Hunter Quarries Pty Ltd v Morrison

INTERLOCUTORY Judgment OF THE COURT 1This interlocutory judgment deals with a notice of motion filed by the appellants, Hunter Quarries Pty Limited and Richard Alexanda Badior, that: seeks the leave of the Full Bench of the Industrial Court to issue summonses to produce; requires the prosecution to disclose certain documents; and seeks leave to use any document summonsed, disclosed or otherwise produced in certain other proceedings, but that was not tendered or otherwise placed in the public domain.

Background 2The background to the appellants' application is set out in Hunter Quarries Pty Limited v Morrison [2013] NSWIRComm 49 ("Hunter Quarries (No 1)"). Briefly, the appellants pleaded guilty to charges laid against them by the prosecutor, Rodney Dale Morrison, in relation to contraventions of the Occupational Health and Safety Act 2000 ("OHS Act"). The prosecutions related to an incident involving the death of a plant operator, Darren Smith, on 14 June 2005 at a quarry owned and operated by Hunter Quarries Pty Limited, known as Karuah Quarry. Mr Badior was, at the time of the alleged offence, a director of Hunter Quarries and concerned, in particular, in the management and operation of Karuah Quarry as quarry manager. 3In Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179, Backman J convicted the appellants of the offences and imposed sentences. Subsequently, her Honour made consequential costs orders against the appellants. 4In Hunter Quarries (No 1) the Full Bench of the Court dealt with an application by the appellants for an extension of time in which to appeal against the convictions and sentences imposed by Backman J and her Honour's consequential costs orders. The main ground of appeal (set out at [17] of Hunter Quarries (No 1)) was that the prosecution failed to disclose material and evidence some of which had come to light in other proceedings involving the prosecution of Grahame Antony Chevalley (Matter No IRC 956 of 2007) and Hilton Ross Grugeon (957 of 2007). Mr Chevalley was a director and managing director of Hunter Quarries and Mr Grugeon was chairman of the board of directors of Hunter Quarries (after lengthy proceedings the prosecution eventually decided, without explanation, not to proceed against Mr Chevalley or Mr Grugeon and the charges were dismissed: see Hunter Quarries (No 1) at [6]). 5It was further contended for the appellants in support of their application to appeal (and application to extend time to appeal) that: there were fundamental flaws and problems in the prosecution's expert reports; the prosecution failed to investigate material matters that weakened and undermined the prosecution's case or would tend to assist the defence case; and there were failings or errors of counsel representing the appellants in the proceedings before Backman J. It was asserted that there had been a miscarriage of justice and that, inter alia, leave should be granted to the appellants to withdraw their guilty pleas and that the whole of the decision and orders of Backman J be vacated, set aside or quashed. In the alternative, the relief sought was that: (a) the charge is dismissed. (b) the charge is permanently stayed. (c) the Full Bench declines to have the matter set down for a new trial. (d) the matter of criminal liability is remitted to another judge to determine according to law. (e) the sentence imposed is vacated and the matter is remitted to another judge to determine according to law. 6The Court determined in Hunter Quarries (No 1) that leave should be granted to the appellants to extend time to appeal. In doing so, the Full Bench stated: [67] In the context of considering the applications for leave to extend time to appeal we have examined the evidence, such as it is, and considered the submissions of the parties in relation to: (i) the leak on the retarder valve; (ii) the prosecutor's case that only 250 hour services were done about 400 hours apart; (iii) expert reports; (iv) the competence of the mechanic, Mr Boyd Taylor and his familiarity with an accumulator; (v) the mobile phone records; and (vi) the role of the State of NSW in its emanation as the Department of Primary Industries. [68] In considering the evidence and submissions regarding the sixth matter, that is, the role of the DPI, we have come to the firm view that leave to extend time to appeal should be granted. We have reservations about whether the applicants have made out a case for extension of time in relation to the first five of these matters. However, on balance and because of the interconnectedness of some of the issues upon which the applicants rely, we have decided to grant leave to extend time to appeal in respect of the whole of the applications for leave to appeal and appeal. We propose to make appropriate orders and directions for the hearing of the applications once we have provided analysis of the role of the DPI, which immediately follows.

Short minutes of order 7Before proceeding to deal with the appeal it became necessary for the Full Bench to address claims by the appellants regarding material they contended had not been produced and which was necessary to conduct their case on appeal. In that regard, the Full Bench made the following orders: 1. The appellants are to file and serve any Notice of Motion seeking leave to issue any Summonses to Produce or for any other order for production on or before Friday, 2 August 2013. 2. In relation to order 1, drafts of any proposed Summonses to Produce should be annexed to the Notice of Motion with each item listed in the Summonses to be footnoted with a reference to the evidence relied on in support of an order for production of the specific item and to any part of the judgment delivered by the Full Bench on 17 June 2013, that relates to or concerns the specific item sought. 3. The appellants are to file and serve a schedule of evidence already adduced in the extension of time applications that is relied upon by the appellants in support of order 1 on or before Friday, 2 August 2013. 4. The appellants are to file and serve any additional evidence that is relied upon by the appellants in support of order 1 on before Friday, 2 August 2013. 5. In relation to order 4, the appellants are granted leave to use or rely upon, in support of any Notice of Motion referred to in order 1 only, any document or record contained on the "Sunol disc" which did not go into the public domain in matters lRC 956 of 2007 and IRC 957 of 2007 but was produced as a result of calls for or requests to the prosecution by either or both of Mr Chevalley and Mr Grugeon in those proceedings. 6. The respondent is to file and serve a schedule of evidence already adduced in the extension of time applications that is relied upon by the respondents on before 16 August 2013. 7. The respondent is to file and serve any additional evidence that is relied upon by the respondent on before 16 August 2013. 8. The appellants are to file and serve outlines of submission on the motion on or before 23 August 2013. 9. The respondent is to file and serve an outline of submissions on the motion on or before 6 September 2013. 10. Any person to whom a summons is addressed is to file and serve: (a) a schedule identifying all paragraphs of the summons that the person to whom the summons is addressed will comply with; (b) a schedule identifying any documents that the person or the prosecution will otherwise produce; and (c) a schedule identifying any objection (including the fact of and the nature of) made to the proposed summons, on or before 6 September 2013; and 11. The appellants are to file and serve a response to the respondent's submissions and schedules on or before 20 September 2013. 12. The motion is listed for hearing for one day before the Full Bench at 10:00am on 26 September 2013. 13. Liberty to apply to Walton J, Vice-President on reasonable notice.

Appellants' notice of motion 8The notice of motion subsequently filed by the appellants sought the following orders: 1. The Court grants leave to issue a summons to produce addressed to the State of New South Wales (Department of Trade & Investment - Resources and Energy) in the terms of Attachment A to this Notice of Motion. 2. The Court grants leave to issue a summons to produce addressed to Rodney Morrison in the terms of Attachment B to this Notice of Motion. 3. The Court grants leave to issue a summons to produce addressed to The Crown Solicitor for the State of New South Wales in the terms of Attachment C to this Notice of Motion 4. In addition to what is already captured by either or both of Attachments A, B and/or C, to this Notice of Motion, the prosecution must disclose documents which are material, if they can be seen, on a sensible appraisal by the prosecution, (a) to be relevant or possibly relevant to an issue in the case, (b) to raise or possibly raise a new issue the existence of which is not apparent from the prosecution case, or (c) to hold out a real (as opposed to a fanciful) prospect of providing a lead on evidence going to either (a) or (b). 5. Leave be granted to the appellants to use any document summonsed, disclosed or otherwise produced in Nash v Chevalley and Grugeon (Matters no IRC 956 and 957 of 2007) but not tendered or otherwise placed in the public domain. 9It may be seen that the appellants seek three types of orders: (a) Leave to issue three summonses to produce on respectively the prosecutor, Rodney Morrison, the Crown Solicitors Office ("CSO") being the prosecutor's solicitors, and the State of New South Wales (Department of Trade & Investment - Resources and Energy) ("DTI") (orders 1 - 3). The State was previously known as the State of New South Wales (Department of Primary Industries) ("DPI"). (b) Compliance with the law of New South Wales in respect of prosecutorial disclosure (order 4). (c) Leave be granted to the appellants to use any document summonsed, disclosed or otherwise produced in Nash (formerly Morrison) v Chevalley and Grugeon, Matters No IRC 956 and 957 of 2007, but not tendered or otherwise placed in the public domain (order 5).

Context 10The relief the appellants seek, including leave to withdraw their pleas of guilty, setting aside the sentencing judgment and a permanent stay, falls within a particular context. First, the original Applications for Order charging Hunter Quarries and Mr Badior with offences under the OHS Act were filed at the same time as Applications charging Mr Chevalley and Mr Grugeon. Orders were made in respect of each of the four defendants requiring each to appear before the Court to answer the offence charged in each Application for Order. The prosecution brief was served on or about 7 August 2007. Mr Chevalley and Mr Grugeon entered pleas of not guilty on 15 February 2008. Hunter Quarries and Mr Badior subsequently entered pleas of not guilty. 11On 7 October 2008, the trials in respect of all four defendants commenced before Backman J; by consent, all matters were heard together. During the course of that and the following day the prosecutor opened the prosecution case. On 9 October 2008, the prosecutor, following discussion between counsel and without objection, sought and obtained orders from Backman J, substituting Amended Applications for Order in all four matters. Following the amendment, Hunter Quarries and Mr Badior entered a plea of guilty to the amended charges, though not accepting the truth of all the facts alleged by the prosecutor against them. Sentencing proceedings then continued against Hunter Quarries and Mr Badior. 12In relation to Messrs Chevalley and Grugeon, it was noted in Hunter Quarries (No 1) at [6]: [T]here followed a series of cases in the Industrial Court, NSW Court of Appeal and High Court in which the two defendants had sought, unsuccessfully, to have the charges against them dismissed. On 22 October 2012, however, the prosecution apparently decided against proceeding with charges against Mr Grugeon and Mr Chevalley. This led to the proceedings in matter no IRC 956 and 957 of 2007 being dismissed and each defendant being discharged. No reasons were provided to the court as to why the prosecution had decided not to proceed against the two defendants. 13Secondly, the appellants were represented by senior and junior counsel experienced in the Court's OHS jurisdiction. 14Thirdly, Backman J was provided with a document that constituted the Agreed Facts in the proceedings. Notwithstanding the Agreed Facts, there were a substantial number of facts that were not agreed and Backman J was required to determine the factual matters in dispute and did so. A summary of her Honour's findings regarding the disputed facts is to be found at [222] of her judgment. In our opinion, it is evident from the disputed facts that the appellants and their counsel did not simply capitulate in the face of the charges against them, but took a forensic approach to examining the factual ingredients of the prosecution's sentencing case in order to test the validity of those ingredients. 15Fourthly, in relation to the defendants' pleas of guilty, Backman J noted these were entered to the amended charges on the third day of the defended hearings. In this respect, her Honour found at [290]-[291]: [290] Here the pleas were entered after the commencement of the summary defended hearings. It is difficult to assess whether the pleas produced benefits (to the administration of justice) arising from the prospective length and complexity of the hearing. The sentence proceedings were heard over several days. The reason for this was that the prosecution sought to rely on additional factors in aggravation of the defendants' culpability, as it was entitled to do, and the defendants disputed the facts relied upon by the prosecution to establish those factors, as they were also entitled to do. [291] The defendants' contention, advanced in general terms only, was that the amendments to the charges were significant and should be regarded as new charges. A comparison of the two sets of charges does not bear this out. In my view, the amendments were relatively minor, resulting in the deletion of some "sub-particulars" of the multiple particulars of the offence under s 8(1) with some re-wording of other "sub-particulars" which did not change the nature of the offence in any substantial or significant manner. 16Fifthly, although the notice of appeal and application to extend time to appeal was filed on 1 November 2012, that is, about two years and 11 months late, it was contended by the appellants that the flaws and failures alleged against the prosecutor only came to light in the proceedings against Messrs Chevalley and Grugeon and once the charges in those proceedings were dismissed the appellants "promptly instituted" their appeals. In granting the extension of time, the Full Bench in Hunter Quarries (No 1) noted at [40] that some of the material that the appellants now rely on was known to them as early as May 2012 (we also note the appellants held the view that Backman J erred in her sentencing judgment: for example, that her Honour did not apply the criminal standard of proof in finding the vehicle in question ran out of fuel, a matter contested by the appellants in the sentencing hearing). The Full Bench questioned why the revelation of this material in May 2012 did not prompt an appeal application at the time. Nonetheless, the Full Bench was prepared to give the appellants the benefit of the doubt that the matters they contended came to light in the Grugeon/Chevalley proceedings did not coalesce in their minds as providing grounds for an appeal until dismissal of the charges in those other proceedings: see Hunter Quarries (No 1) at [42]. 17Sixthly, the extension of time was granted on the basis that the appellants had made out a case for extension on the basis of evidence that indicated there were questions about the role of the DPI in the investigation of the June 2005 incident. The Full Bench indicated it had reservations about whether the appellants had made out a case for extension of time in relation to other matters relied upon. Nevertheless, the Full Bench decided, "on balance and because of the interconnectedness of some of the issues upon which the applicants rely", to grant leave to extend time to appeal in respect of the whole of the applications for leave to appeal and appeal. 18We have referred to the context in which these current proceedings are set to make the point that the foundations upon which the appellants seek to move the Court are not particularly strong. In that respect, it is pertinent to note what Kirby P stated in Liberti v R (1991) 55 A Crim R 120, Kirby P (Grove and Newman JJ agreeing) at 122: For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence. See R v O'Neill [1979] 2 NSWLR 582; 1 A Crim R 59; R v Sagiv (sic) (1986) 22 A Crim R 73 at 81. 19As we have discussed, with the assistance and advice of senior and junior counsel, the appellants pleaded guilty to charges amended in relatively minor ways notwithstanding that Messrs Grugeon and Chevalley had entered not guilty pleas. 20With the assistance and advice of senior and junior counsel the appellants agreed to a statement of facts, which included a concession by Mr Badior, for example, that he was aware that the driver of the truck in question, Mr Smith, omitted to complete pre-start checks on the vehicle. If the pre-start check had been completed on the day of the accident it would have identified significant defects that had been found to have contributed to the accident. 21There were some 26 disputed facts strongly contested by the appellants in the sentencing proceedings, indicating a close analysis by them of the prosecution's case on sentencing. There was a significant delay in filing the appeal despite it being apparent there were grounds to appeal available some seven months before the appeal was filed. And finally, in the extension of time proceedings, the Full Bench indicated that in relation to most of the matters relied upon by the appellants to gain an extension, it had reservations about whether the appellants had made out a case. 22The appellants submitted the following appellate authorities on prosecutorial non-disclosure will need to be considered and applied by the Full Bench: (a) Aouad and El-Zeyat v R [2011] NSWCCA 61; (2011) 207 A Crim R 411 (Aouad) at [361] - [368]; (b) Regina v Richard Lipton [2011] NSWCCA 247; (2011) 82 NSWLR 123 (Lipton [2011]); (c) Wood v R [2012] NSWCCA 21 at [706] - [714] (Wood) and the authorities cited therein; (d) Gilham v R [2012] NSWCCA 131(Gilham) at [545], [546]. 23The foregoing authorities provide useful explanations of the law relating to miscarriage of justice on account of fresh evidence and evidence undisclosed at trial. However, in relation to Aouad and Lipton there is no affinity between the facts in those cases and the facts in the present proceedings. 24Aouad was an appeal relevantly concerned with the failure to disclose an investigator's note to the appellant's legal representatives regarding a conversation between a Crown witness and a senior cleric. In speaking to the cleric the witness "addressed the Sheikh respectfully and swore by Allah that he did not recognise the killers." However, the witness later swore a statement naming the killers. It was held if the note had been available at the trial, it would have dealt a "serious blow" to the witness's credibility and that failure to disclose the note involved a significant denial of procedural fairness. 25In Lipton 2011, the accused had pleaded guilty to two counts of supplying a large quantity of prohibited drug. The accused sought to ascertain the role of third party in relation to his involvement in the offences to which he had pleaded guilty. The police had informed the Director of Public Prosecutions they held information "which might reasonably be expected to assist in the case for the prosecution or the case for the accused person", but that material was subject to a bona fide claim of privilege, public interest immunity or statutory immunity. It was held per McColl JA (RS Hulme and Hislop JJ agreeing): (1) The Director of Public Prosecutions Act 1986, s 15A, requires the police to disclose, that is produce, to the DPP all relevant information and documents, even where police believe that a genuine claim to public interest immunity may exist. (2) The DPP has a duty to evaluate all of the material and assess whether it should be disclosed to the accused. This duty cannot effectively be discharged unless the DPP has actual access to all information relevant to an issue in the case. (3) In the event that the DPP asserts a claim for public interest immunity, a duty still exists to advise the defence of the existence of the material. Whether or not that material will be disclosed to a defendant is for a court to determine. (4) The pro forma police disclosure certificate is invalid to the extent that it departs from the language of s 15A and allows police to withhold relevant material from the DPP. 26Wood was an appeal by the appellant from his conviction for murder. After dealing with the authorities concerning a miscarriage of justice on account of fresh evidence and evidence undisclosed at the trial, McClellan CJ at CL considered whether a book published by Associate Professor Cross and a lecture that he posted on his website after the trial and whilst the appeal was pending, constituted fresh evidence. As it was observed at [716], Associate Professor Cross was important in the Crown case. From his process of experimentation, physical measurement and deduction, the Crown sought to persuade the jury that the possibility that the person whom the appellant was alleged to have murdered committed suicide, could be excluded. 27The book was a comprehensive account of A/Prof Cross' opinion of various aspects of the evidence and of his involvement in the investigation. Of the book and lecture, McClellan CJ at CL said at [717]: My reading of the book and the lecture leads me to the conclusion that if it had been available at the trial, it would have significantly diminished A/Prof Cross' credibility. In the book A/Prof Cross makes plain that he approached his task with the preconception that, based on his behaviour, as reported after Ms Byrne had died, the applicant had killed her. He clearly saw his task as being to marshal the evidence which may prosecution to eliminate the possibility of suicide and leave only the possibility of murder. The book is replete with recitations of his role in solving the problem presented by the lack of physical evidence and records how he was able to gather the evidence which enabled the prosecutor to bring proceedings against the applicant. 28The appellants seek to draw a parallel between A/Prof Cross and Mr Sunol, alleging that Mr Sunol: (a) had a long involvement with the prosecutor's allegations; (b) provided advice and comments to the prosecutor; and (c) helped formulate the prosecutor's arguments. 29Whether the appellants can make good these allegations will depend on the evidence and submissions on the appeal. What we are concerned with at this stage of the proceedings, in applying the 'legitimate forensic purpose' test and the 'on the cards' test, is whether certain material particularized in the draft summonses should be produced to the appellants so that they may use it (or not) on the appeal. In that respect, we have considered the draft summonses as they relate to Mr Sunol's involvement and reached certain conclusions. Our analyses and conclusions are set out in the course of our judgment below. 30Gilham was another appeal from a conviction for murder. However, it did not concern prosecutorial non-disclosure. The relevant issue was fresh evidence admissible on the appeal and the effect it had on the finding of guilt and conviction of the appellant.

Summonses to produce (orders 1-3) 31The draft summonses were relevantly identical. A copy of the draft summons proposed to be issued to DTI is contained in the annexure to this judgment and forms part of this judgment. The summonses identified the material called for in 90 paragraphs. The first two paragraphs seek material in relation to the reasons why the prosecution decided not to proceed against Mr Chevalley and Mr Grugeon. Paragraphs [3]-[90] inclusive of the schedules to the draft summonses seek documents or records not disclosed by the prosecution to the defence in the proceedings before Backman J. 32In relation to paragraphs [3]-[14], DTI and CSO have no objection to the issue of the summonses addressed to them although they foreshadow opposition to access being granted to a number of documents on the grounds of legal professional privilege. Consequently, DTI and CSO have filed a joint schedule indicating that they have no objection to paragraphs [3]-[14] of the draft summonses addressed to them, that they will comply with those paragraphs, and listing the documents in their possession, custody and control that answers these paragraphs, subject to privilege. 33The rationale for not opposing production under paragraphs [3]-[14] (subject to privilege) appears to be that in Hunter Quarries (No 1) the Full Bench considered that in relation to the role of the DPI (now DTI) there was a clear case made out that leave to extend time to appeal should be granted. The material sought in paragraphs [3]-[14] of the draft summonses relate to the role of the DPI in the investigation of the 14 June 2005 incident. 34DTI and CSO objected to the production of material sought in paragraphs [1] and [2] and [15]-[90] of the schedules to the draft summonses, on the grounds that the material would serve no legitimate forensic purpose, that it was not 'on the cards' that the material would materially assist the appellants' case, that it would not be necessary and expedient in the interests of justice to have to produce the material and that the time and cost involved in complying with the draft summonses makes them oppressive. 35In relation to the draft summonses proposed to be issued to Mr Morrison, in accordance with the direction in Order 10 of the orders made by the Full Bench, he has filed and served a schedule indicating he has nothing to produce.

Power to grant leave to issue summonses and applicable principles 36The relevant provision governing the Court's power to grant leave for the issue of Summonses for Production in these appeal proceedings is to be found in s 12 of the Criminal Appeal Act 1912 ("CA Act"). This was not in issue. Section 12 relevantly provides: 12 Supplemental powers of the court (1) The court may, if it thinks it necessary or expedient in the interests of justice: (a) order the production of any document, exhibit, or other thing connected with the proceedings, and ... 37It was also not in issue that if orders to produce are to be made the appellants must: (i) identify a legitimate forensic purpose for which the documents are sought; and (ii) establish that it is 'on the cards' that the documents will materially assist their cases: see Saleam 1989; Regina v Saleam [1999] NSWCCA 86 at [11], [12], [26] and [32] ("Saleam 1999"); Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536 at [64]-[69], [81], [85]-[87]. 38The appellants contended, however, that the respondent was wrong in arguing that the relevant test or overarching test, under s 12 of the CA Act, was whether or not it was necessary or expedient in the interests of justice that the summonses for production are issued. The appellants submitted that in Saleam 1999, although s 12 was not expressly mentioned by the Court of Criminal Appeal, it could only have been that power that was being referred to by Simpson J (Spigelman CJ and Studdert J agreeing) where it was said: [11] The principles governing applications of this kind are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is "on the cards" that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was. We agree with the respondent's submission that while the legitimate forensic purpose test and the 'on the cards test' are proper and appropriate inquiries for the Court to undertake when determining whether to order the production of documents, the exercise of the Court's power under section 12 of the CA Act, is conditioned on it being "necessary or expedient in the interests of justice".

Paragraphs 1 and 2 of the Draft Summonses 39As mentioned, the first two paragraphs of the schedules to the draft summonses seek material in relation to the reasons why the prosecution decided not to proceed against Mr Chevalley and Mr Grugeon. The appellants submitted this material should be produced because fundamental defects and unfairness in the content and conduct of the prosecution case explain why the respondent unilaterally initiated the dismissal of the charges against Mr Chevalley and Mr Grugeon, consented to their discharge as defendants and then ultimately consented to this Court ordering that the prosecutor pay $982,500 in costs. 40It was further submitted that the prosecution of Messrs Chevalley and Grugeon involved: [A]n initial 3 days of a trial (in 2008); a further 22 days of a trial (in 2012); the stage the trial reached was near the end of the prosecution case and in particular the main prosecution expert witness (Mr Sunol) was under strong defence cross-examination in which many concessions were made; all of the remaining prosecution witnesses were State (DPI) witnesses who were to be cross-examined about the role of the State; there was to be a ruling on a voir dire as to the admissibility of prosecution expert evidence at the conclusion of the prosecutor's case; the prosecutor unilaterally initiating, without any defence representations being made, the dismissal of the charges... 41It is entirely speculative that material in relation to the reasons why the prosecution decided not to proceed against Mr Chevalley and Mr Grugeon would materially assist the appellants' case. In relation to the proposition that the main prosecution expert witness, Mr Sunol, was under strong defence cross-examination in which many concessions were made, in our opinion to say there were "many concessions" that might be considered damaging to the prosecution's case is an exaggeration. As to the submission regarding DPI witnesses to be cross-examined about the role of the State, the respondent had no objection to the production of materials regarding that role (subject to client legal privilege). As to the impending ruling on a voir dire regarding the admissibility of prosecution expert evidence, there is no indication as to which way that ruling may have gone. And as to the prosecutor deciding not to pursue the charges against Mr Chevalley and Mr Grugeon, that is a matter entirely within the discretion of the prosecution. 42In the normal course of proceedings involving a criminal prosecution, it would not be appropriate for this Court to go behind the prosecutor's decision not to pursue charges against a defendant. No basis has been established in these proceedings to make an exception to that rule. That the prosecution did not disclose certain documents to the appellants is not a basis, of itself, to believe or consider likely that the prosecution deliberately withheld information that might assist the appellants' case including information as to the reasons why the charges against Messrs Chevalley and Grugeon were not pursued. As the respondent submitted, the prosecutorial duty of disclosure does not require an indiscriminate and wholesale delivery to a defendant of every document produced or obtained by the prosecutor in the course of conducting a prosecution, but rather, the production of material documents following "a sensible appraisal by the prosecution". 43There is no evidence or indication to suggest that the charges against Messrs Chevalley and Grugeon were not proceeded with for the reason, as the appellants would seek to infer, that if the proceedings were to continue the prosecution's case would inevitably collapse and that, therefore, a decision was made by the prosecution to cut its losses. 44Even if it was appropriate for the Court to open up the reasons why the prosecution decided not to proceed against Mr Chevalley and Mr Grugeon, the onus was on counsel for the appellants to identify expressly and with precision the legitimate forensic purpose for which they seek access to documents: Saleam (1989). Counsels' efforts in that respect rise no higher than circumstances suggest the relevant purpose might exist and what they wish to do is engage in an impermissible process of discovery to confirm whether or not their suspicions may be confirmed. 45Leave is refused in respect of paragraphs [1] and [2] of the draft summonses.

Paragraphs 15 to 42 of the draft summonses 46Paragraphs [15]-[42] of the schedules to the draft summonses are directed to the mechanical engineering report of Mr Sunol. Mr Sunol was a mechanical engineer employed by the DPI and he participated in the investigation of the incident in which Mr Darren Smith was killed on 14 June 2005. Mr Sunol was the principal expert relied upon by the prosecution and his report was central to the prosecution's case and to Backman J's findings in relation to sentence. 47Mr Sunol prepared an investigative report for the DPI ("2006 report"). That report was dated 28 June 2006. It was served on the appellants on or about 7 August 2007 as part of the prosecution brief. A further report was prepared by Mr Sunol dated 19 September 2008 and was served on the appellants and tendered at the sentencing hearing ("expert report"). 48In the grounds of appeal it was asserted: 4. Prosecution expert reports that were tendered by the Respondent offended the following propositions: a) Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to the form or content by the exigencies of litigation. b) Solicitors and counsel must not settle the evidence of an expert. c) Lawyers should not be involved in the writing of reports by experts in relation to the substance of the reports. 5. Prosecution expert reports and evidence did not comply with rules and tests of admissibility and were therefore wrongly received or should have been afforded no weight. 49More specifically, it appears the appellants wish to contend on the appeal that the prosecutor failed to comply with obligations of experts and the Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules 2005, namely that: (1) None of the prosecutor's experts (including Mr Sunol) say that, at the time he prepared his report, he had any familiarity with the obligations of an expert giving evidence. (2) The prosecutor settled expert reports, suggested changes to expert reports and was involved in the writing of reports by experts in relation to the substance of the reports. Mr Sunol was not the author of or was not responsible for making changes to the substance and content of his expert report. (3) The involvement of the prosecutor in the expert reports led to inadmissible evidence being included rather than excluded. (4) Mr Sunol was part of the investigation team, that he clearly saw his task as being to marshal evidence (including from other experts), that he was an active participant in attempting to prove what became the four particulars in the Amended Application as they were largely drawn from his report, that he did not remain impartial to the outcome and that he did not offer independent expertise to the Court.

Mechanical engineering report of Mr Sunol - Code of Conduct and expert obligations 50The appellants submitted that paragraph [35] of the summonses should be ordered so that the appellants may fully put their argument that the prosecutor failed to comply with obligations of experts and the Code of Conduct in Schedule 7 to the Uniform Civil Procedure Rules. It was submitted that no prosecution expert had any familiarity with the obligations of an expert witness when their first report was completed in 2006 or 2007 and it is not possible to retrospectively comply as attempted by the prosecutor in 2008: see, in particular, Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 at [32], [35] - [36] and Wood v R [2012] NSWCCA 21 at [725] and [729]. 51It was further submitted Mr Sunol decided by and for himself what was in his 2006 report; there was never any instructions letter or questions provided to him for the purposes of preparing any report. The evidence shows that the purported compliance with the expert Code of Conduct was inserted in 2008 into the expert report. 52That Mr Sunol and other expert witnesses for the prosecution may not have been aware of the Code of Conduct governing expert testimony when they prepared their initial reports and may not have been familiar at that time with the obligations of an expert (including Schedule 7 of the Code of Conduct), does not lead one automatically to the conclusion that the evidence should be rejected. 53In Wood, McClellan CJ at CL observed: [728] It may be, as some previous decisions suggest, that an expert's evidence is not inadmissible merely because the expert has breached or overlooked the Expert Witness Code of Conduct: United Rural Enterprises Pty Ltd v Lopmand Pty Ltd [2003] NSWSC 870 at [12] (Campbell J); Rich at [333] (Austin J); Stamoulis at [208] (Ipp JA, Beazley and Giles JJA agreeing); see Commonwealth Development Bank of Australia Pty Ltd v Cassegrain [2002] NSWSC 980 at [9] (Einstein J). This position accords with the view that bias is "no reason not to admit evidence of [the] expert": Li v The Queen (2003) 139 A Crim R 281; [2003] NSWCCA 290 at [71] (Ipp JA, Whealy and Howie JJ agreeing); see also Haoui v R [2008] NSWCCA 209 at [127]. It also aligns with the reality that "[h]owever desirable these new rules and protocols [contained in expert witness codes of conduct] may be, they cannot establish changes to the principles underlying the law of evidence": FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33 at [15] (Ormiston JA, Chernov and Eames JJA agreeing). [729] This is not to say that the Expert Witness Code of Conduct is merely aspirational. Where an expert commits a sufficiently grave breach of the Code, a court may be justified in exercising its discretion to exclude the evidence under ss 135 or 137 of the Evidence Act. Campbell J adverted to this possibility in Lopmand when his Honour stated at [15]: "The policy which underlies the existence of Part 36 rule 13C is one which I should take into account in deciding whether [the expert evidence] should be rejected under section 135." I respectfully agree with that approach. While there is no rule that precludes the admissibility of expert evidence that fails to comply with the Code, the Code is relevant when considering the exclusionary rules in ss 135-137 of the Evidence Act. The expert's "failure to understand his [or her] responsibilities as an expert" ( Lopmand at [19]) may result in the probative value of the evidence being substantially outweighed by the danger that it might mislead or confuse or be unfairly prejudicial to a party. 54There is no evidence to suggest the prosecution's experts were not familiar with their obligations at the time they came to prepare their expert reports. What evidence is available suggests that at least in respect of Mr Sunol, counsel for the prosecution did take steps to ensure compliance with the expert witness code in August 2008, noting that Mr Sunol signed his expert report on 19 September 2008. 55Whilst Mr Sunol did prepare the 2006 report, the evidence suggests that under counsel's guidance he then went through an extensive review of that earlier report for the purpose of ensuring he met the requirements of the expert's code. Out of that review Mr Sunol produced the 2008 expert report. After describing his extensive experience, expertise and qualifications, Mr Sunol stated in his expert report that he had read the Code of Conduct and agreed to be bound by it. 56In Hodder Rook & Associates Pty Ltd v Genworth Financial Mortgage Insurance Pty Ltd [2011] NSWCA 279, Young JA, in considering principles to be applied to the admission of expert reports, stated, inter alia, at [63]: [I]n the case where an expert makes an initial report without having the Code in mind and then is shown the Code and swears that in fact he or she did abide by it and now affirms the original report, the evidence should be admitted. Again, if the court can see that he or she is not just rubber stamping the original report, the later report should be admitted into evidence. 57It is apparent that each case must be considered on its merits (Hodder Rook at [63] per Young JA) and that "it is necessary to consider all the circumstances of the case in order to determine whether the objectives sought to be secured by UCPR r 31.23 have been affected by the non-compliance": Welker & Ors v Rinehart & Anor (No 6) [2012] NSWSC 160 at [35] per Ball J. 58In Welker, Ball J was not satisfied that he should make an order dispensing with compliance with UCPR r 31.23 in respect of any of the reports in that case. However, Welker may be distinguished. In that case the experts merely swore affidavits saying that they had now read the code and confirmed the opinions expressed in their reports. As we have explained, that was not the situation with Mr Sunol. 59In any event, and this goes to the test in s 12 of the CA Act, namely, "necessary or expedient in the interests of justice", in the initial trial proceedings before Backman J, the appellants were represented by experienced counsel who had the 2006 report as part of the prosecution brief and the 2008 expert report as part of the evidence in the proceedings. There was every opportunity to explore the issue of compliance with the expert witness code and to oppose the admissibility of the expert report, which was a centrepiece of the prosecution case. That did not occur. Instead, pleas of guilty were entered to amended charges and agreement reached on a statement of facts that reflected the findings and opinions in the expert report. 60It cannot be assumed that because counsel did not challenge the report that circumstance "was of such a nature... as to have led to a miscarriage of justice": Igjnatic v R (1993) 68 A Crim R 333 at 338. There could be a reasonable explanation why counsel chose not to challenge and it is difficult to envisage experienced counsel not being alert to the opportunity to explore the issue of whether Mr Sunol complied with the expert witness code if that was considered to be in the appellants' interests.

Mr Sunol - circumstances in which the prosecution changed, settled and took reports 61The appellants next submitted paragraphs [15] - [18], [20] - [26], [28], [31] - [33], [36] and [42] of the draft summonses should be ordered, as the appellants have the legitimate forensic purpose in pursuing whether the prosecutor settled expert reports, suggested changes to expert reports and was involved in the writing of reports by experts in relation to the substance of the reports, whether the involvement of the prosecutor in the expert reports led to inadmissible evidence being included rather than excluded and whether the prosecutor failed in his duty to act fairly. 62The appellants submitted: Fairness dictates that the prosecutor in 2008 should have disclosed and in 2013 should be ordered to produce documents or records that it is 'on the cards' will show with particularity and specificity: what in August - September 2008 was the true process engaged in with the expert by the prosecution's lawyers; what instructions were given orally to the expert during the multiple conferences; what assumptions (if any) were given orally to the expert during those conferences; what changes were suggested by the prosecution's lawyers; what parts of the report were settled by the prosecution's lawyers; what is on and in the working copy of the Sunol report that was settled in conference with Mr Sunol; what changes were made by the prosecutor's lawyers whilst Mr Sunol was on leave on a skiing holiday; and what is on the disk that was ready to be picked up from counsel that had the Sunol report on it? 63The appellants, on 15 August 2013, placed the respondent on notice that a further order to produce would be sought, namely: 21A. For the period 25 August 2008 to 30 September 2008 inclusive, any document or record in relation to when Mr Sunol was on leave, when he was at work and, if and when at work, at what place(s) he attended work on each day of work. 64The appellants submitted there were conferences involving Mr Sunol, junior counsel and the CSO on 28 August 2008 (7.5 hours), 29 August 2008 (4 hours 50 minutes) and 5 September 2008 (8 hours). It was submitted Mr Sunol went on leave on a skiing holiday and that the prosecutor's lawyers continued working on Mr Sunol's report whilst Mr Sunol was on leave. The appellants submitted: In the absence of Mr Sunol, an unsigned version of the 2008 report of Mr Sunol was sent to Hunter Quarries Pty Ltd on about 10 September 2008. It is 'on the cards' that some of the changes and settling of the substance of the report and annexures occurred without any input from Mr Sunol who was on leave skiing at the time... It is 'on the cards' that a report being prepared in this manner supports the appeals being allowed due to a miscarriage of justice occurred, the appellants suffered injustice and a significant denial of procedural unfairness occurred. 65The fact that Mr Sunol went on leave and that prosecution lawyers continued to work on the report is not, of itself, a reason to conclude the lawyers were inappropriately involved in making changes to the report or that Mr Sunol had no input to the report whilst he was on leave. It was not suggested Mr Sunol was incommunicado for the period he was on leave. 66The test of 'on the cards', in our opinion, means more than that there is a mere possibility the document sought will materially assist a litigant's case. If mere possibility were the test, a subpoena or summons to produce would be no more than a fishing expedition. 67In ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307,Tobias JA compared the test of 'on the cards' and the test applied by the primary judge, Nicholas J in ICAP Pty Limited v Moebes [2009] NSWSC 306, namely, "it must be shown that it is likely [that] the documentation will materially assist on an identified issue". His Honour's comparison suggests that the tests are not materially different. At [22] Tobias JA (with whom Basten JA and Handley AJA agreed) stated: [22] As to his Honour's use of the expression "it must be shown that it is likely [that] the documentation will materially assist on an identified issue" and his alternative statement that there be a "reasonable basis beyond speculation that it is likely" the documentation will so assist, I do not regard his use of the word "likely" as being any different in the context of a case such as the present to the expression "on the cards" which finds its genesis in the judgment of Gibbs CJ in Alister at 414. The word "likely" has a number of different shades of meaning depending on the context in which it is used and in the present context I see no reason to regard his Honour's use of the word as having any different meaning to the concept to which the Chief Justice was referring in Alister and which his Honour articulates at [27] of his judgment. If one applies the 'likely' test or that there be a 'reasonable basis beyond speculation that it is likely', it could not be concluded, on the current evidence, that it was likely Mr Sunol had no input to the report whilst he was on leave. 68The more fundamental question, however, is whether the prosecutor's lawyers inappropriately or improperly settled expert reports, suggested changes to expert reports and/or were involved in the writing of reports by experts in relation to the substance of the reports. 69In that regard, reference was made to Mr Sunol's cross-examination in the Chevalley/Grugeon proceedings where he indicated that he could not recall making changes to any opinions between the 2006 report and his expert report and when asked if he made changes to findings he said that he could not recall changing "the intent of the outcome." A further exchange was as follows: Q. If there was a change to one of your findings in your 2006 report, was it explained to you that you should point out that change and why you made it? A. I don't recall making any changes. It was - one of the things that was asked of me in the two reports was to make them, to not change. The second report is effectively my first report which, to make it clearer what was my assumptions, and what was my factual observations, and from those, I would draw conclusions. 70The appellants seemed to submit that these answers were inconsistent with the fact that the 195-page 2006 report became a 231-page expert report. The appellants referred specifically to Attachment E to the expert report. It was contended that the prosecutor "settled" Attachment E in the absence of Mr Sunol and failed to specifically disclose inconsistencies that would have permitted the appellants to refute a central plank of the prosecution case and/or that had the capacity to discredit the credibility of the prosecution case. We assume the "central plank" was invoices identified in Attachment E that it was alleged that Mr Sunol failed to have regard to or was not aware of, in reaching conclusions about the inadequacy of the servicing of truck 28. 71There was no acceptance by Mr Sunol that he changed his opinions or his findings. Nevertheless, the appellants referred in particular to one example that it was submitted, exemplified why it was necessary that leave be granted to issue the summonses. The example involved the question of whether the truck Mr Smith was driving when he was killed (known as a Terex TA30 off-road dump truck T28) had run out of fuel and whether that was the cause of the vehicle's engine stopping as it proceeded down the haul road. In the sentencing proceedings, the prosecution had contended that the engine stopped because it ran out of fuel. The appellants had contended that at the time the truck went over the embankment it had sufficient fuel to keep the engine running. Backman J found the probable explanation for the engine stopping was that it had insufficient fuel left in the tank (see [169], [223]). 72The prosecution's submission that the truck ran out of fuel would appear to be based on Mr Sunol's opinion in his expert report. The appellants submitted that the Sunol 2006 report and the institution of the prosecutions were based on the fundamental proposition that Terex truck 28 ran out of diesel fuel. It was submitted this was a fundamentally flawed proposition and a case theory that was incapable of being proven beyond reasonable doubt. 73 We do not understand the fuel issue to be such a "fundamental proposition" that if it had not been propounded by the prosecution that the truck ran out of fuel, the appellants would have pleaded not guilty. It seems the appellants were always of the view that the truck did not run out of fuel and that is the position they took in the sentencing proceedings. If the fuel issue was the "fundamental proposition" the appellants suggest, one would have expected them to have pleaded not guilty. However, we note that the fact the engine stopped was not the only contributing factor to the accident. The condition of the steering accumulator, service brakes and park brake were also found to have contributed in the sentencing judgment. 74Mr Sunol's 2006 report indicated under the heading "Most likely sequence of events", his opinion that: 1. The initiating event being the diesel engine ran out of fuel while the truck was descending the haul road... 75The later expert report, on the other hand, under the same heading, stated: 1. The initiating event was that the engine of the truck stopped while it was descending the haul road... I have concluded that the engine on truck 28 most likely stopped because it ran out of diesel fuel. Notwithstanding this, I cannot discount that the engine may have stopped for another reason such as: a fault with the engine, an arcing of the wire to the emergency stop button... dirty or watery fuel, or other similar fault. The words underlined were added to the expert report. 76The appellant submitted that the change represented by the underlined words occurred because the prosecutor belatedly realised his case theory that the truck had run out of fuel was flawed and that this is demonstrated by the prosecutor's 12 November 2009 bill of costs that was in evidence admitting from source material as at 13 August 2008 "... investigations are continuing pursuant to recent conference and that as it was dark and raining at the scene no instructions can be provided as to the presence or otherwise of fuel at the time of the incident ..." 77The appellants submitted the prosecution should have impartially placed intelligibly before the court (Bar Rule 82) by making a concession in terms of the prosecutor's 13 August 2008 instructions or leading evidence from the Departmental personnel who, on 14 June 2005, were eye witnesses to the state of the truck and the presence of fuel or otherwise. It followed, it was submitted, that the prosecution did not help to ensure that the appellants had a fair trial or sentencing proceedings. It was further submitted: The defence case of the Appellants was that the truck did not run out of fuel and there was sufficient fuel in the truck at the time of the accident for safety equipment such as the retarder and steering to be operative. Without the whole of the relevant evidence being placed by the prosecution intelligibly before the court, much defence resources and court time were spent in the sentencing proceedings on this disputed or controversial fuel issue. This prosecutorial non-disclosure precluded the Appellants using this information in the cross-examination of Mr Sunol and making enquiries with the Departmental witnesses who were eye witnesses to what liquid was coming out of the truck on the night of the accident ... Instead, between on and about 25 August to 9 September 2008, shortly before the trial commenced, the prosecution's lawyers settled the substance of and altered Mr Sunol's report on this controversial matter. The prosecution offended the principles that "A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly." .... In particular, the prosecution acted unfairly by: (a) Deletion or tailoring of one of the main findings or theories of Mr Sunol and the prosecution that the truck ran out of diesel fuel while descending the haul road... (b) Inclusion of new fuel assertions by Mr Sunol in an attempt to cover the weakness identified on 13 August 2008 in the then 3-year old prosecution case theory... (c) Espousing a new case theory and tailoring a case accordingly that the engine might have also stopped because of dirty or watery fuel or arcing of a wire to the emergency stop button.... 78It appears that the prosecutor was unable to provide instructions to counsel as to whether or not fuel was present in the fuel tank on the night of 14 June 2005. However, there is no indication that the prosecutor, nevertheless, proceeded to formulate a case theory that the truck ran out of fuel not knowing whether that was the case or not. A reasonable explanation for the basis of the case theory is that the prosecutor relied on the opinion of Mr Sunol. We note from the sentencing judgment that Mr Sunol inspected the site of the accident on 15 and 17 June 2005 and looked specifically at the question of fuel in the fuel tank. He concluded inter alia, that: [F]uel did not drain out of the fuel tank through the filler cap during the incident. In my opinion a small spillage may have occurred, through the filler cap breather, during the period of time truck 28 travelled down the embankment assuming it rolled one or more times. The reason for my opinion is the fuel tank breather is in the fuel tank cap, as recorded in figure 115 below, and I observed the cap intact on 17 June 2005. And further, with regard to a quantity of fluid on the ground near the truck, he provided the following description in his report: Large accumulations of oil to the underside of the LHF of truck 28, underneath the transmission/front axle and underneath the hydraulic reservoir which was inverted. I note there was spillage absorption material placed around this area. What I assume was the breather for the hydraulic reservoir was also inverted and appeared to be leaking. The oil I observed was consistent in nature to hydraulic oil. The liquid I observed was not diesel fuel. 79Not knowing whether or not fuel was present in the fuel tank, the sole basis for the prosecutor's contention in the sentencing proceedings that the truck ran out of fuel was Mr Sunol's expert opinion in that respect; no other basis was put forward. One would expect if the prosecutor had evidence there was no fuel in the tank he would have relied on that evidence. As he did not, it would have been blindingly obvious to counsel for the appellants that the prosecutor did not have any direct evidence he could rely on as to whether the fuel tank was empty on the night of 14 June 2005 and, therefore, had to rely on expert opinion to deduce from what evidence was available that there was no fuel. We see nothing unfair in the prosecution in not providing further advice to the appellants that he did not have evidence as to whether fuel was present in the fuel tank or not on the night of 14 June 2005 when the appellants were in receipt of the full evidence sought to be relied upon by the prosecutor. 80The second part of what the appellants contended was that the change in the wording of the report was made to remedy a flaw in the prosecutor's case theory. The tenor of the appellants' submission was that the prosecutor and/or his lawyers may have suggested to or urged upon Mr Sunol or, indeed, settled the substance of and altered Mr Sunol's report without consulting him, to the effect that as the prosecutor's original case theory did not fit with the evidence, it was necessary to change the report. The result being that it was not Mr Sunol's expert opinion being expressed in the report, thereby rendering the report inadmissible. Accordingly, it was necessary for the documents called for in this regard to be produced so that the appellants' suspicions could be confirmed. 81But that is all they are: suspicions. A perfectly plausible explanation for the change is that Mr Sunol, upon reviewing the 2006 report and the evidence supporting it, decided to be less dogmatic and qualified his opinion about the truck running out of fuel. In the face of cross-examination and expert opinions expressed by the appellants' witnesses in the sentencing hearing, Mr Sunol successfully maintained, on the basis of his own investigations, that the reason why the engine stopped was that it probably ran out of fuel. 82The fact that the prosecutor was unable to provide instructions to counsel as to the presence or otherwise of fuel at the time of the incident does not mean that Mr Sunol was not in a position to express an opinion in that regard, given he had examined the issue. 83The appellants led the fuel example because it exemplified why documents and records relating to the compilation of the expert report should be produced. For the reasons we have explained, we do not consider the example satisfies the legitimate forensic purpose test. Nor do we consider it satisfies the 'on the cards' test. It also does not satisfy the requirement of s 12 of the CA Act because that provision would not permit the pursuit of discovery based on mere speculation. 84We note the appellants eschewed any suggestion of impropriety or wrongdoing on the part of counsel for the prosecutor, or the prosecutor himself. However, the proposition that one of the main findings or theories of Mr Sunol and the proposition that the truck ran out of diesel fuel while descending the haul road showed the report was "tailored", or there was "an attempt to cover the weakness identified on 13 August 2008 in the then 3-year old prosecution case theory", or "the prosecution's lawyers settled the substance of and altered Mr Sunol's report", seriously impugns the reputation and integrity of those against whom these allegations are made. 85If there was any reasonable indication the allegations had substance we would not hesitate to order issuing of the summonses. However, what the appellants have put lies in the realm of speculation and that is not sufficient to justify the Court allowing the appellants to pursue further the information they seek: see [83] above. 86As to the question of counsel for the prosecutor having input into the expert report, the respondent conceded that was so, but that it was entirely ethical. In the earlier proceedings regarding whether leave should be granted to the appellants to extend time to appeal, the respondent referred to an article published in the Summer 2012-2013 edition of the NSW Bar Association's 'Bar News' entitled 'Can Counsel settle expert Reports?'. Its authors, Garth Blake SC and Philippe Doyle Gray, concluded: It is our opinion, having regard to the totality of the material that we have reviewed, that it is both permissible, proper and appropriate that solicitors and counsel be involved in the settling of expert reports. Further, it is our opinion that the following principles state the current position in New South Wales on the question of counsel's role in settling expert evidence: (a) Counsel may and should identify and direct the expert witness to the real issues. (b) Counsel may and should suggest to the expert witness that an opinion does not address the real issues when counsel holds that view. (c) Counsel may and should, when counsel holds the view, suggest to the expert witness that an opinion does not adequately: (1) illuminate the reasoning leading to the opinion arrived at, or (2) distinguish between the assumed facts on which an opinion is based and the opinion itself, or (3) explain how the opinion proffered is one substantially based on his specialised knowledge. (d) Counsel may suggest to the witness that his opinion is either wrong or deficient in some way, with a view to the witness changing his opinion, provided that such suggestion stems from counsel's view after an analysis of the facts and law and is in furtherance of counsel's duty to the proper administration of justice, and not merely a desire to change an unfavourable opinion into a favourable opinion. (e) Counsel may alter the format of an expert report so as to make it comprehensible, legible, and so as to comply with UCPR 4.3 and 4.7. 87The authors arrived at their conclusions following an analysis of what they referred to as the "Whitehouse line of authority" and the "Federal line of authority". The Whitehouse line of authority was named after Whitehouse v Jordan [1980] 1 All ER 650 and Whitehouse v Jordan [1981] 1 WLR 246 and the cases that followed those authorities. In that respect, the authors referred to: Kelly v London Transport Executive [1982] 2 All ER 842; Vernon v Bosley (No 2) [1999] QB 18; Phosphate Co-operative Co of Australia Pty Ltd v Shears (No 3) (Pivot Case) [1989] VR 665; Collins Thomson Pty Ltd v Clayton [2002] NSWSC 366; FGT Custodians Pty Ltd v Fagenblat [2003] VSCA 33; Universal Music Australia Pty Ltd & Ors v Sharman License Holdings Pty Ltd & Ors [2005] FCA 1242; (2005) 220 ALR 1 (an authority relied upon by the appellants); Fortson Pty Ltd v Commonwealth Bank of Australia [2008] SASC 49; (2008) 100 SASR 162; Kulikovsky v Police [2010] SASC 58; Farley-Smith v Repatriation Commission [2010] AATA 637; and Secretary to the Department of Business and Innovation v Murdesk Investments [2011] VSC 581; (2011) 184 LGERA 288. 88The Federal line of authority referred to cases determined in Australia's federal jurisdiction, including Boland v Yates Property Corporation [1999] HCA 64; (1999) 167 ALR 575 per Callinan J at [276]-[277]; Harrington-Smith on behalf of the Wongatha People v Western Australia (No.7) [2003] FCA 893; (2003) 130 FCR 424; Jango v Northern Territory of Australia (No 2) [2004] FCA 1004; R v Doogan, Re; Ex parte Lucas-Smith [2005] ACTSC 74; (2005) 158 ACTR 1; and Risk v Northern Territory of Australia [2006] FCA 404. 89The authors suggested that what emerged from the Federal line of authority was: (a) For the legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is influenced by the exigencies of litigation or is not an honest opinion that he or she holds or is prepared to adopt: Boland, Harrington-Smith, Jango, R v Doogan, Risk. (b) Counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions: Boland, Harrington-Smith, Jango, R v Doogan, Risk. 90In their article at 65-66 the authors stated: In New South Wales, the Federal Line of authority should be preferred over the Whitehouse Line of authority for the following reasons: (a) The Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005 impose obligations on parties, solicitors and counsel that relate directly to the preparation and use of expert opinion evidence. Authorities pre-dating these obligations need to be reconsidered in light of the current legislative scheme. To the extent that authorities pre-dating the legislative scheme are now inconsistent or incompatible, then they should be disregarded as no longer stating the law. (b) The Evidence Act 1995 imposes restrictions on the admissibility and use of expert opinion evidence. The High Court has repeatedly expressed the importance of expert opinion evidence being tendered in a form that allows proper application of the Evidence Act 1995. In doing so, the High Court has directly addressed the question of the involvement of solicitors and counsel in the preparation and use of expert opinion evidence. That has not been subsequently distinguished or disapproved by the court. Authorities pre-dating the Evidence Act 1995 need to be reconsidered in light of the Evidence Act 1995 and its construction. To the extent that authorities pre-dating the Evidence Act 1995 are now inconsistent or incompatible, then they should be disregarded as no longer stating the law. (c) The Federal Line of authority is an internally consistent, cross-referenced and coherent body of legal reasoning, expressed after the introduction of the Evidence Act 1995, and at a time soon before or after the introduction of the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005. It takes into account, to some degree, competing views expressed in the Whitehouse Line of authority. The same cannot be said for the Whitehouse Line of authority, which does not even engage with the reasoning process underlying the Federal Line of authority. (d) There is no relevant and binding decision of either the New South Wales Court of Appeal or the Supreme Court. R v Doogan is a decision of an intermediate Court of Appeal. Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89; (2007) 236 ALR 209; (2007) 81 ALJR 1107 at [135]. Authorities pre-dating R v Doogan need to be reconsidered in light of that decision. To the extent that authorities pre-dating R v Doogan are now inconsistent or incompatible, then they should be disregarded as no longer stating the law. (e) The New South Wales Barristers' Rules are consistent with the Federal Line of authority but inconsistent with the Whitehouse Line of authority, at least to the extent that the rules draw no distinction between expert and lay witnesses. Authorities pre-dating these obligations need to be reconsidered in light of the current rules. To the extent that authorities pre-dating the rules are now inconsistent or incompatible, then they should be disregarded as no longer stating the law. (f) The Federal Line of authority is more consistent with views articulated in professional and academic literature than the Whitehouse Line of authority. (g) Lord Denning's reasoning in Whitehouse No.1 has been expressly disapproved, albeit in obita dicta. 91The authors' arguments are persuasive. In Boland, Callinan J stated at [278]-[279] (footnotes omitted): [278] In Kelly v London Transport Executive Lord Denning MR said that solicitors and counsel must not "settle" the evidence of medical experts as they did in Whitehouse v Jordan. In the latter case Lord Wilberforce said: "[E]xpert evidence presented to the court should be, and should be seen to be, the independent product of the expert, uninfluenced as to form or content by the exigencies of litigation." [279] What the Master of the Rolls categorically said in Kelly, in my opinion, goes too far. But in any event the passage from Whitehouse v Jordan quoted does not support as far-reaching a proposition as that propounded by Lord Denning. For the legal advisors to make suggestions is a quite different matter from seeking to have an expert witness give an opinion which is influenced by the exigencies of litigation or is not an honest opinion that he or she holds or is prepared to adopt. I do not doubt that counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method of valuation might be more likely to appeal to a tribunal or court, so long as no attempt is made to invite the expert to distort or misstate facts or give other than honest opinions. However it is the valuer who has to give the evidence and who must make the final decision as to the form that his or her valuation will take. It will be the valuer and not the legal advisors who is under oath in the witness box and bound to state his or her opinions honestly and the facts accurately. The lawyers are not a valuer's or indeed any experts' keepers. The Full Federal Court failed to recognise the different roles of the valuers and the appellants in this case and treated the appellants as if they were almost exclusively or exclusively the final arbiters of the way in which the property should be valued. And although the Full Federal Court held that the appellant solicitors were not entitled in this case to shelter behind the barristers and to delegate responsibility to them, it failed to look carefully at the different relationships involved. In a functionally divided profession as in New South Wales, the barristers do not engage the valuers. Nor for that matter do the solicitors necessarily do so. Here the respondent was actively and closely involved in these matters. There were times when the reasons of the Full Court implied, indeed even assumed that the lawyers especially the barristers were personally responsible for the engagement of the valuers and the valuers' opinions. Moreover it is not as if Branson J made any findings that the appellants overbore the valuers and Yates or insisted that the valuers adopt methods of valuation that were impermissible or inferior to some other method. For these reasons also the appeals to this Court would have to succeed. 92In Harrington-Smith, Lindgren J at [19]-[20] stated: 19 Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. In the same vein, it is not the law that admissibility is attracted by nothing more than the writing of a report in accordance with the conventions of an expert's particular field of scholarship. So long as the Court, in hearing and determining applications such as the present one, is bound by the rules of evidence, as the Parliament has stipulated in subs 82(1) of the NT Act, the requirements of s 79 (and of s 56 as to relevance) of the Evidence Act are determinative in relation to the admissibility of expert opinion evidence. [20] In order to establish the admissibility of evidence of expert opinion, it must be shown: (a) that the opinion is relevant (including that the field of knowledge is one in which expert opinion can properly be called (see Cross on Evidence (Australian edn) at [29050]) (Evidence Act ss 55, 56); (b) that the person put forward as an expert possesses specialised knowledge in that field (Evidence Act s79); (d) that the specialised knowledge is based on the person's training, study or experience (Evidence Act s 79); and (e) that the particular opinion tendered is based on the specialised knowledge (Evidence Act s 79). 93In Doogan it was stated at [117]-[119]: [117] Both Mr Tracey and Mr Glissan made submissions to the effect that neither Mr Roche nor Mr Cheney had proven to be objective and impartial experts, but rather advocates for particular views. Even in the absence of any interference by counsel in the preparation of reports, little weight may be attached to the evidence of an expert who has adopted an adversarial stance, if it is admitted at all: see Hardy v Your Tabs Pty Ltd (in liq) [2000] NSWCA 150 at [133] and Fox v Percy (2003) 214 CLR 118 at 167-168. In the present case, the adversarial stance adopted by Mr Roche and Mr Cheney had been "compounded" by the intervention of lawyers assisting the coroner who had edited at least some portions of their reports. [118] Expert reports obtained with a view to being tendered in legal proceedings must, of course, comply with the rules of evidence so far as they are applicable. Hence, as Lindgren J said in Harrington-Smith on behalf of the Wongatha People v State of Western Australia (No 7) [2003] FCA 893 at [19]: Lawyers should be involved in the writing of reports by experts: not, of course, in relation to the substance of the reports (in particular, in arriving at the opinions to be expressed); but in relation to their form, in order to ensure that the legal tests of admissibility are addressed. [119] Accordingly, the mere fact that some editing of the reports of Mr Roche and Mr Cheney occurred does not demonstrate any impropriety on the part of the lawyers in question or provide any valid ground for concern. It is true that the rules of evidence did not strictly bind the first respondent and that some latitude might have been permitted to statements in the reports that strayed to some extent beyond the bounds of admissibility. However, that consideration did not relieve those assisting the first respondent of their duty to ensure that the reports conveyed the author's opinions in a comprehensible manner, that the basis for those opinions was properly disclosed and that irrelevant matters were excluded. It has not been established that any of the lawyers assisting the first respondent sought to change passages in the reports conveying relevant opinions or information, so the prosecutors' complaints seem to have been based upon the editing of passages that were, at best, of marginal relevance. 94It does appear there is no binding decision of the Supreme Court of New South Wales, as the authors suggest, nor for that matter, the High Court as to the extent to which counsel may be involved in settling expert reports. Neither Wood nor Gilham (not referred to in the article) deal with the issue. So long as no attempt is made by legal advisors to invite the expert to distort or misstate facts or give other than honest opinions, counsel and solicitors have a proper role to perform in advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance: Boland. Legal advisors have a duty to ensure that an expert report conveys the author's opinions in a comprehensible manner, that the basis for those opinions was properly disclosed and that irrelevant matters were excluded: Doogan. Lawyers should be involved in the writing of reports by experts in relation to their form in order to ensure that the legal tests of admissibility are addressed: Harrington-Smith. 95It follows, in our opinion, that contrary to the appellants' submission there is no bar to counsel settling expert reports by "advising or suggesting, not only which legal principles apply, but also that a different form of expression might appropriately or more accurately state the propositions that the expert would advance, and which particular method might be more likely to appeal to a tribunal or court". What is not permitted is distortion of "the substance of the witness's opinion so that it loses its essential character as an independent report unaffected as to form or content by the exigencies of litigation": Cross on Evidence, 9th edition, 2012 at [29080]. 96There may have been additions or deletions to the 2006 report, but that is not objectionable if there was no attempt made to invite Mr Sunol to "distort or misstate facts or give other than honest opinions". In the face of Mr Sunol's denial that he was not asked to change his opinions and did not change his opinions or findings - or as Mr Sunol put it: "the intent of the outcome" - it is not evident to us that any basis exists for granting leave to issue the draft summonses in respect of paragraphs [15] - [18], [20] - [26], [28], [31] - [33], [36] and [42]. 97We are strengthened in our view that no such basis exists by the fact that counsel for the appellants in the initial trial proceedings, and in the sentencing proceedings, were in possession of both the 2006 report and the 2008 expert report. Regardless of the fact the changes to the 2006 report were not marked, even a casual perusal of the two reports would have identified that changes had been made. Counsel had ample opportunity to challenge Mr Sunol about any differences in the two reports. That was not done.

Prosecution settled exhibits contrary to Mr Sunol's tendered report 98The appellants next submitted that paragraphs [27], [29] and [34] of the draft summonses should be ordered on the basis there were legitimate forensic purposes in establishing who in the prosecution team settled certain exhibits. 99The appellants submitted prosecution exhibit 1 in the sentencing proceedings included a copy of the invoice of Mr Boyd Taylor (the mechanic engaged by Hunter Quarries to undertake maintenance on the Terex trucks), covering all of the work performed on the three days of 16 - 18 May 2005, including on 18 May 2005, the 2000 hour service item of bleeding the brakes on truck 28. It is 'on the cards', it was submitted, that disclosure will materially assist the appellants. Further, that: The 2008 Sunol reports were based on the false premise that Mr Boyd Taylor never undertook the 2000 hour service item of bleeding the brakes.... The truth is that this work was performed on 24 April 2004 (but it was not referred to by Mr Sunol) and again on 18 May 2005 work (conceded in cross-examination in 2012 by Mr Sunol that he had not considered or read or referred to this invoice). Not only will the disclosures refute a central plank of the prosecution case that only 250 hour services were performed, it will have the capacity to discredit, perhaps explosively so, the credibility of the prosecution case, for the strength of that case was heavily dependent on the reliability of Mr Sunol. 100It was further submitted: It will assist in establishing that there has been a miscarriage of justice because of the prosecutor's failure to act fairly... How can a prosecutor acting fairly tender the 16 - 18 May 2005 invoice in exhibit 1, not advise the Court that the 24 April 2004 and 16 - 18 May 2005 invoices of the mechanic were inconsistent with opinions or findings in Mr Sunol's report and not disclose that Mr Sunol had never considered or read or referred to these two invoices? 101In his 2008 expert report, Mr Sunol stated: In my review of the maintenance cards for truck 28, I noticed they only indicate 250 services being carried out. I did not see any 500 or 1,000 hour servicing. I assume I have been provided with all relevant records for truck 28 and truck 27 being the Maintenance and Operational Records at 7.4 and Attachment E at 6.6. 102As we have noted, the appellants complained that Mr Sunol's expert report did not consider many of Mr Taylor's invoices. If he had, it was submitted, it would have shown that contrary to the prosecutor's case based on Mr Sunol's expert report that Mr Taylor did undertake the task of "bleeding the brakes" on 24 April 2004 and 18 May 2005, which was a 2,000-hour task. 103The difficulty with the appellants' position is that the invoices about which they complain were documents within the appellants' own possession; they were the appellants' own business records. Furthermore, whilst the invoices for maintenance records for truck 28 were not all included in Mr Sunol's report, they were either: (i) provided to the appellants' former solicitors on 28 September 2008 under cover of a letter from the Crown Solicitor's Office in which it was noted that the invoices and other documents provided at the time were the appellants' own documents; or (ii) provided to the appellants in Exhibit 1 shortly before the trial commenced. Whichever was the case, the prosecution provided the invoices to the appellants prior to any amendments being made to the charges and prior to the entry of the guilty pleas. 104Furthermore, if the appellants believed they could cast doubt on the prosecutor's submission concerning the frequency and nature of services conducted on truck 28, they were free and able to contest the matter at the sentencing hearing. But they did not do that and the very failure of which they accuse the prosecutor, they were guilty of themselves. The appellants did not make use of the invoices that were their own documents by challenging or declining to agree to the proposition that was to find its way into the Agreed Facts, namely, "that the last four services on the T28 were all 250 hour services" (the invoice dated 30 May 2005 was in relation to "Bleed brakes" - purportedly a 2,000 service - performed on 18 May 2005. The accident occurred on 14 June 2005). 105In any event, critical to Backman J's consideration regarding culpability was the agreed fact that "when Mr Taylor performed the last 250 hour service on the truck a week before the accident, the following defects should have been identified: (a) the failure of the seal in the front brake converter/intensifier. That would have been identified by monitoring loss of brake fluid and cleaning the converter/intensifier, as was required by the manufacturer's maintenance chart; (b) the losses of air pressure in the air circuit. These would have been identified by turning the engine off, checking for loss of pressure, and testing the function of the retarder valve; (c) the loss of gas pressure in the steering accumulator. That would have been identified by carrying out a steering shutdown test or measuring the gas pressure in accordance with the maintenance manual; (d) the broken warning light on the steering circuit. That would have been identified by checking the operation of the warning systems; (e) the loss of service brake performance. That would have been identified by carrying out a brake test in accordance with the manual; (f) the oil leak from the right-hand wheel axle. That would have been identified by visual inspection and checking the brake pads in accordance with the 250 hour service in the manual; (g) the park brake being out of adjustment. That would have been identified by visual inspection or routine adjustment of the brake in accordance with the manual or by testing for efficiency in the manner described in the relevant Operation's Manual." 106The appellants did not seek to impugn the agreed facts. So regardless of the issue of the interval between servicing, it was an agreed fact that the last service on truck 28 failed to identify significant defects. Combined with Mr Badior's evidence, it was clearly open to her Honour to find "that the defendants knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements, prior to the accident." 107Mr Badior's evidence regarding the maintenance records was addressed by Backman J at [218]-[221]: [218] In oral evidence, Mr Badior said that he gave Mr Taylor the maintenance manual for the Terex trucks. The maintenance manual under the heading "Miscellaneous Servicing" directed that a service was to be carried out on the trucks monthly, or every 250 hours. The manual also set out what checks had to be done at those times. The manual also directed that a service was to be carried out every six months, or every 1000 hours on various component parts of the truck. An annual service, or 2000 hours, was also to be carried out of other component parts of the truck listed or itemised, in the manual. Mr Taylor's maintenance cards revealed that between the period 3 March 2004 until 8 June 2005, Mr Taylor only performed four 250-hour services on the truck involved in the accident, and no 1000 or 2000-hour services were performed. Between the period 3 May 2004 and 3 June 2005, Mr Taylor only performed four 250-hour services on truck No 27. Again, no 1000 or 2000-hour services were performed. Moreover, the cards revealed that the 250-hour services were done about 400 hours apart. [219] Mr Badior, in cross-examination, was asked whether he knew that Mr Taylor was only doing 250-hour services. Mr Badior replied that he, "had an inkling". The response does not sit comfortably with Mr Badior's affidavit evidence in which he said that every Monday morning he read the maintenance cards completed by Mr Taylor. Mr Badior was cross-examined about this particular matter. His attention was directed to the maintenance cards completed by Mr Taylor for the truck involved in the accident. The following exchange occurred: Q. You will see there on the 15th of the fourth, we may take to be 04, that there was a service which involved changing some filters, addition 40 litres of oil, correct? Replacing caps, claimed water leak and tightening fan belts. Correct? A. Correct. Q. This was basic service, wasn't it? A. Yes. Q. The next one is recorded on the 9th of the seventh and it would look to nearly 500 hours later. Am I reading that correctly, 6259 hours for the 15th of the fourth, 6710 for the ninth of the seventh, not quite 500, 400-odd hours. Is that right? A. That is right. Q. It would seem that, well you can read for yourself what was done there. In fact, you were present when I took Mr Taylor through this, were you not? A. I was, yes. Q. And there is over the page 196 in the bottom right-hand corner, 250-hour service for the sixth of the 10th, 7132, again another 300, 400-odd hours, yes, 422 hours later. Is that right? A. Yes. Q. You see, if you were getting these documents over time, as you say in paragraph 99, presumably you could see these things for yourself as we see them now. What did you do about it? Was that a satisfactory situation as far as you were concerned? A. After reviewing this work, the sheets, after the incident it certainly was not satisfactory, no. Q. But you see then how did you come to be telling the court, paragraph 99, that, "On Monday after servicing I would read the maintenance cards and his bill itemising the servicing". Does that mean that you were reading it without noticing the very things that I am pointing out to you now or does it mean that you made a mental note that you need to do something about it? Was it satisfactory so far as you were concerned? A. It certainly was not satisfactory. [220] Mr Badior also gave evidence that he had looked at the maintenance requirements set out in the Terex maintenance manuals. He also said that he looked at the material at the end of the manual to ascertain what was required in terms of servicing the trucks and printed off the information. [221] It follows from Mr Badior's evidence that he must have been aware that maintenance of the truck was not being done in accordance with the maintenance manual and did not take steps to remedy that position. Mr Badior agreed during cross-examination that he was responsible for the service systems as they existed at the quarry. I find, therefore, beyond reasonable doubt, that the defendants knew that Mr Taylor was not doing maintenance in accordance with the truck maintenance guidelines and requirements, prior to the accident. 108Other references in her Honour's judgment to Mr Badior's evidence were as follows: [239] Mr Badior engaged the services of Mr Taylor. He knew that Mr Taylor lacked expertise or experience relevant to the servicing of the Terex off-road dump trucks. He also knew that Mr Taylor was not following the servicing schedules set out in the Terex maintenance manuals. The maintenance cards filled in by Mr Taylor, which Mr Badior said he checked every Monday morning, showed that required servicing was not being conducted and that 250 hour servicing was being done about 400 hours apart. [241] One particular aspect of the failure to ensure an adequate maintenance system was in respect of the brakes. Mr Taylor gave evidence that Mr Badior knew he was not checking the brake pads at every service because Mr Badior knew that could only be done by removing the wheels. Mr Badior conceded that he knew Mr Taylor did not have the capacity to remove the wheels to inspect the brakes himself. The Terex maintenance manual required service brake pads to be checked at a 250 hour service. Mr Badior was aware of those requirements (for reasons earlier stated). Mr Badior was therefore aware that Mr Taylor was not checking the brake pads as part of the 250 hour service. He could only do the service when an outside firm was brought in to assist in removing the wheels. [243] The defendants' culpability in respect of the maintenance system may be summarised as follows: ... c. the defendants knew from maintenance records that the required servicing was not being conducted and that 250 hour services were being done about 400 hours apart; d. the defendants knew, or should have known, that Mr Taylor was not checking the service brakes because either he told them he was not or because they knew that he could only do so when an outside specialist was called in to remove the wheel and they knew that was not occurring; e. the defendants created a maintenance system which relied on Mr Taylor being instructed as to what to do, rather than one that scheduled automatic servicing based on engine hours (as adopted earlier with AMMESA and since with Westrac); 109In our view, it is not 'on the cards' that the information sought in paragraphs [27], [29] and [34] of the draft summonses would materially assist the case for the appellants on appeal.

Undisclosed concerns or discrepancies 110The appellants submitted paragraphs [19] and [26(c)] of the draft summonses should be ordered to be produced. Paragraph [19] seeks: Any document or record in relation to the content and/or detail of the CSO letter on or about 3 September 2008 to T Flowers of Prosecutor's Office, including but not limited to advising of discussions with junior and senior counsel as to concerns regarding Peter Sunol. 111The call in paragraph [19] is based on an entry in the "Prosecutor's Bill of Costs pursuant to Order of the Court made 12 November 2009". The entry reads: Letter to T Flowers of Prosecutor's Office advising of discussions with junior and senior counsel as to concerns regarding Peter Sunol, mechanical engineer, under cross examination and Mr Lewis's performance in Court.... 112Paragraph [26(c)] seeks: Any document or record in relation to the content and/or detail of on or about 17 September 2008: ... (c) The "... matter raised by Mr Sunol in relation to invoices for costs such as hose replacements for truck and whether they should be attachments and that he was advised to bring them to conference even though they are not referred to in his report ..."; and/or ... 113The call in paragraph [26(c)] is based on entries in the "Prosecutor's Bill of Costs pursuant to Order of the Court made 12 November 2009". The entries read: Attending Peter Sunol, mechanical engineer, on the telephone re report, conference and possible further annexures... Letter to junior counsel re matter raised by Mr Sunol in relation to invoices for costs such as hose replacements for truck and whether they should be attachments and that he was advised to bring them to conference even though they are not referred to in his report... 114Because it is mentioned in a Bill of Costs that there may have been some concern by counsel about the performance of prosecution witnesses in the witness box, the appellants want access to the terms of that concern in order that they might conduct the appeal. There is not the slightest indication of what those concerns might have been or how the information might assist the appellants' case. In our view the call in paragraph [19] is a classic fishing expedition. 115From what we could piece together from the somewhat cryptic and unsatisfactory submissions in relation to paragraph [26(c)], the appellants' position appeared to be that: (a) the expert report was dated 10 September 2008 (signed on 19 September 2008 and forwarded to the appellants on 24 September 2008); (b) Mr Sunol was on leave for a period, including 10 September, on a skiing holiday; (c) the expert report was completed before the prosecutor compiled the invoice parts of Attachment E. The compilation exercise that apparently finished on 24 September 2008 occurred largely in the absence of Mr Sunol who was on a skiing holiday. This is evident from the entry in the Bill of Costs recording the letter of 17 September 2008, which appears to indicate that Mr Sunol only raised the question of the invoices and whether they should be attached to his report on his return from leave and after the expert report had been completed; (d) the expert report stated, "I have reviewed documents that I understand were supplied by Karuah Quarry, being those at 7.4 and at Attachment E at 6.6 ("the Maintenance and Operational Records"). I have been asked to assume they are all the relevant records that existed. 116The appellants contended that in light of the undisclosed communication referred to in paragraph [26(c)], Mr Sunol could not have reviewed the invoices for work such as hose replacements, despite the CSO saying in the letter of 10 September 2010, "The complete records used by Mr Sunol will be forwarded to you following his return from leave". The appellants contended the documents are relevant to the question of Mr Sunol's credibility and that they were misled "by the prosecution by making false, untrue statements." It was submitted the documents or records sought were no less cogent than the letter of comfort in Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593 or the "investigator's note" in Aouad. 117The issue in Grey was whether a criminal trial miscarried because the accused was not provided with a copy of a letter of comfort which had been given by an investigating police officer to a person who had had an involvement in the events giving rise to the charges against the appellant and was a key prosecution witness against him at his trial. We earlier summarised the relevant facts in Aouad. 118The appellants' complaint is not clear. It appears to be that Mr Sunol said in his expert report he had reviewed maintenance and operational records when, in fact, he could not have reviewed hose replacement invoices because at the time the expert report was finalised, the invoices were not part of the report. However, we note the Bill of Costs entry refers to Mr Sunol raising with the prosecution's lawyers on or about 17 September 2010, whether hose replacement invoices should be attachments and that he was advised to bring them to conference (even though they were not referred to in his report). This would suggest that as at 10 September 2008 not only had Mr Sunol not referred to the invoices in his report, but also he had not attached the invoices to his report. Hence our confusion about the nature of the appellants' complaint. The fact that the invoices were subsequently attached to the report as part of Attachment E, without reference to them in the report, would appear to be neither here nor there. 119Assuming, however, the complaint is as we have stated it in the immediately preceding paragraph, it does not necessarily follow that because the relevant invoices were attached to the expert report subsequent to the date of the report that Mr Sunol had not reviewed the invoices. It may well have been the case that Mr Sunol had reviewed the invoices, but had neglected to initially include them as part of the expert report. He subsequently raised with the prosecution's lawyers whether the invoices should be attachments to his reports and that was what was done. 120The fact that Mr Sunol asked whether the invoices should be attached to his expert report suggests there was no intention on his part to mislead. And given the lack of clarity with which the appellants put this issue, the unequivocal submission that the prosecution misled them by making false and untrue statements is insupportable. Moreover, to equate this issue with the circumstances in Grey and Aouad is an exaggeration and also insupportable. 121We are not satisfied the appellants have made out their case regarding legitimate forensic purpose in respect of paragraph [26(c)]. Furthermore, given the obscure nature of this contention we are not satisfied it is "necessary or expedient in the interests of justice" to grant leave to issue the summonses in this respect.

Mr Sunol and prosecution's opening 122The appellants submitted paragraphs [38]-[41] of the draft summonses should be ordered on the basis that Mr Sunol was provided with a copy of the draft prosecutor's opening and was asked to comment. Paragraph [38] states: Letter from junior counsel perused by the CSO on or about 1 October 2008 requesting that Mr Sunol, mechanical engineer, review draft opening submissions with a view to providing comments re the factual matters that are within his expertise. 123The inference sought to be drawn by the appellants is that because it was not disclosed Mr Sunol may have reviewed the prosecutor's draft opening submissions that demonstrated a lack of independence on Mr Sunol's part and his report should be given no, or minimal, weight. Reference was made to Pan Pharmaceuticals Ltd (in liq) v Selim [2008] FCA 416 at [147]-[157] and Wood at [730]. 124In Wood it was held at [758]: A/Prof Cross took upon himself the role of investigator and became an active participant in attempting to prove that the applicant had committed murder. Rather than remaining impartial to the outcome and offering his independent expertise to assist the Court he formed the view from speaking with some police and Mr Byrne and from his own assessment of the circumstances that the applicant was guilty and it was his task to assist in proving his guilt. 125In Selim, Emmet J held that an expert report prepared by a Dr Clark for Liquidators should not be admitted. In considering the question of Dr Clark's independence his Honour observed at [147]: [147] Dr Clark has had a long involvement with the claims by the Liquidators. On 22 July 2003, well before the proceeding was commenced, the Liquidators' solicitors wrote to Dr Clark in connection with their investigation of a potential claim against Mr Selim. Dr Clark agreed to assess the conduct of Mr Selim and to provide a report to the Liquidator. Between August 2003 and November 2003 Dr Clark: · reviewed or considered information concerning Pan, including an outline of assumed facts, provided to him by the Liquidators' solicitors; · provided advice to the Liquidators' solicitors on the matters raised with him, including a draft opinion; · suggested questions for investigation relevant to the potential claim against Mr Selim; · provided the Liquidators' solicitors with the names of individuals with expertise in compliance with the Code. And at [154]-[155]: [154] Between August 2003 and May 2005, Dr Clark played the role of advising the Liquidators' solicitors on matters relevant to the claim, suggesting questions for further investigation and assisting in the drafting of the original statement of claim and responses to requests for particulars of the statement of claim. The drafts prepared by Dr Clark have been the subject of a claim for privilege by the Liquidators, such that the extent of his involvement is not capable of being fully tested. That is significant in circumstances where Dr Clark accepted that he relied on earlier draft reports prepared by him in preparing the Clark Report, which the Liquidators now seek to tender. [155] Dr Clark says that he recognises that his primary duty is to the Court and to provide independent evidence such that no matters of significance that he regards as relevant have been withheld from the Court. On the other hand, he declines to reveal in his affidavit or give evidence as to the substance of the numerous prior communications that he has had with the Liquidators' solicitors in helping them to formulate their case against Mr Selim. It is well nigh impossible to test his credibility or reliability in circumstances where his role in the formulation of the case against Mr Selim is substantially unknown. 126We can see nothing objectionable about an expert reviewing a submission in relation to factual matters that are within the person's expertise. Whilst there may be submissions put by the appellants on the appeal on other bases regarding Mr Sunol's independence, the submission that Mr Sunol was in the same position as A/Prof Cross in Wood or Dr Clark in Selim because he reviewed a draft submission for the purpose of providing comment on matters within his expertise was, with respect, an overstatement and not helpful. 127We do not propose to order production of paragraphs [38]-[41] of the draft summonses.

Prosecutor's braking system expert Mr Lewis 128The appellants seek production of paragraphs [43]-[58] of the draft summonses. Paragraphs [43]-[45] refer to documents relating to Mr Lewis' awareness of the expert witness code and reformatting of a report prepared by Mr Lewis to comply with the code. We have already dealt with the question of compliance with the code. Mr Lewis had prepared an earlier report and was required to review that report so that it complied with the code. As we earlier held, there could be no objection to the admissibility of Mr Lewis' latter report on the grounds that he had not read or understood the code in preparing his initial report. The findings we made regarding Mr Sunol in this respect apply equally to Mr Lewis. 129Paragraphs [46]-[58] refer to documents relating to the content of Mr Lewis' reports, amendments to the reports, the review of the reports by counsel and discussions between Mr Lewis and counsel regarding the reports. We dealt earlier with the general issue of counsel's involvement in reviewing expert reports. 130As to the particular issues raised by the appellants regarding Mr Lewis and his report, he was the engineering manager for the company, Australian Brake Controls Pty Limited, ("ABC"), where the retarder valve was tested. The retarder valve was referred to in the judgment of Backman J. Her Honour found at [222(7)] that "[t]he pre-existing leak on the retarder valve would have caused a further reduction in air pressure and a resultant loss of braking performance of the truck." Her Honour arrived at this conclusion based on the Agreed Facts, the opinions of Mr Sunol expressed in his expert report and the evidence of Mr Lewis. 131Mr Lewis tested the retarder valve on 24 February 2006 in the presence of Mr Sunol. In the earlier version of the report that was eventually tendered in the proceedings, Mr Lewis had said: While the function of the spool appears to be normal, the amount of compressed air that is wasted during its operation could hinder the operation of the air brake system. 132In his expert report eventually tendered in the proceedings, Mr Lewis stated: In my opinion based on my testing and observation of this component, while the function of the spool appeared to be normal, the amount of compressed air that was wasted during its operation could hinder the operation of the air brake system. Although I do not have specific experience of valve spools and do not have specific knowledge of their function I am able to bring my mechanical knowledge and experience to their operation and am of the opinion following my testing and observation that air was being wasted and hindered its function. 133Following their obtaining in 2012 of Mr Lewis' earlier draft, the appellants said they discovered that counsel for the prosecutor had required amendments to the draft. Mr Lewis was cross-examined about these matters in the Chevalley/Grugeon proceedings on 24 July 2012. Mr Lewis stated in answer to a question: The valve was given to me to check a function because our test gear could check it and I did say to Mr Sunol I know nothing about this particular piece of equipment. 134The appellants complained that the prosecutor did not identify or disclose that Mr Lewis had made the foregoing statement to Mr Sunol. The appellants also submitted that the involvement of the prosecutor led to a report being tendered that did not satisfy admissibility requirements for expert evidence because Mr Lewis knew nothing about the retarder valve. 135There was no evidence or any other indication to suggest that counsel required Mr Lewis to change his draft in the manner that occurred. Mr Lewis said in his cross-examination on 24 July 2012, that he did not remember why he made the change and did not remember if anyone asked him to "put something additional in", but that "I may have discussed this with my boss and he possibly said you haven't covered your backside with this you better make a disclaimer". 136Mr Lewis said in his cross-examination that he did not accept that the statement in his tendered report was outside his area of expertise and when one considers the statement it is clear that Mr Lewis accepted he did not have specific experience of valve spools and did not have specific knowledge of their function. However, in applying his mechanical knowledge and experience in brake mechanics (apparently not contested) to the operation of the component, he was of the opinion, following his testing and observation, that air was being wasted and hindered the function of the component. 137In those circumstances, we do not believe it is on the cards that the information the appellants seek would materially assist their case on appeal. What is more, it seems to us that even if we granted leave to issues the summonses in respect of paragraphs [46]-[58] and that led to a contrary finding regarding the effect of the leak in the retarder valve, it would make no measurable difference to the outcome given that, in addition to finding that the air leak would have caused a resultant loss of braking performance of the truck, Backman J also found (as summarised at [222]), that: (4) The presence of the oil mixture on the right-hand centre brake precluded it from functioning effectively; (5) The level of brake fluid in the front brake reservoir was very low in that it was at least as low as the centre discharge pipe as a result of an internal leak through it, and this low fluid level operated to render the two front brakes effectively inoperable; (6) There was a pre-existing air leak on the front brake air circuit from a split in the air hose which affected the pressure in the main air reservoir. (7)... (8) The extent to which the park brake was out of adjustment would have removed the capacity of the park brake to hold stationary the loaded truck on the haul road and would have provided no braking force in the event of an emergency. (9) Because of equipment defects at the time of the accident, only three of the disc brakes were working to their design capacity and the performance of those three brakes was reduced due to the air leaks in the braking system. (10) On the day of the accident, had the engine failed for any reason while descending, the air compressor would have ceased to operate, the retarder would have disengaged, and within a very short period the air pressure in the braking system would have dropped to a point where the brakes could not bring the truck to a halt.

The reports of Mr Ainslie, Mr Franklin and Mr Johnson 138Mr Ainslie was a senior manager with Gough & Gilmour Pty Ltd. He examined truck 28 after the accident and provided an expert report. Mr Ainslie's findings were referred to by Backman J at [24] and [25] of her judgment: [24]...Mr Ainslie's examination revealed that at the time of the accident on 14 June 2005, the truck had a number of equipment failures which affected the ability of the service and emergency brakes to stop the truck. These included a pre-existing oil leak on the right-hand centre wheel axle bearing that permitted contamination by a build-up of oil on the wheel rim, brake pads, the brake calliper and the brake disc. According to Mr Ainslie the oil leak caused a reduction in the coefficient of friction between the brake pad and brake disc, causing a loss of braking performance on that wheel. [25] The consequences of the pre-existing air leak were that if the air compressor failed or ceased to operate (for example, when the engine stopped) the air available for emergency operation would be less than should be available, and fewer applications of the brakes (both by the driver and by the application of the automatic emergency brake function) would be permitted after the air supply input ceased. 139Mr Franklin was principal consultant for KRC Mining Consultants. He also provided an expert report for the prosecution. His findings were referred to by Backman J at [58] and [59] of her judgment: [58] According to a report prepared by Steve Franklin... none of the berms on the haul road met the minimum standard set out in the Guidelines for Safe Mining which he said recommends a minimum height for berms of half a haul truck wheel height on exposed haul road edges (a height of 0.85 metres). Mr Franklin visited the quarry on 23 June 2005 for the purposes of preparing his report. During the visit he walked the operating haul roads and benches in order to inspect the haul road on which the accident occurred and to review the operating benches and other haul roads in the vicinity to gain an understanding of operating practices at the site. In particular he reviewed a document which purportedly sets out cross sections of the haul road on which the accident occurred. Mr Franklin in his report also prepared a graph of the berms and their respective heights at various chainage points along the haul road. From that graph he concluded (based on a standard berm height of 0.85 metres) that none of the berms reviewed met minimum standards. [59] Neither the contents of the graph nor the information on which those contents were based were the subject of challenge. Mr Franklin was not required for cross-examination. It is therefore open to the Court to accept Mr Franklin's conclusion on the issue. Based on this material I find beyond reasonable doubt that at the time of the accident the majority of the berms on the haul road were not at or above the recommended height as set out in the Guidelines for Safe Mining (which is in the same terms as appears in the Handbook). 140There is no reference in the judgment of Backman J to Mr Johnson, although we understand he was an expert mechanical engineer who provided a report to the prosecutor. 141The documents sought by the appellants in relation to Mr Ainslie, Mr Franklin and Mr Johnson at paragraphs [59]-[90] of the draft summonses relate to their awareness of the expert witness code, reformatting of reports, amendments to reports, counsel's involvement in preparing and/or reviewing the reports, and discussions between the three experts and counsel. 142We have dealt with these issues earlier in our judgment and there is nothing more to add. We will decline to grant leave in respect of paragraphs [59]-[90] in the schedule to the draft summonses.

Summonses to produce (order 4) 143This order seeks compliance by the prosecution with the law of the State of NSW in respect of prosecutorial disclosure. It was submitted for the appellants that the prosecutor's past and continuing conduct of not disclosing supports the order sought. Counsel submitted: There is more than a hint of the existence of further relevant information being withheld; there are documents or records that it has been admitted since 31 January 2013 are still "Not disclosed".... There is evidence of unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information. There is evidence to suggest that it will continue in this case and there is a continuing failure of the prosecutor to discharge disclosure obligations... The Court should not accept that proper disclosure has been and will continue to be made.... 144As we earlier observed, the prosecutorial duty of disclosure does not require an indiscriminate and wholesale delivery to a defendant of every document produced or obtained by the prosecutor in the course of conducting a prosecution. 145Moreover, we are yet to see any evidence of "unfairness brought about by the past default and impropriety on the part of the prosecuting authorities by withholding information" in these matters. Order 4 is no more than a fishing expedition and the order is refused.

Summonses to produce (order 5) 146The appellants explained that the leave sought under this order was also intended to release two of Hunter Quarries' directors from any implied undertakings that apply to documents or records produced in the Chevalley/Grugeon proceedings, for example, the Sunol disk. 147The respondent has consented to Order 5. Accordingly, we propose to grant leave.

Oppression 148One of the grounds relied upon by the respondent in opposing Orders 1, 2, 3 and 5 of the notice of motion was that the draft summonses were oppressive. Reliance was placed on the affidavit of Marina Rizzo. Ms Rizzo deposed, inter alia: Complying with the draft Summons to Produce addressed to the CSO will require an extensive search of the database of the CSO's electronic and hard copy records. These searches would require at least one senior solicitor, a junior solicitor and a paralegal to peruse numerous files and electronic data to ascertain whether there are documents which fall within the description requested. Aside from documents contained on the electronic systems there are approximately 60 hard copy files to consider and peruse. Accessing the electronic systems to determine if material responds to the Summons to Produce and is retrievable is a substantial task, that will involve the restoration of archived data from back-ups and will require the skills of in-house IT staff. The documents sought date back to August 2008. Once material, if it exists, is located, it will need to be collated and copied. This material will then need to be examined to determine whether any of it is subject to client legal privilege. ... It is difficult to provide an accurate estimate of the time it will take to answer the Summonses to Produce. However, I estimate that if I and other staff from the CSO as well as the Principal Legal Officer, Litigation of the Department were required to comply with the draft Summonses to Produce, I am of the opinion that searching, collating, and copying material would take at least ten days (7 hours per day) and involve considerable expense involving professional and administrative fees in excess of $50,000.00. This estimate is based on the need to utilise the services of the Principal legal officer and Senior Inspector from the Department and senior and junior solicitors as well as paralegals from the CSO to perform the various tasks. It is also likely that it may be necessary to obtain counsel's advice in relation to any privilege claims that may arise. 149The appellants rejected the submission that the draft summonses were oppressive and sought to cross-examine Ms Rizzo. The application to cross-examine was declined. In light of our findings regarding the material sought in the draft summonses it is unnecessary to deal with the question of oppression.

Orders and directions 150The Full Bench makes the following orders in respect to the notice of motion filed by the appellants on 2 August 2013: 1) The appellants' notice of motion is refused save and except for: (a) paragraphs [3]-[14] in Attachments A and C to the notice of motion in respect of which leave is granted to issue the summonses; and (b) order 5, in respect of which leave is granted. 2) Costs are reserved. 151The applications for leave to appeal and appeal are listed for directions before Walton J, Vice-President at 9.30 am on Tuesday 10 December 2013.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 March 2014