: SafeWork NSW v Rockfield Contracting Pty Ltd [2020] NSWDC 39
Court: District Court of NSW
Date: 9 March 2020
Judge: Scotting DCJ
Background
The defendant company faced a prosecution under the Work Health and Safety Act 2011 (NSW), charged with failing to comply with its health and safety duty as a person conducting a business or undertaking, thereby exposing a worker to a risk of death or serious injury. The charge arose from a fatal incident on 1 April 2016 in Katoomba, where a worker was struck by a drill string that "snaked" out of the ground during horizontal directional drilling operations. The worker sustained fatal injuries. There was no exclusion zone around the exit pit, and the worker was not wearing a helmet at the time.
The matter was listed for a five-day hearing on 16 March 2020. The defendant applied to vacate the hearing dates on two grounds: the unavailability of its expert witness, and the prosecutor's failure to provide adequate particulars of the charge.
Legal Issues
- Whether the hearing dates should be vacated due to the defendant's inability to obtain an expert report in time for the listed hearing
- Whether the prosecutor was required to provide additional particulars of the charge, and whether its existing responses to the defendant's requests were adequate
- What legal principles govern the provision of particulars in Work Health and Safety prosecutions
Decision
Expert witness issue: Scotting DCJ was satisfied that the unavailability of the defendant's expert alone provided sufficient reason to vacate the hearing. The defendant's original expert, who had previously agreed to assist and had signed an acknowledgment of the Expert Code of Conduct, informed the defendant's solicitor in late January 2020 that his employer's policy prevented him from attending court. An alternate expert had been identified but could not prepare a report before the listed hearing date.
Particulars issue: The judge declined to resolve the particulars dispute finally at this stage, noting that the questions raised were of general importance to other cases in the jurisdiction and warranted fuller argument. However, his Honour made several preliminary observations critical of the prosecutor's responses to the defendant's particulars requests.
The court identified three deficiencies in the prosecutor's approach. First, a blanket refusal to engage with a request by labelling it as "not a proper request for particulars" was not an acceptable response where the request legitimately sought identification of evidence supporting a pleaded measure. Second, describing something as "a matter for evidence" was not an adequate response where the request was for identification of the evidence in the prosecution brief to be relied upon. Third, the prosecutor could not keep its options open depending on what evidence was ultimately admitted at trial; the relevance and admissibility of evidence depends on how it connects to the case as pleaded.
The court confirmed that the legal framework requires a prosecutor in a WHS proceeding to identify the measures the defendant was required to take, and that adequate particulars are essential to a fair trial. The degree of particularisation required will vary with the nature and circumstances of the offence.
Orders Made
- The trial date of 16 March 2020 was vacated
- The defendant was directed to identify any requests for particulars it wished to maintain, by 5:00pm on 13 March 2020
- The prosecutor was directed to respond to those requests by 5:00pm on 20 March 2020
- The matter was listed for 30 March 2020 to fix a new trial date and hear any further argument on the particulars issue
- Each party was directed to file written submissions on the particulars issue by 5:00pm on 27 March 2020 if further argument was required
- Costs arising from the vacation of the trial date and the particulars issue were reserved
Key Takeaways
- In WHS prosecutions, a court has a common law power to order the prosecutor to provide particulars necessary in the interests of justice, and a failure to provide adequate particulars can result in the dismissal of the charge.
- A blanket characterisation of a defendant's request as "not a proper request for particulars" does not constitute an adequate response where the request legitimately seeks identification of evidence underpinning a pleaded measure; such requests bind the prosecutor's case and inform what evidence is admissible.
- The District Court confirmed that describing a matter as "a matter for evidence" is not an appropriate prosecutorial response to a particulars request, where the defendant is entitled to know which evidence in the prosecution brief will be relied upon.
- Prosecutors in WHS matters cannot reserve the right to adapt their case to whatever evidence is ultimately admitted; the admissibility of evidence must be demonstrated by reference to how it proves the case as pleaded in the summons.
- Sufficient reason to vacate a hearing can be established by expert unavailability alone, particularly where an expert who had previously committed to assist withdraws at a late stage due to circumstances outside the defendant's control.
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011 (NSW), ss 19(1), 32
Cases
- Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344
- De Romanis v Sibraa [1977] 2 NSWLR 264
- Johnson v Miller (1937) 59 CLR 467
- Kirk v Industrial Court (NSW) (2010) 239 CLR 531
- Marchesi v Barnes [1970] VR 434
- S v The Queen (1989) 168 CLR 266
- Veysey v R (2011) 33 VR 277