Citation: SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 835
Court: District Court of New South Wales
Date: 3 December 2020
Judge(s): Scotting DCJ
Background
HD Projects Pty Ltd, a company contracted to install AFS Logicwall panels at a Kellyville building site, faced prosecution by SafeWork NSW for allegedly failing to comply with a health and safety duty under the Work Health and Safety Act 2011. The charge alleged that this failure exposed two workers to a risk of death or serious injury. On 15 December 2017, a pack of panels being lifted by mobile crane fell after the bottom panel broke through its shrink wrap packaging, injuring two workers who were standing below.
The panels had been attached to the crane by a labour hire employee who was not a qualified dogman. He inserted the lifting device into the second panel from the bottom rather than the bottom panel, and the pack separated during the lift.
The defendant pleaded not guilty and the matter proceeded through the District Court Criminal Practice Note 16 case readiness process, during which the defendant made concessions including consenting to the tender of identified questions and answers from earlier investigative material. On the first day of trial, the prosecutor sought to lead new evidence from three witnesses that had not been disclosed through that process.
Legal Issues
- Whether the court should make an advance ruling under section 192A of the Evidence Act 1995 excluding new evidence the prosecutor sought to lead at trial
- Whether the prosecutor's late disclosure of new evidence from three witnesses breached the requirements of District Court Criminal Practice Note 16
- Whether admitting the new evidence would expose the defendant to an unfair trial
- Whether the Practice Note permitted a prosecutor to lead new or additional oral evidence beyond what was disclosed in a Record of Interview or section 155 response relied upon as a witness statement
Decision
Issue 1: The new statement from Marc Dessens
The prosecutor served a statement from Mr Dessens, signed on 30 November 2020, which contained new material not present in his earlier Record of Interview. That new material included the procedure he adopted in attaching the load and his identification of Mr Hamburger as the person who instructed him on the day, matters he had been unable to recall during the original interview conducted in April 2018 (at [23]). The court found that the disjointed and contradictory nature of the original Record of Interview was obvious and known to the prosecutor from the time the transcript was received. No explanation was offered as to why a conference with Mr Dessens could not have been conducted before the case readiness hearing (at [39]).
Issue 2: The affidavit of Barry Ramm
The prosecutor sought to tender an affidavit sworn by Mr Ramm on 13 November 2020, which had been relied upon in separate sentence proceedings against Mr Ramm and his company. The affidavit included an assertion that Mr Hamburger had provided Mr Dessens with the method to sling the load (at [24]). The court noted that the prosecutor had opportunities to interview Mr Ramm during the investigation or after proceedings commenced, but no explanation was provided for why this was not done. The affidavit's existence in related proceedings made it disclosable, but that did not make it admissible in the defendant's trial (at [40]).
Issue 3: The proposed evidence from Adam Hamburger
The prosecutor sought to call Mr Hamburger, whose input had contributed to the defendant's earlier section 155 response, to put to him inconsistencies between that response and Mr Dessens' evidence. The prosecutor did not yet know what Mr Hamburger would say (at [27]-[28]). The court found that the inconsistencies in the evidence had been apparent since at least 4 May 2018, and that no explanation was given for the failure to interview Mr Hamburger during the investigation or after proceedings were commenced (at [41]).
Issue 4: The Practice Note obligations and fairness
The court rejected the prosecutor's submission that the Practice Note did not require disclosure of new material when a Record of Interview or section 155 response was relied upon as a witness statement, and that additional oral evidence could be led when the witness was called. The court found this position was contrary to the express terms of clauses 8 and 9 of the Practice Note, inconsistent with the defendant's right to fair disclosure, and contrary to principles previously articulated by the same judge in SafeWork NSW v Investa Asset Management Pty Ltd (at [44]). Admitting the new evidence would deny the defendant the opportunity to investigate it and to pursue a defence based on properly disclosed material, creating a significant risk of an unfair trial (at [42]).
Orders Made
- The new evidence proposed to be led by the prosecutor from Marc Dessens, Barry Ramm and Adam Hamburger is excluded.
- Costs of the application are reserved.
Key Takeaways
- The District Court confirmed that a prosecutor's obligations under District Court Criminal Practice Note 16 require new or additional evidence to be disclosed before the case readiness hearing, not introduced for the first time on the first day of trial (at [46]).
- Late disclosure of new evidence creates a significant risk of an unfair trial where the defendant is denied a proper opportunity to investigate the evidence and formulate a defence in response to it (at [42]).
- A prosecutor cannot rely on a Record of Interview or section 155 response as a witness statement while simultaneously leading new and additional oral evidence from that witness beyond what was disclosed, as this is inconsistent with the express terms of clauses 8 and 9 of the Practice Note (at [44]).
- The existence of an affidavit in related proceedings makes it disclosable, but does not of itself render it admissible in separate proceedings against a different defendant (at [40]).
- Under District Court Criminal Practice Note 16, the prosecutor must formulate a settled case theory and speak to intended witnesses before the case readiness hearing. Where in-house lawyers cannot accomplish this, counsel should be briefed earlier, and any additional costs may be recoverable from the defendant if the prosecution succeeds (at [46]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Regulation 2017
- District Court Criminal Practice Note 16
- Evidence Act 1995
- Work Health and Safety Act 2011
Cases
- S v The Queen (1989) 168 CLR 266
- SafeWork NSW v Investa Asset Management Pty Ltd [2018] NSWDC 173
- Veysey v R (2011) 33 VR 277