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District Court 6 February 2023

SafeWork NSW v Astute Earth Works Pty Ltd

[2023] NSWDC 12

Other
EVIDENCE CHARACTER EVIDENCE PROCEEDINGS GENERALLY

Citation: SafeWork NSW v Astute Earth Works Pty Ltd [2023] NSWDC 12
Court: District Court of NSW
Date: 6 February 2023
Judge: Scotting DCJ

Background

SafeWork NSW prosecuted the defendant company under the Work Health and Safety Act 2011 following a serious incident at a Vineyard building site on 21 August 2019. Two workers were lifted in the upturned bucket of an excavator to perform demolition work at height, with no fall protection provided. The bucket detached and both workers fell, sustaining injuries.

A central issue in the proceedings is whether the injured workers were workers in the business or undertaking of the defendant at the time of the incident. One of the injured workers, a Sri Lankan national, holds key evidence on that question. He currently resides in Sri Lanka, approximately seven and a half hours' drive from Colombo, and cannot be compelled to attend.

The prosecutor applied for a direction under section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 to allow that witness to give evidence by audio visual link from Sri Lanka. The defendant opposed the application, and the court determined it as a pre-trial interlocutory matter ahead of a 15-day hearing commencing 13 February 2023.

Legal Issues

  • Whether the court should exercise its discretion under section 5B of the Evidence (Audio and Audio Visual Links) Act 1998 to permit the witness to give evidence by audio visual link from overseas.
  • Whether allowing the witness to give evidence remotely from home would impair the court's ability to assess his credibility, particularly given that his credit would be in issue.
  • Whether the defendant would suffer unfair prejudice if the direction were granted, as compared with the alternative of the witness's prior statements being admitted under section 65 of the Evidence Act 1995.

Decision

Issue 1: Whether the direction should be made

Scotting DCJ was satisfied that the direction should be made, after weighing all relevant considerations (at [24]). The witness had good reasons for being unable to return to Australia: his wife was pregnant and due to give birth during the scheduled hearing dates, and he continued to receive medical treatment in Sri Lanka for injuries from the incident (at [25]). The court also found it would be very difficult for him to obtain a visa, including a criminal justice visa, and that any visa application process could not be resolved before the hearing dates (at [26]). His evidence was described as very important to the prosecution, with no means available to compel his attendance (at [27]).

Issue 2: Credibility and demeanour by audio visual link

The court rejected the defendant's submission that giving evidence from home would fail to convey the gravity of the proceedings or deprive the court of the means to impress upon the witness the need to tell the truth (at [28]). The court confirmed that credibility is primarily determined by assessing evidence against objectively proven facts and other credible evidence, with demeanour playing only a relatively minor part (at [29]). Citing several authorities, the court found there is very little diminution in the ability to assess demeanour when evidence is given by audio visual means (at [29]). The court also found that the Microsoft Teams platform would permit satisfactory simultaneous involvement of a Tamil interpreter (at [31]).

Issue 3: Prejudice to the defendant versus the alternative

The court found it fairer to the defendant to grant the direction so that it could cross-examine the witness, rather than have his prior statements admitted under section 65 of the Evidence Act 1995, which would deprive the defendant of the opportunity to test the evidence directly (at [32]). The proceedings were being heard summarily, which the court found reduced the likelihood of prejudice from the manner in which the evidence was taken (at [33]). While acknowledging some unfairness to the defendant, the court was satisfied this would not result in an unfair trial, and noted a considerable public interest in permitting the prosecutor to call the evidence and in allowing the injured worker to participate in the proceedings (at [36]).

Orders Made

  • Pursuant to section 5B of the Evidence (Audio and Audio Visual Links) Act 1998, the court directed that the witness's evidence be taken by audio visual link from Sri Lanka.

Key Takeaways

  • The District Court confirmed that the section 5B discretion to direct overseas evidence by audio visual link involves balancing the importance of the evidence, the reasons for the witness's unavailability, the quality of available technology, and the degree of any resulting unfairness to the opposing party (at [24]-[36]).

  • Witness credibility is primarily assessed by reference to objectively proven facts and other credible evidence; demeanour carries only a relatively minor weight, and authorities establish there is very little diminution in the ability to assess demeanour when evidence is given by audio visual means (at [29]).

  • Where a witness is overseas and cannot be compelled to attend, the alternative of admitting prior statements under section 65 of the Evidence Act 1995 may itself be less fair to a defendant than allowing evidence by audio visual link, since cross-examination remains available in the latter course (at [32]).

  • The court's experience in conducting audio visual hearings during the COVID-19 pandemic is a relevant consideration when assessing the practical adequacy of remote evidence-taking, and earlier authorities must be read in light of present technological norms (at [35]).

  • Some residual unfairness to a defendant from remote evidence does not automatically render a trial unfair; the seriousness of the alleged offence and the public interest in allowing injured workers to participate in proceedings are factors that weigh in favour of a direction (at [36]).

Legislation and Cases Referenced

Legislation
- Evidence (Audio and Audio Visual Links) Act 1998
- Work Health and Safety Act 2011

Cases
- Anton v Bokan (No 2) [2019] NSWCA 250
- B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95
- Bayer AG v Minister for Health of the Commonwealth of Australia (1988) 96 FLR 50
- Laporte Group Australia Ltd v Vatselias (unreported, 15 November 1991, NSWSC, Young J)
- R v Ngo (2003) 57 NSWLR 53
- R v Wilkie [2005] NSWSC 794
- Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, 11 March 1997, NSWSC, Giles CJ Comm D)