Farrell v Inghams Enterprises Pty Ltd [2025] SAET 120

Pursuant to rule 39.1(1) of the Joint Criminal Rules 2022 (SA), the Informant seeks that the following question be determined prior to the resumption of the evidence in these proceedings:

(i) as at 17 May 2021, immediately prior to him being struck and run over by a reversing vehicle as seen in the CCTV footage contained at exhibits P21 and P45; and

(ii) as it might be shown and inferred from his demeanour, conduct and the other matters set out in the defendant's notice of intention to adduce expert evidence, at [1] to [12], dated and filed 21 February 2024;

relevant to the proof or disproof of the elements of the charge contained on the Information.

1. There is a clear difference between the parties as to the legal elements of the charge as laid. That issue has been flagged during the course of the trial to date.
2. In its opening, the informant stated:

...the duties are to a considerable extent designed to protect employees and employees of contractors from the consequence of their own inattention, carelessness and sometimes foolishness. To the extent that a defendant suggests a cause of an incident such as that involving Mr Langella, even if a defendant could establish a cause, it is irrelevant. That is so because it cannot logically address the risk which is the focus of the offence and the quote there, appearing at paragraph 16, is from Hanel v Cleanaway and the judgment of Kourakis CJ, and the measures to minimise that risk which are to be assessed respectively.

That's particularly so here where the risk is posed to a class of workers, including Mr Langella, the decision-making process or state of mind of a worker exposed to a risk is not germane to proof or disproof of the elements of the offence.[3]

The informant may also call members of Mr Langella's family to give evidence as to his activities, behaviour and state of mind in the weeks prior to and the morning of the incident.

I explained that these witnesses are not on the informant's file trial plan. They are relevant only to the extent to which the defendant intends and is permitted to adduce evidence which forms assumptions for an opinion, based on facts about those matters, and the expert opinion itself, about which the informant was first told last week on Wednesday, 29 November 2023. At that time, the informant was informed that the defence proposed to rely on expert evidence disclosed on that day.

Now, the informant's case is that these matters - this issue of state of mind or otherwise - are irrelevant and, accordingly, inadmissible. But, if the Court were to take a different view on that argument, then the prosecution will need to call members of Mr Langella's family and will need to do so as part of its case to address that foreshadowed defence evidence.[4]

1. In contrast, the defendant submits that the Informant's submission:

ignores the well settled jurisprudence that the conduct charged under

section 19 and section 32 of the WHS Act is the exposure of workers (as particularised) to an identifiable risk of death or serious injury or illness, that arises from work conducted in a business or undertaking, and as a result of a failure to take reasonably practicable measures to eliminate or minimise that risk: for example: Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 at [7][5]

1. That issue first arose in the course of evidence during the cross-examination of B/Sgt Brown. The defendant sought to cross-examine the witness on the topic of the fault of Mr Langella being the cause of his death.
2. Objection was taken to the topic by the Informant on a number of grounds, including:

This is a work health and safety trial where the issue in the trial is the question of risk, and the question is did, for the purposes of the workplace, Inghams take all reasonably practical measures by reference to two matters, to address a risk to health and safety.

Your Honour has heard in my opening that for the purposes of these matters it is irrelevant for the purposes of these matters to identify the cause of an incident. So this is the first part of my objection. That is because we know from intermediate Court of Appeal authority which I have cited and referred to in the opening, that the question of the cause of an incident or who might be said to be causally responsible and for what purpose, because of course one asks the question, "Well, who is proximately responsible?" Is it Mr Langella? Is it Mr Collins? Is it Inghams? It depends on the purpose for which you're asking the question.

The question, and the only question that this Court answers is whether or not there was a risk to health and safety, and then whether or not the defendant took all reasonable and practical steps with respect to it.[6]

1. I overruled the objection. At such an early stage of the trial, I was not prepared to restrict the defendant until relevance was clearer.
2. In a subsequent interchange with the informant, I said:

Yes, I understood, Mr Jacobi, that it's an objection to the topic generally, rather than to the question specifically, and that by not standing up and objecting every time, I don't take it that you concede the relevance or the admissibility.[7]

1. On this basis, questions of subsequent witnesses on this issue went without further formal challenge.
2. I view the informant's present application as seeking to obtain a formal conclusive ruling on relevance and admissibility of such evidence.
3. Whilst I can readily see how a determination of this question may assist with the length of the balance of the trial, conceptually I do not consider a declaration can be made on evidence not yet adduced. Further, it is inappropriate for the Court to offer its imprimatur to a decision by the prosecution to call or not to call witnesses.
4. The informant's application is refused. However, no doubt this issue will arise again during the course of further evidence. Should it do so, and the Informant wish to maintain its objection, then notwithstanding my previous ruling in the evidence of B/Sgt Brown, I invite the Informant to renew its objection. Should it do so, I foreshadow the possibility that I may admit the evidence de bene esse so as not to disrupt the evidence but list the objection for argument. Subject to my ruling on any such objection, it is then for the Informant to determine the witnesses it calls in light of that ruling.

1. In its application, the informant also seeks directions as to what material may be provided to Mr Collins in preparation for his evidence. A schedule of such proposed material has been provided. The defendant neither consents to, nor opposes, this application.
2. The general rule is that a witness is not entitled to hear evidence adduced before their evidence, so that their evidence will not be affected by outside material. However, Mr Collins seeks access to such material, so as to assist in his decision of whether to claim privilege against self-incrimination in relation to the questions likely to be put to him in giving evidence.
3. During the course of oral submissions, the defendant indicated it did not object to the material included in the schedule being made available to Mr Collins. However, the informant during submissions also indicated a wish to provide bodycam footage taken at the scene. Its relevance is that it reveals the outcome of an alcotest conducted on Mr Collins which will inform his decision on whether to claim privilege. The defendant objected to that material being provided to Mr Collins as it has not yet gone into evidence.
4. The relevance of the footage is obvious. I allow Mr Collins to be provided with the material in the schedule, together with the bodycam footage.

1. I will schedule a directions hearing at a date convenient to counsel to fix further dates to give effect to the directions and rulings I have made.

[1] Director of Public Prosecutions (NSW) v Zhang (2007) 48 MVR 78; [2007] NSWSC 308 at [111].

[2] R v Williams (1976) 14 SASR 1 at 3.

[5] Defendant outline of submissions 20/3/24 at [15]