Objection is taken to the prosecutor calling evidence from Peter Wells, the property and asset manager of the premises where the incident occurred. The issue has been raised at this time so that the defendants can understand the issues that need to be addressed in the hearing, particularly the cross-examination of witnesses to be called by the prosecution. The trial commenced on Monday 28 November 2016 with an estimate of 5 days.
These proceedings are a prosecution for an offence contrary to section 32 of the Work Health and Safety Act 2011 (the Act). On 14 March 2014 Dwayne Gumbleton an employee of Hanna Plumbing Pty Limited (Hanna Plumbing) suffered an electric shock while working in the roof space of the administration area of an aged care facility known as Kularoo Aged Care Facility at Forster (the premises) operated by Baptist Care Services Pty Limited (BaptistCare). Unity (NSW) Pty Limited (Unity) was the head contractor at the premises for the building work that was being undertaken. Activate Fire Australia Pty Limited (Activate Fire) entered into an agreement with Unity to design and provide a fire sprinkler system (the system) to the premises. Activate Fire later sub-contracted the installation of the system at the premises to Hanna Plumbing.
The defendants were first put on notice that an employee of BaptistCare would be called at about 4.20pm on Wednesday 23 November 2016, when the prosecutor referred to such a witness as an addition to its witness list.
At about 12.45pm on the second day of the trial, 29/11/16, the prosecutor served a "proof of evidence" from Mr Wells (the proof). As I understand the position, Mr Wells has been interviewed by the prosecutor and the proof was produced after that interview. Mr Wells has not yet had the opportunity to adopt the content of the proof.
The proceedings were commenced by Summons filed on or about 14 March 2016. The prosecutor was required by the District Court Criminal Practice Note No 10 to serve the brief of evidence on the defendants within 14 days of the service of a Notice of Appearance. I have proceeded on the assumption that the brief of evidence had been served on both defendants before July 2016 when the proceedings were listed for hearing before me.
The evidence sought to be led from Mr Wells goes to the issue of whether or not it was reasonably practicable to isolate the power to the administration wing before commencing the work in the roof space of that building: particular 7(c) in the Summons. The prosecutor bears the onus of proving beyond reasonable doubt that the defendants breached their health and safety duty by failing to take that step.
The proof outlines that Mr Wells was the on-site representative of BaptistCare at the premises where building works were being undertaken and the incident occurred. Mr Wells was on-site 1-2 days per week and had direct dealings with Mr David Gurtner, the site foreman and Mr Peter Gurtner of Unity. In about mid-October 2013 Mr Wells was present at a meeting prior to the commencement of the work with a representative of Activate Fire, but he does not state who that person was. During the course of the work Mr Wells attended fortnightly meetings with representative of Unity and other contractors. During the course of the project Mr Wells received 3 requests from Mr David Gurtner to temporarily close parts of the premises during the construction work. Those requests were received by email. Prior to 14 March 2014, no request was received to temporarily close the administration area of the premises or to shut down the power to that area of the premises. Four staff were employed in the administration area of the premises; a receptionist, 2 administration officers and the Residential Manager, Ms Deidre Moylan. Mr Wells states that if a request had have been made to temporarily close the administration area of the premises that those staff and their equipment could have been relocated at no cost to BaptistCare, that there were no patients accommodated in the administration area and that the administration area had a stand-alone electricity supply. About 2 weeks after the incident, the power was shut down to the administration area following a request from Unity. The administration staff were relocated and the power in the switchboard to that area was shut down for a period of time. Mr Wells cannot recall the duration of that power shut down.
Section 188 Criminal Procedure Act 1986 provides that the Court may dispense with the requirement, in this case to serve the proof, on such terms and conditions as appear just and reasonable.
The operation of section 188 was considered by Adamson J in DPP v Lazzam [2016] NSWSC 145 at [29]-[38]. Her Honour made the following observations:
1. The discretion is a broad one and must be exercised judicially;
2. A defendant is entitled to have adequate notice of all the evidence to be relied on by the prosecution before the charges are dealt with by the court;
3. It is important that a prosecution not be required to be conducted on incomplete evidence since this is apt to result in an acquittal, which may not have been warranted if all the evidence had been available to prove each of the elements of the offence;
4. A balance may need to be struck by adjourning the hearing if necessary so as not to compromise the defendants opportunity to consider the evidence in order to make forensic decisions, including whether to plead guilty or not guilty;
5. The discretion is to be exercised having regard to the public interest in enabling a prosecution to be heard and determined, so long as unfairness or injustice does not occur. It is possible to conceive of situations where it would not be just or reasonable to grant the prosecution an adjournment. There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised: DPP v West (2000) 48 NSWLR 647;
6. The factors to be considered include:
1. whether there is any prejudice to the defendants;
2. the reason for any non-compliance;
3. the probative value of the evidence and its importance to the proof of the elements of the offence;
4. the public interest in determination of criminal proceedings by reference to probative and admissible evidence;
5. the public interest in finality of litigation and avoiding delays in the proceedings.
The defendants contended that they have been prejudiced for the reasons set out in the affidavit of Andrew Cairns, the solicitor for Activate Fire sworn 29 November 2016. Mr Cairns deposes that he would have advised Activate Fire to subpoena:
1. all safety and incident reports relating to the premises or the project;
2. the employment file of Mr Wells;
3. the employment file of Ms Moylan;
4. all communications between Mr Wells and/or BaptistCare and any other person relating to the project;
5. all information in respect of other persons working on the system at the premises;
6. the records relating to the project held by the external project management company.
Mr Cairns deposes that he would have received those instructions and that in his experience it is likely that the results of those investigations would have led to further investigations. He then would have reassessed all of the evidence for the purpose of advising Activate Fire of its prospects of success. Mr Cairns deposed that the proceedings are costing Activate Fire money for legal representation and costing the director time away from the business as well as stress resulting in ill-health.
The prosecutor contends that the defendants were on notice of the evidence to be led from the material served in the brief of evidence and their knowledge of how the work was completed after the incident.
The brief of evidence that was served contained the following items of evidence that were relevant to the issue:
1. A letter from People+Culture Strategies, a law firm acting for BaptistCare dated 12 February 2016, in answer to a request for information by SafeWork pursuant to a section 155 notice dated 21 January 2016 (the response to the section 155 notice). The response to the section 155 notice identified that it may have been possible to temporarily close the administration wing and to move the administration staff to another place on the premises. It was likely that no costs would be involved in doing so. The response also identified that each part of the building had its own electricity supply.
2. The Record of Interview (ROI) of Heinz Stalder dated 1 September 2014. Mr Heinz Stalder stated in his ROI, at Q198-199 that he did not believe it was possible to isolate the power to the administration area because it would have involved cutting the power for 2-8 days. He stated at Q202 that after the incident the whole administration area was rewired and most importantly got Residual Current Devices (RCDs) fitted;
3. The Record of Interview of Dylan Stalder dated 5 June 2014. Mr Dylan Stalder, who was working with Mr Gumbelton when he was injured, stated at Q84 of his ROI that after the incident, the power was isolated. He added that he thought "the power was fixed a little bit too" in that there were safety switches installed and some of the wiring was redone.
Further, the prosecution disclosed to the defendants on 25/11/16 that Inspector Christensen had discussions with 2 employees of BaptistCare at the premises during the course of her investigation. Inspector Christensen was told by those persons that the power to the administration area of the premises could not be isolated. Inspector Christensen cannot identify those persons and did not make notes of her conversation with them.
The prosecutor accepted on the first day of the trial that the response to the section 155 notice was not admissible in that form. The search for a witness from BaptistCare to give the evidence that was the the subject of the response to the section 155 notice was presumably commenced last week when the issue became apparent to the legal representatives of the prosecutor.
I am satisfied that the evidence of Mr Wells is probative of the issue pleaded in paragraph 7(c) of the Summons and is required by the prosecution to properly put its case on that issue.
I am satisfied that the defendants are not prejudiced by the prosecution leading the evidence of Mr Wells in any way that cannot be cured by appropriate directions for the following reasons.
First, the issue of the ability to isolate the power in the administration area is a matter that is specifically pleaded. The defendants could have sought particulars to identify the evidence that the prosecution intended to rely on to prove its case on this point.
Second, there was evidence in the brief of evidence in the response to the section 155 notice, albeit inadmissible in that form, and in the ROI of Mr Dylan Stalder that the power to the administration area was or could be isolated after the incident with minimal inconvenience. In other words, the defendants were on notice of the evidence to be called against them. Further, there is other evidence available on this issue that is exculpatory and the issue is fairly arguable by the prosecution and the defendants.
Third, Unity have actual knowledge of how the work was done after the incident, such that the required investigation of this issue is minimal. That investigation is unlikely to extend beyond making enquiries of its employees, if those matters are not already known to it. Unity would already have access to the email correspondence with Mr Wells and the prosecution intends to call Mr David Gurtner as a witness. Both defendants have knowledge of their interactions with Mr Wells and are in a position to give instructions as to his apparent authority to speak for BaptistCare at the premises.
Fourth, the matters identified by Mr Cairns that I have set out at [10] above are mostly fishing expeditions and I do not accept that they are warranted. It is now unlikely that the trial will finish in the allocated time, i.e. by 2 December 2016. It will be necessary to resume the trial in about March 2017. That adjournment will give the defendants ample time to issue any subpoena that they want to that is relevant to Mr Wells' evidence and to review the material produced. I will direct that Mr Wells not be called until the trial is resumed. I will of course entertain any further application on this issue during the course of the trial, if that becomes necessary by reason of the evidence led by the prosecutor.
Fifth, if this issue results in the extension of the trial I can make costs orders in favour of the defendants to compensate them for the additional legal costs, if that is appropriate at the end of the trial.
For these reasons I make the following orders:
1. I extend time to serve the proof of evidence of Peter Wells by the prosecutor to 29 November 2016.
2. I direct that Mr Wells not be called until the trial resumes at a date to be fixed at the end of the time presently allocated to it.
3. I reserve any question of costs relating to this issue to the end of the trial.
[2]
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Decision last updated: 18 April 2018