Citation: SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395
Court: District Court of NSW
Date: 2 September 2024
Judge: Scotting DCJ
Background
A worker suffered serious injuries on 22 May 2021 after falling approximately eight metres through a perspex skylight while cleaning solar panels on the roof of a meat market at Pendle Hill. The business was operated by a limited partnership, with three corporate defendants and one individual defendant (a manager employed by the labour hire company) facing charges under the Work Health and Safety Act 2011. The individual defendant had directed the work that led to the incident and was a member of the family that controlled all three corporate entities.
SafeWork NSW inspectors exercised their compulsory questioning powers under section 171 of the WHS Act and interviewed the individual defendant on 22 September 2021. Because that power was used, the record of interview (ROI) could not be admitted against the individual defendant himself, by operation of section 172(2) of the Act. The prosecution sought instead to tender the ROI against the three corporate defendants in the joint trial.
The corporate defendants objected to the tender. Central to their objection was the fact that, as a co-defendant in the same trial, the individual was neither competent nor compellable as a witness under section 17 of the Evidence Act 1995, meaning the corporate defendants had no opportunity to cross-examine him on the contents of the ROI.
Legal Issues
- Whether the statements in the ROI were made with sufficient authority to constitute admissions by the corporate defendants under section 87(1)(b) of the Evidence Act 1995
- Whether admitting the ROI would cause unfair prejudice to the individual defendant, who was also on trial
- Whether the probative value of the ROI was outweighed by the danger of unfair prejudice to the corporate defendants under sections 135 and 137 of the Evidence Act 1995, given the inability to cross-examine the individual defendant
- Whether the corporate defendants had waived any objection by failing to apply for a separate trial
Decision
Authority to make admissions: The court was satisfied that it was reasonably open to find that the individual defendant had authority to make statements on behalf of the corporate defendants within the meaning of section 87(1)(b). He was a senior manager in the family business, directed workers, made financial decisions on behalf of the business, and was identified in company documents as a senior manager for emergency purposes. Workers regarded him as their boss. On that basis, the representations in the ROI qualified as admissions attributable to the corporate defendants.
Unfair prejudice to the individual defendant: The court accepted it was capable, as a judge sitting alone in a summary hearing, of separately considering what evidence was admissible against each defendant. On that basis, admitting the ROI against the corporate defendants would not cause unfair prejudice to the individual defendant, because the court would not use it against him when determining his case.
Unfair prejudice to the corporate defendants: Notwithstanding that the ROI technically qualified as an admission, the court excluded it under sections 135 and 137. The ROI went to the knowledge, intention, and recklessness of the individual defendant, which under section 244 of the WHS Act are the very fault elements the prosecution must establish against the corporate defendants. Without the ability to cross-examine the individual defendant, the corporate defendants could not test the reliability of his answers or resist the inferences the prosecution sought to draw from them. The court found that no adequate direction could cure that prejudice, and that no other evidence remained available to fill the gap.
The separate trial argument: The court rejected the prosecution's submission that the corporate defendants should have applied for a separate trial to preserve their ability to cross-examine. The prosecution had elected to proceed jointly because the charges arose from the same circumstances and the arrangement was efficient. Having made that election, the prosecution was taken to know that the individual defendant would be an "associated defendant" under section 17 of the Evidence Act 1995 and therefore not compellable. The corporate defendants were entitled to take advantage of the efficiencies of a joint trial, particularly given the related parties and shared legal representation.
Orders Made
- The transcript of the recorded interview between Inspectors Ball and Barry of SafeWork NSW and the individual defendant, conducted on 22 September 2021, is excluded.
Key Takeaways
- A record of interview obtained under compulsory questioning powers under the WHS Act is not admissible against the interviewee in subsequent proceedings, but that statutory bar does not automatically prevent its use against co-defendants. The question of admissibility against others requires separate analysis.
- Under section 87(1)(b) of the Evidence Act 1995, a senior manager's statements can constitute admissions by a corporate defendant where the evidence shows they had actual authority to act and make decisions on the corporation's behalf, even without a formal title such as director.
- Where the fault elements required to establish a corporate defendant's liability under the WHS Act depend entirely on the knowledge, intention, or recklessness of a specific individual, the inability to cross-examine that individual in a joint trial may cause unfair prejudice sufficient to warrant exclusion under sections 135 and 137 of the Evidence Act 1995.
- The District Court declined to place the burden on corporate defendants to seek a separate trial in order to preserve cross-examination rights. Where the prosecution chooses a joint trial, it assumes the procedural consequences of that election, including the compellability rules that flow from section 17 of the Evidence Act 1995.
- A judge sitting alone in a summary criminal hearing can, in principle, bifurcate their reasoning and treat evidence as admissible against some defendants but not others. However, that capacity does not resolve prejudice arising from the absence of cross-examination, which goes to the reliability of the evidence itself.
Legislation and Cases Referenced
Legislation:
- Work Health and Safety Act 2011 (NSW), ss 31, 171, 172, 244
- Evidence Act 1995 (NSW), ss 17, 87, 135, 137
- Partnership Act 1892 (NSW)
Cases:
- Galvin v R [2006] NSWCCA 66
- GPI Leisure Corp Pty Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15
- Kirk v Industrial Court of New South Wales (2010) 239 CLR 531