HD Projects Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(2) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Ken Graff and Soane Sitauti to a risk of death or serious injury contrary to section 32 of the Act.
At the commencement of the trial the defendant sought an advance ruling pursuant to s 192A Evidence Act 1995, to exclude evidence sought to be adduced by the prosecutor that has only recently been disclosed to the defendant (the new evidence). The defendant's position is that it cannot receive a fair trial, because it cannot meet the new evidence if it is admitted and the trial proceeds.
The defendant sought the advance ruling to decide if in the light of the new evidence that the concessions that it made during the case readiness procedure, set out at [15] below, were still appropriate. I am satisfied that this is a sufficient reason to provide an advance ruling if the application to exclude the evidence is successful.
[2]
The incident
The defendant was contracted to install AFS Logicwall panels (panels) at a building site in Kellyville (the site). The panels are a permanent formwork system constructed of fibre cement sheets separated by steel stud frames. The panels are erected then filled with concrete to form the walls of the buildings. Arise Constructions Pty Ltd (Arise) was the principal contractor for the site. Arise engaged All Cranes 4 Hire Pty Ltd, trading as Top Gun Cranes (AC) to operate a mobile crane and to provide the services of a crane driver and a dogman, for the purposes of undertaking the building work at the site.
On 15 December 2017, panels were being lifted by a mobile crane from the ground to the first floor level of a block of townhouses that were under construction. The panels were stacked horizontally in packs of about 10 that were secured together with plastic shrink wrap packaging. The manufacturer of the panels provided a PHD2200 Adjustable Pallet Hook (the Pallet Hook) to the defendant to be used to load the panels onto a crane. The Pallet Hook had tines, similar to a forklift, that were inserted into the frame of the bottom panel. The top of the Pallet Hook was then attached to the chain of the crane by an O ring that could be moved to align with the centre of gravity of the load.
At about 10.30am, a pack of panels was attached to the Pallet Hook by Marc Dessens, a labour hire employee, engaged by the defendant. Mr Dessens was not a qualified dogman. Mr Dessens inserted the tines of the Pallet Hook into the second panel from the bottom. When the crane lifted the pack of panels, the bottom panel broke through the shrink wrapping and fell, injuring Mr Graff and Mr Sitauti, who were standing below. Each panel weighed about 76kg.
On the day of the incident, Inspectors Leonie Ball and John Mizzi from SafeWork NSW attended the site and commenced an investigation into the incident. A few months later, Inspector Bronwen Halcroft was appointed as the lead investigator into the incident.
On 20 April 2018 Inspector Halcroft sent a series of questions to the defendant to be answered pursuant to s 155 of the Act. On 4 May 2018 the defendant sent a response to the s 155 Notice composed by Clyde Daish, the operations manager of the defendant and Adam Hamburger, an employee of the defendant with control of the defendant's work activities at the site. The response stated that Mr Hamburger had input in providing the answers to questions 15-36 of the Notice, because he had direct knowledge of the matters, the subject of those questions. Inspector Halcroft did not seek to interview Mr Hamburger as part of the investigation into the incident.
On 23 April 2018 Mr Dessens was interviewed by Inspector Halcroft. The interview was recorded and later transcribed into a Record of Interview (ROI).
On 11 May 2018 Inspector Halcroft sent a series of questions to AC to be answered pursuant to s 155 of the Act. On 25 May 2018 Barry Ramm, the sole director of AC, sent a response to the s 155 Notice on behalf of AC. Inspector Halcroft did not seek to interview Mr Ramm as part of the investigation into the incident.
[3]
The proceedings
The Summons was filed on 12 December 2019. A prosecution was also commenced against AC and Mr Ramm.
A brief of evidence was served on the defendant after the proceedings commenced. The brief included the ROI, the s 155 response prepared with the input of Mr Hamburger and the s 155 responses from AC.
A plea of not guilty was entered by the defendant on 30 March 2020 and the matter was adjourned to 22 June 2020 to allow the parties to comply with the provisions of the District Court Criminal Practice Note 16 (the Practice Note).
On 25 May 2020 the prosecutor provided the defendant with a schedule of Questions and Answers pursuant to paragraph 11(e) of the Practice Note and a list of prosecution witnesses pursuant to paragraph 11(h) of the Practice Note. The schedule identified a number of Questions and Answers in Mr Dessens' ROI and the s 155 responses of the defendant and AC. The prosecutor provided a list of the witnesses it intended to call that identified the ROI as the statement of Mr Dessens and the May s 155 response as the statement of Mr Ramm. Mr Hamburger was not included in the list of witnesses to be called by the prosecutor.
On 10 June 2020 the defendant provided the prosecutor with a response relating to the matters provided for in paragraph 12 of the Practice Note. Relevantly, that included consent to the tender of each of the Questions and Answers identified in the prosecution schedule and a list of witnesses who were not required for cross-examination.
On 22 June 2020 at the case readiness hearing (CRH), the parties informed the Court that they had complied with the Practice Note and that the matter was ready to be set down for hearing. The proceedings were adjourned to 13 July 2020 to marry up with the proceedings against AC and Mr Ramm.
On 13 July 2020 the prosecutor told the Court that Mr Ramm was to be called as a witness in these proceedings and that the matter should not be set down until AC and Mr Ramm entered a plea in the related proceedings. The matter was stood over until 10 August 2020.
On 10 August 2020 these proceedings were set down for hearing on 2 December 2020, with a 3 day estimate.
AC and Mr Ramm subsequently entered pleas of guilty. The sentence proceedings relating to AC and Mr Ramm were heard by Judge Russell SC on 19 November 2020. His Honour has reserved his decision. AC and Mr Ramm relied on an affidavit sworn by Mr Ramm on 13 November 2020. The prosecutor provided a copy of the affidavit to the defendant on or about 20 November 2020.
On 26 November 2020 the prosecutor wrote to the Court making an application to call Mr Dessens by AVL, outside of normal court sitting hours, because Mr Dessens was now residing in France. That order was made in chambers.
[4]
The new evidence
On 2 December 2020, the first day of the trial, I was told by the defendant that the prosecutor had indicated that it sought to lead new evidence from Mr Dessens, Mr Ramm and Mr Hamburger. I will deal with each witness in turn.
[5]
Marc Dessens
The prosecutor tendered on the voir dire a statement signed by Mr Dessens dated 30 November 2020. The statement was prepared after a conference was conducted with Mr Dessens. The prosecutor served notes taken at the conference, that the defendant complained were not easy to follow and illegible. A transcript of the notes was provided recently.
The statement sought to clarify some of the matters referred to by Mr Dessens in his Record of Interview and it also contained new material for example, the procedure he adopted in slinging the load on the day of the incident, that it was Mr Hamburger who instructed him what to do on the day and how many loads he had slung on that day. In the interview conducted on 23 April 2018, Mr Dessens stated that he could not recall who provided him with instructions on the day of the incident and the number of loads that he had slung on the day of the incident was unclear.
[6]
Barry Ramm
The prosecutor indicated to the defendant that it sought to tender the affidavit of Mr Ramm sworn on 13 November 2020 and relied on by AC and Mr Ramm in the sentence proceedings before Judge Russell SC. One of the matters sought to be relied on in the affidavit was an assertion by Mr Ramm that Mr Hamburger provided Mr Dessens with the method to be used to sling the load on the day of the incident and that he had a conversation with Mr Hamburger to that effect. The affidavit was not tendered on the voir dire.
No evidence was led on the voir dire to the effect that Mr Ramm was asked, or refused to speak to the prosecutor's legal representatives after the proceedings were commenced.
[7]
Adam Hamburger
The prosecutor's legal representatives sought to speak to Mr Hamburger in recent times, but no agreement could be reached between Mr Hamburger and the prosecutor to permit that to occur.
The prosecutor recently indicated that it intended to call Mr Hamburger as a witness in the proceedings and proffered an outline of the evidence that it expected he could give.
The prosecutor's position is that the s 155 responses, into which Mr Hamburger had input are inconsistent with the evidence of Mr Dessens. The purpose of calling Mr Hamburger is so that the prosecutor could put those inconsistencies to him and to provide him with an opportunity to respond. The inconsistencies are significant to the issues in the case. For example, the defendant's position is that Mr Dessens was trained on the content of the defendant's Safe Work Method Statement (SWMS) whereas Mr Dessens' evidence was that he was not and that he did not sign the document or write his name on it.
[8]
The relevant legal principles
In SafeWork NSW v Investa Asset Management Pty Ltd [2018] NSWDC 173 at [31]-[36], I set out the relevant legal principles as follows:
[31] It is a fundamental principle of criminal procedure that an accused is entitled to a fair trial: Jago v District Court of New South Wales (1989) 168 CLR 23. Further, the prosecution must act with fairness and detachment in exercising its public prosecutorial functions: Whitehorn v The Queen (1988) 152 CLR at 663-664 per Deane J. An 'inseparable part' of an accused's right to a fair trial is the accused's right to fair disclosure: R v Brown (Winston) [1994] 1 WLR 1599 at 1606 per Steyn LJ (cited in WA v Christie (2005) 30 WAR 514 at 517 per McKenchie J).
[32] The prosecutor's duty of disclosure extends to the provision of witness statements to an accused: Maddison v Goldrick [1976] 1 NSWLR 651.
[33] The prosecution may not supress evidence in its possession or available to it, material to the contested issues in the trial and must ordinarily provide such evidence to the defence: Mallard v R (2005) 224 CLR 125 at [81] per Kirby J. The defence should not be required to 'fossick for information' of the kind it should receive from the prosecutor: Grey v The Queen (2001) 184 ALR 593 at [23] per Gleeson CJ, Gummow and Callinan JJ.
[34] In R v Ulman-Naruniec (2003) 143 A Crim R 531, the Full Bench of the South Australian Supreme Court) held in a criminal prosecution that 'If a witness is to be called, then a copy of that witness's statement should be provided.'
[35] Notwithstanding that the CPA does not expressly provide for the provision of witness statements, the prosecutor's duty of disclosure arises independently of statute: Mallard v R (2005) 224 CLR 125 at [17] per Gummow, Hayne, Callinan and Heydon JJ.
[36] This Court has the power to control and supervise its proceedings to prevent an injustice: Jago at 25 per Mason CJ.
A prosecutor is required to specify the evidence it will rely on and to indicate how it will use that evidence to prove the elements of the offence. This can involve an election by the prosecutor that will be binding on the determination of the case and will inform the admissibility of evidence sought to be led: S v The Queen (1989) 168 CLR 266 and Veysey v R (2011) 33 VR 277.
The Practice Note was formulated following Investa in an effort to prevent the adjournment of hearing of further WHS prosecutions. Clause 7 of the Practice Note provides for the content of a brief of evidence to be served, within 28 days of the filing of a Notice of Appearance by the defendant. The Practice Note permits the brief of evidence to include information gathered by Inspectors pursuant to their specific powers provided for by ss 155, 171 and 185A of the Act: see clauses 7(d)-(f) of the Practice Note.
Clause 8 of the Practice Note provides that written statements taken from any person the prosecutor intends to call to give evidence at the hearing must comply with s 283B(2)-(5) Criminal Procedure Act 1986 and clauses 9I and 9K Criminal Procedure Regulation 2017. It continues, "A written statement is not required if the evidence to be adduced at the hearing by the prosecutor is disclosed in documents referred to in clauses 7d-f of this Practice Note" (emphasis added).
Clause 9 of the Practice Note relevantly provides that a written statement should be prepared and served if the prosecutor wishes to lead any new or additional evidence, or an outline of evidence should be prepared and served if the witness does not consent to giving a statement (emphasis added).
Clause 11 of the Practice Note obliges the prosecutor to serve a number of documents no later than 4 weeks before the CRH.
Clause 11(e) of the Practice Note provides that if any Record of Interview or information received pursuant to s 155(2)(a) of the Act is to be tendered by the prosecutor, the prosecutor must serve a Schedule identifying each question and answer to be relied on and to which of the pleaded particulars in the Summons the question and answer is relevant.
I pause to note that the reasons why this clause was added was to:
1. accommodate the specific powers of Inspectors appointed under the Act who investigate alleged breaches of the legislation;
2. recognise that the Criminal Procedure Act provides for the provision of statements in question and answer form in some instances; and
3. deal with the fact that Records of Interview conducted by Inspectors can often be prolix and unstructured by reference to the elements of a charge. That is not intended to be a criticism of the work of the Inspectors, but merely recognises that Records of Interview can be obtained during the investigative process when a case theory has not been developed.
Clause 11(h) of the Practice Note requires the prosecutor to serve a list identifying the statements of those witnesses who are proposed to be called at the hearing by the prosecutor.
[9]
Consideration
The prosecutor's position in relation to each witness is untenable. The evidence sought to be led is new evidence that has not been previously disclosed in the brief of evidence or as a result of the CRH procedures.
The fact that Mr Dessens' ROI is to some extent disjointed, contradictory and confused is obvious and was known to the prosecutor from the time that it received the transcript of the ROI. The fact that the ROI should have led to further investigation of the allegations made by Mr Dessens, for example that he did not sign the SWMS, was similarly obvious. The prosecutor was in a position to seek further information from Mr Dessens during the course of the investigation or after the Summons had been filed. No explanation has been put forward as to why the conference with Mr Dessens could not have been conducted prior to the CRH and a statement proffered at that time, if it was thought to be a prudent course.
The fact that Mr Ramm served an affidavit in the sentence proceedings before Judge Russell SC, made it disclosable by the prosecutor, but it does not follow that it is admissible in the proceedings against the defendant. The prosecutor had the opportunity to interview Mr Ramm during the investigation or to seek to speak with him after the proceedings had commenced. No explanation has been put forward as to why that was not done.
The prosecutor seeks to call Mr Hamburger as a witness, but it still does not know what he will say. It is proposed to put inconsistencies between the defendant's position as communicated in the response to the s 155 Notice and Mr Dessens' evidence. The fact that there were inconsistencies in the evidence was obvious and was known by the prosecutor as long ago as 4 May 2018. The prosecutor had the opportunity to interview Mr Hamburger during the investigation or to seek to speak with him after the proceedings had commenced. No explanation has been put forward as to why that was not done, but I note that Mr Dessens now lives overseas. Mr Hamburger's proposed evidence is an embodiment of the problems outlined in Investa. The defendant does not know what Mr Hamburger will say or how it will be used by the prosecutor to establish the elements of the offence.
The late disclosure of the new evidence poses a significant risk of an unfair trial, if the late evidence is admitted at the hearing. If the evidence was to be admitted the defendant would be denied some of the opportunity to investigate the new evidence and to pursue a defence to the proceedings on the basis of the evidence disclosed by the prosecutor in compliance with the Criminal Procedure Act and the Practice Note.
The prosecutor's approach in seeking to lead the new evidence is in breach of the provisions of the Practice Note.
The prosecutor contended that the Practice Note does not require the disclosure of new material in providing the CRH documents, if a ROI or s 155 response is relied on as the witness' statement and that it is entitled to lead new and additional material in oral evidence when the witness is called. I reject this submission for the reasons that follow. First, the submission belies the express words of clauses 8 and 9 of the Practice Note. Second, that approach is inconsistent with the accused's right to fair disclosure discussed and illustrated in the context of WHS prosecutions in Investa. Third, if the argument is accepted it would allow the prosecutor to tender and rely on a question and answer statement and to ask the witness questions by way of clarification that is likely to introduce new material and create the unfairness, which is antithetical to the established principles and the terms of the Practice Note. Fourth, acceptance of the argument would allow a process to occur that would lengthen the Court time necessary for the hearing of the matter. This is inefficient and is a waste of public resources. Fifth, I have emphatically rejected the argument previously in another prosecution brought by the same prosecutor. I would be very surprised if my firm views on this matter were not known by the prosecutor.
I have no doubt that the new evidence has been sought and disclosed as a result of counsel for the prosecutor's diligence in preparing the case for trial, but those efforts have simply come too late.
The obligations owed by the prosecutor must be fulfilled prior to the CRH. This involves speaking to the witnesses to be called at a hearing and formulating a settled case theory. If that cannot be done by the in-house lawyers of the prosecutor, then it should be done by counsel. That requires counsel to be briefed earlier to advise on the steps to be taken. The terms of the Practice Note are flexible as to the time that can be allowed for the prosecutor to comply with it, if required. As I said in Investa, if this involves extra cost, it is recoverable from the defendant if the prosecution is successful.
[10]
Orders
The orders I make are:
1. The new evidence proposed to be led by the prosecutor from Marc Dessens, Barry Ramm and Adam Hamburger is excluded.
2. I reserve the costs of this application.
[11]
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: 09 February 2021