Citation: SafeWork NSW v JBS Australia Pty Ltd [2023] NSWDC 116
Court: District Court of New South Wales
Date: 26 April 2023
Judge: Russell SC DCJ
Background
SafeWork NSW brought a prosecution against a large meat processing company under the Work Health and Safety Act 2011 (NSW). The charge arose from a February 2020 incident at a feedlot in Caroona, NSW, where a commodities clerk suffered serious injuries after two hay bales, each weighing approximately 670 kg, fell from a stack and struck her while she was conducting moisture testing. SafeWork alleged the company failed to comply with its health and safety duty under s 19(1) of the WHS Act, exposing workers to a risk of death or serious injury contrary to s 32.
The matter was set down for a three-week jury trial commencing 31 July 2023, with the first week to be held at a country courthouse to accommodate witnesses. In the lead-up to trial, SafeWork filed a Notice of Motion seeking an order requiring the defendant to provide advance notice of any objections to the admissibility of prosecution documentary evidence, along with the basis for those objections.
The defendant opposed the motion. It argued, among other things, that it could not reasonably be expected to identify its admissibility objections without first hearing the prosecution's opening of its case. Judge Scotting subsequently directed SafeWork to provide a written opening outline, following which the defendant was to advise its position on the listed documents.
Legal Issues
- Whether the court should exercise its discretion under ss 247I and 247K of the Criminal Procedure Act 1986 (NSW) to order the defendant to give notice of objections to the admissibility of prosecution documentary evidence, and the basis for those objections.
- Whether making such an order would serve the "interests of justice," which for the purposes of Division 2A of the CP Act centres on reducing delay in proceedings.
- Whether general assumptions about the utility of pre-trial disclosure of objections are sufficient to justify such an order, or whether case-specific evidence is required.
Decision
Russell SC DCJ dismissed the motion. The court found that the purpose of Division 2A of the Criminal Procedure Act 1986 is to reduce delays in proceedings, and that any order under ss 247I and 247K must be assessed against that specific objective. The prosecutor had provided no evidence to demonstrate that requiring the defendant to disclose admissibility objections in advance would actually reduce the length of the trial.
The court doubted the general proposition that pre-trial lists of objections inevitably save court time. His Honour observed that many objections raised in advance either fall away by the time the relevant evidence is tendered, or are resolved in more practical ways once the matter reaches the trial itself. A brief written objection, often reduced to one or two words, rarely provides enough guidance to assist a trial judge in ruling on admissibility.
His Honour also accepted the defendant's submission that relying on general assumptions applicable to all criminal trials, rather than circumstances specific to the case at hand, would be an error. Drawing on Pambula District Hospital v Herriman (1988) 14 NSWLR 387, the court held that the discretion to make such an order must be exercised by reference to the particular case, not abstract propositions about litigation efficiency.
Orders Made
- The prosecutor's Notice of Motion filed on 30 November 2022 was dismissed.
- The prosecutor was ordered to pay the defendant's costs of the motion.
Key Takeaways
- The District Court confirmed that the governing purpose of Division 2A of the Criminal Procedure Act 1986 is to reduce delay in proceedings, and any application for preliminary disclosure must be assessed against that specific goal.
- Under ss 247I and 247K of the CP Act, a prosecutor seeking an order compelling a defendant to disclose admissibility objections in advance must provide evidence that doing so would actually reduce the length of those particular proceedings. A bare assumption that disclosure saves time is insufficient.
- It is an error to justify a preliminary disclosure order by reference to matters of general application across criminal trials, rather than circumstances specific to the case before the court, following Pambula District Hospital v Herriman (1988) 14 NSWLR 387.
- The court noted that pre-trial objection lists carry limited practical utility: many objections are abandoned once the relevant witness is called, and a terse written statement of the basis for an objection often does not assist the trial judge as much as an objection developed orally during the hearing.
- Refusing to order advance disclosure of objections does not leave the prosecution without recourse; the existing case management framework and experienced counsel handling objections in the ordinary course of trial remain the expected mechanism for managing admissibility disputes.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986 (NSW), ss 247A, 247B, 247E, 247F, 247G, 247H, 247I, 247K
- Work Health and Safety Act 2011 (NSW), ss 7, 19, 32, 155
Cases
- Environment Protection Authority v Eastern Creek Operations Pty Ltd (No. 2) [2021] NSWLEC 39
- Herron v The Attorney General for NSW (1987) 8 NSWLR 601
- Pambula District Hospital v Herriman (1988) 14 NSWLR 387
- Poletti Corporation Pty Ltd v SafeWork NSW [2020] NSWCCA 243
- Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121