Citation: SafeWork NSW v Paul Whitmarsh [2025] NSWDC 64
Court: District Court of NSW
Date: 18 March 2025
Judge(s): Russell SC DCJ
Background
SafeWork NSW commenced a prosecution against a defendant under the Work Health and Safety Act 2011 (NSW) in January 2023, arising from an incident on 27 January 2021. The Brief of Evidence was served in March 2023, and a plea of not guilty was entered in June 2024. A procedural timetable was set and progressively refined through late 2024 and early 2025, with trial dates allocated.
SafeWork had initially served expert reports from a Mr Gray with the Brief of Evidence but later decided not to rely on them, on the basis that they were not in admissible form because they lacked reasons for the opinions expressed. In its Notice of Prosecution Case served in October 2024, SafeWork foreshadowed obtaining a replacement expert report and said it would be provided "as soon as possible."
The defendant objected to any further expert report being introduced. SafeWork nonetheless served a new report by Inspector Mark Tobin on 10 February 2025, with supporting documents not provided until 7 March 2025. The defendant brought a motion seeking a ruling that the Tobin Report was inadmissible, arguing that its late service caused significant prejudice with the trial imminent.
Legal Issues
- Whether the Tobin Report should be excluded from evidence at trial, given the lateness of its service relative to the trial dates
- Whether the alternative course of vacating trial dates to accommodate the late report was appropriate in the circumstances
- Whether SafeWork had provided an adequate explanation for the delay in obtaining and serving the replacement expert report
Decision
Issue 1: Admissibility and prejudice from late service
The court found that the admissibility problems with the Gray reports had existed from the time those reports were created and were plainly visible to SafeWork's lawyers when the Brief of Evidence was served in March 2023 (at [23]). The deficiency had become acute by June 2024 when the not guilty plea was entered. Despite foreshadowing a replacement report in October 2024, SafeWork took until February 2025 to serve it, and provided no explanation for that further delay (at [22]).
The court accepted the defendant's submission that proceeding to trial on the Tobin Report without the defendant having had the opportunity to obtain its own responsive expert report would cause significant prejudice (at [24]). It is a fundamental principle that a defendant facing a criminal charge must know the case he has to meet and must have sufficient opportunity to prepare to defend it. Admitting the Tobin Report and proceeding on the allocated dates would offend both principles (at [25]).
Issue 2: Whether to vacate trial dates instead
The court considered the alternative of vacating the trial dates, admitting the report, and allowing the defendant time to engage an expert. It rejected that course (at [26]-[28]). Doing so would push the hearing to 2026, waste allocated court time, cause additional costs that a costs order might not fully compensate, and impose further stress on the defendant facing a serious criminal charge. Most significantly, the court identified the deterioration of witness memory as a critical concern: the incident occurred over four years ago, and a further year's delay would harm the quality of the evidence available to all parties (at [27]).
The court found that SafeWork had not explained why it had not fixed the admissibility problem in the Gray reports much earlier, and that it should not have sought a trial date until it was in a position to proceed without further delay (at [28]).
Orders Made
- SafeWork NSW cannot tender or rely upon the report of Inspector Tobin dated 10 February 2025, or call him as a witness.
- The costs of the Motion are reserved, to be dealt with at the conclusion of the proceedings.
- Liberty to apply to the Associate.
Key Takeaways
- The District Court reaffirmed that a defendant in a criminal proceeding must know the case to be met and must have a sufficient opportunity to prepare a defence, and that admitting a late expert report without time for the defendant to respond would offend both principles (at [25]).
- Where a prosecutor has been aware of admissibility defects in its expert evidence for an extended period, the absence of any explanation for the delay in remedying those defects weighs heavily against allowing the late tender of a replacement report (at [22]-[23], [28]).
- The court declined to vacate trial dates as an alternative remedy, treating the further delay to witnesses' memories as a significant independent harm, particularly where the underlying incident had already occurred more than four years before the hearing (at [27]).
- Under the case management regime in Division 2A of Part 5 of the Criminal Procedure Act 1999 (NSW), including the District Court's Criminal Practice Note 16, prosecutors in WHS matters carry responsibility for ensuring they are ready to proceed without causing avoidable delay, and must use available mechanisms such as liberty to restore if difficulties arise (at [18]-[20], [28]).
- Excluding the expert report entirely, rather than granting an adjournment, was the appropriate remedy where the prosecutor had no satisfactory explanation for delay and the defendant would otherwise face substantial prejudice with costs that could not be fully compensated (at [28]-[29]).
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1996 (NSW) , ss 247A, 247B, 247E, 247F, 247H, 247K
- Work Health and Safety Act 2011 (NSW) , s 229B
Cases
- Not stated