Citation: SafeWork NSW v Scharfe [2021] NSWDC 216
Court: District Court of New South Wales
Date: 28 May 2021
Judge(s): Scotting DCJ
Background
The defendant, a worker, faced a prosecution by SafeWork NSW under section 32 of the Work Health and Safety Act 2011. The allegation was that he breached his health and safety duty to other workers under section 28(b) of the Act on 2 March 2017, by failing to warn a junior colleague that using a flammable liquid (brake cleaner) near a battery-operated rattle gun risked igniting the liquid. The junior worker was injured when the rattle gun sparked and ignited the brake cleaner he had sprayed onto a gearbox housing.
The trial ran over 24 and 25 May 2021, with closing addresses on 27 May 2021. A central issue was how much the defendant knew about what the junior worker was doing immediately before the incident. The prosecutor tendered a bundle of documents as Exhibit 2, but the index to that bundle described only one incident report (prepared by a co-worker) behind tab 10. In fact, tab 10 also contained a handwritten incident report authored by the defendant himself, dated 6 March 2017, which allegedly contained admissions about his knowledge.
The error came to light only when prosecutor's counsel referred to the defendant's incident report during closing submissions. The defendant objected, the tender was rejected, and the prosecutor then applied for leave to reopen its case to tender that document.
Legal Issues
- Whether the court should exercise its discretion to allow the prosecutor to reopen its case, during closing submissions, to tender the defendant's incident report.
- Whether the circumstances met the threshold of "very special or exceptional circumstances" required to justify reopening.
- Whether allowing the reopening would cause significant unfairness to the defendant.
Decision
The applicable legal framework
The court confirmed that a prosecutor must call all of its evidence in its case in chief and cannot split the case by adducing evidence it could have anticipated earlier (at [16]). The discretion to allow reopening exists but is reserved for very special or exceptional circumstances, and generally should not be exercised where the occasion to call the evidence ought to have been foreseen (at [17]). The court also acknowledged, following Pham v R and Morris v R, that reopening may occur even after closing addresses have commenced, provided it does not result in unfairness (at [18]).
Failure to identify the document and prosecutorial conduct
The prosecutor had held the incident report since 13 June 2017 and included it in the tender bundle, but did not identify it in the index or rely on it as a key piece of evidence during the trial (at [19], [21]). The court found that the prosecutor failed to act fairly by including the report in the bundle without identifying it, even though it also noted the defendant's representatives should have checked the bundle against the index before it was received (at [20]). The prosecutor offered no explanation for its decision not to rely on the report during the trial, and the court observed that the prosecution appeared to lack a clearly defined case theory (at [21]-[22]).
Prejudice to the defendant
The court was satisfied the defendant suffered significant unfairness. Defence counsel had not cross-examined prosecution witnesses on the incident report, and the court accepted that different forensic decisions would likely have been made had the prosecutor made plain it intended to rely on the document, including that the defendant would probably have been called to give evidence (at [15], [25]).
Conclusion
The court was not satisfied that very special or exceptional circumstances existed to justify reopening, and refused the application (at [24], [26]).
Orders Made
- The prosecutor's application to reopen the case to tender the incident report by the defendant dated 6 March 2017 is refused.
Key Takeaways
- The District Court confirmed that the discretion to allow a prosecutor to reopen its case is narrow, requiring very special or exceptional circumstances, and is generally not exercised where the prosecution could have foreseen the need to tender the evidence earlier (at [17]).
- Including a document in a tender bundle without identifying it in the agreed index does not constitute fair notice to the opposing party, and a prosecutor who takes that course may be denied the opportunity to rely on the document later (at [20]).
- A prosecutor's unexplained decision not to rely on a document it has held for years, combined with a lack of any defined case theory, weighs heavily against allowing reopening (at [21]-[22]).
- Prejudice to the defendant is a critical consideration: where the omission affected forensic decisions during cross-examination and whether the defendant would testify, that prejudice can be sufficient to refuse leave even if the court is the tribunal of fact (at [15], [25]).
- While reopening after closing addresses have commenced is not automatically impermissible (see Pham v R and Morris v R), the absence of exceptional circumstances and the presence of real unfairness will defeat such an application (at [18], [24]).
Legislation and Cases Referenced
Legislation
- Work Health and Safety Act 2011
Cases
- Morris v R [2010] NSWCCA 152
- Pham v R (2008) 187 A Crim R 21
- Shaw v R (1952) 85 CLR 365
- The Queen v Chin (1985) 157 CLR 671
- Wasow v R (1985) 18 A Crim R 348