Citation: SafeWork NSW v Mark Duffin [2023] NSWDC 272
Court: District Court of New South Wales
Date: 26 July 2023
Judge: Russell SC DCJ
Background
A company officer faced prosecution under the Work Health and Safety Act 2011 (NSW) following the death of a worker in September 2019. The worker was performing maintenance on a pallet-making machine when he was struck by the metal arms of a separate piece of equipment and suffered fatal injuries. The prosecution alleged the officer failed to exercise due diligence to ensure the company complied with its primary health and safety duty, exposing workers to a risk of death or serious injury.
Both parties had consented to a case management timetable under Part 5 Division 2A of the Criminal Procedure Act 1986 (NSW). That timetable required the prosecution to serve its notice of the prosecution case, the defendant to serve a defence response, and the prosecution to serve a notice of disclosure in response, each by specified dates in late 2022 and early 2023.
The dispute arose because the prosecution sought to rely on a new expert report by Inspector Beacham, dated 30 May 2023, which was commissioned and served well after the defendant had already served his defence response. The defendant had not had the opportunity to consider the report before the matter returned to court. The central question was whether the prosecution should be permitted to tender that report at trial at all.
Legal Issues
- Whether the court had power to give a preliminary ruling on whether the prosecution could tender the late expert report at trial.
- Whether the prosecution should be granted leave to rely on an expert report served after the defendant's defence response, in circumstances where both parties had consented to a case management timetable under the Criminal Procedure Act 1986 (NSW).
- What conditions, if any, should attach to any grant of leave.
Decision
His Honour found the court had power to make a preliminary ruling under s 247G of the Criminal Procedure Act 1986 (NSW), read together with s 192A of the Evidence Act 1995 (NSW). Section 192A empowers a court to give advance rulings on the use of evidence proposed to be adduced. The court noted that resolving the question well before trial would allow both parties to prepare properly, inform the defendant of the full case he must meet, and serve the efficient management of the proceedings.
On the substantive question, the court granted leave to the prosecution to tender the report. His Honour acknowledged the report was served later than it should have been and, in an ideal case, would have been commissioned before the prosecution finalised its list of documents. Despite this, the report went directly to key issues in the case, including how the machine operated on the day of the incident and what safety measures should have been taken.
The court also considered that some delay had already occurred since 31 May 2023, and that the defendant would require only a short further period to consider the report. The consent timetable, while departed from by the prosecution, was not a court-imposed timetable, and this was a relevant factor in the exercise of the court's discretion.
The grant of leave was made expressly without prejudice to the defendant's right to object to any part of the report at trial on evidentiary grounds. The costs of the two hearings affected by the late service were reserved for the trial judge, who will also be better placed to assess the ultimate worth and utility of the report.
Orders Made
- Leave granted to SafeWork NSW to tender at trial the Expert Report of Inspector Beacham dated 30 May 2023, without prejudice to the right of the defendant to take objections based on the rules of evidence.
- Costs of 31 May 2023 and 13 July 2023 reserved.
- Proceedings stood over to the Work Health and Safety list at 9.30am on 7 August 2023.
Key Takeaways
- The District Court confirmed that s 247G of the Criminal Procedure Act 1986 (NSW), read with s 192A of the Evidence Act 1995 (NSW), empowers a court to give a preliminary ruling on whether a party can tender evidence at trial, even before any objection based on the rules of evidence is determined.
- Granting such rulings well in advance of trial serves the interests of efficient case management and ensures the defendant knows the full prosecution case being brought against them.
- A consent case management timetable, rather than a court-imposed one, was treated as a relevant factor when assessing whether leave should be granted to rely on evidence served outside the agreed timetable.
- Leave to tender a late expert report does not foreclose evidentiary objections at trial; the trial judge retains full authority to rule on any objection grounded in the rules of evidence.
- Where late service causes additional hearings, courts may reserve costs for the trial judge, particularly where the ultimate utility of the evidence remains to be tested.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), ss 247E, 247F, 247G, 247H, 247I, 247J, 247K, 247L, 257F
- Evidence Act 1995 (NSW), s 192A
- Work Health and Safety Act 2011 (NSW), ss 19(1), 27(1), 32
Cases:
- Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121
- Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) [2015] NSWLEC 97