SafeWork NSW v Investa Asset Management Pty Ltd

The unavailability of the expert

1. At the time when the matter was listed for hearing in December 2017, the defendant had received advice from counsel not to retain an expert.
2. In or about May 2018 the solicitor with carriage of the matter for the defendant had further discussions with an expert and sought advice from senior counsel, who now appears for the defendant, as to whether or not to qualify an expert. As a result of the advice received, the defendant took steps to retain the expert, however the expert is unavailable between 18 July 2018 to 30 September 2018. The solicitors for the defendant have been unable to retain another suitably qualified expert.
3. I am informed by senior counsel that the evidence that the expert will give is critical to the elements of breach of duty and causation, which are both elements of the offence.
4. I have considered that it would be possible to split the hearing or arrange for the expert to give evidence by audio-visual link. The defendant says that it would be prejudiced by that course because the expert would not be present during the course of the evidence of particular witnesses with technical expertise, to provide assistance to the defendant's lawyers.
5. Whilst there has been some delay on the part of the defendant in qualifying an expert, that delay has been satisfactorily explained and the matter was listed expeditiously after the issue arose.
6. A further problem is that the evidence to be relied on by the prosecution has not yet been fully identified. This may present difficulties in briefing the expert, but for the reasons set out below, presents a more fundamental obstacle to the hearing proceeding on the dates for which it has been listed.

The inadequacy of the prosecution brief of evidence

Contents of the prosecution brief

1. The prosecution brief of about 14 volumes was served shortly after the proceedings commenced. It contained the following: 1. 4 statements SafeWork inspectors, a police notebook statement from Soc Kitsandonis (an eyewitness to the fall) and Dr Casey's report; 2. 6 records of interviews conducted by SafeWork inspectors with officers and employees of BMUS, Mr Castellanos and Mr Wilson; 3. 6 responses to specific questions posed by SafeWork pursuant to section 155 of the Act from officers of Ultra Clean (the employer of Mr Castellanos and Mr Wilson), officers of BMUS, employees of BMUS and officers of the defendant; 4. various business records of a number of persons including, the defendant, Ultra Clean, BMUS and the NSW Ambulance Service, some of which were obtained under section 155 of the Act.
2. In August 2017, the prosecutor informed the defendant that it intended to call 19 witnesses. In April 2018, the prosecutor informed the defendant that it intended to call an additional 3 witnesses. In April 2018, the prosecutor informed the defendant that it intended to call an additional 10 witnesses, bringing the current total to 32 witnesses.
3. Of those witnesses, 16 have not provided a witness statement, record of interview or section 155 responses. A further 5 witnesses have provided section 155 responses as an officer of a body corporate and not in an individual capacity.
4. The prosecutor has refused to provide statements of the 21 witnesses, stating that it is under no obligation to do so and it anticipates that their evidence will be consistent with the documents contained in the prosecution brief.
5. In the course of the adjournment application, counsel for the prosecutor indicated that the 16 have been identified from the documents served as part of the prosecution brief, mainly as the authors of, or persons referred to in the business records obtained during the course of the investigation. The prosecutor does not presently know what those witnesses will say, but expects their evidence to be consistent with the documents in the prosecution brief. The prosecutor intends to have conferences with each of the witnesses before the hearing and to serve any notes taken at those conferences on the defendant by no later than 16 July 2018 (for witnesses who are not the defendant's employees) and 23 July 2018 (for the defendant's employees).

The relevant law

1. The offence the subject of the charge is a Category 2 offence and carries a maximum penalty of a fine of $1.5 million: s 32(1) of the Act.
2. Section 229B(1) of the Act provides that the proceedings for offences are to be dealt with summarily before the Local Court or in the summary jurisdiction of the District Court.
3. Chapter 4 Criminal Procedure Act 1986 (the CPA) sets out the procedure governing offences dealt with summarily. Part 5, Division 2A concerns case management, but this division does not apply to the District Court: s170(3)(c1) of the CPA.
4. Section 247E(1)(e) (contained in Part 5, Division 2A) of the CPA sets out that the prosecutor in summary proceedings in the Supreme Court must give to the defendant a copy of the affidavit or statement of each witness whose evidence the prosecutor proposes to adduce at the hearing of the proceedings. Section 247T of the CPA provides that a statement may be in the form of questions and answers.
5. Section 183 (contained in Part 4, Division 2) of the CPA sets out that the prosecutor in summary proceedings in the Local Court must serve on the defendant written statements taken from the persons the prosecutor intends to call to give evidence in proceedings for the offence and copies of any document or any other thing, identified in such a written statement as a proposed exhibit. Statements may be in the form of questions and answers for vulnerable persons or victims of domestic violence: s283C and s283D of the CPA.
6. However, by operation of s170, neither s247E or s183 of the CPA apply to the District Court in its summary jurisdiction.
7. Put simply, if the prosecutor had commenced these proceedings in the Local Court, it would be required to comply with s183 of the CPA and serve written statements of the witnesses, which would not include evidence in the question and answer format.
8. Proceedings for a Category 1 offence against an individual would be required to proceed on indictment and the prosecution would be required to prepare statements: ss31 and 229B(3) of the Act and Chapter 3 of the CPA.
9. Section 257 of the CPA contemplates that rules will be made 'for or in respect to the practice and procedure of a court in the exercise' of its summary jurisdiction. Those rules cover pre-trial procedures.
10. While Part 53 of the District Court Rules 1970 sets out procedures that apply to the summary jurisdiction of the Court, those rules do not provide for the service of statements. Rule 53.28 applies to applications under s246 of the CPA (contained in Part 5 Division 2 of the CPA): s170(3)(c1) of the CPA. Rule 53.28 authorises the Court make any order or give any directions for the just and efficient disposal of the proceedings.
11. 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).
12. The prosecutor's duty of disclosure extends to the provision of witness statements to an accused: Maddison v Goldrick [1976] 1 NSWLR 651.
13. 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.
14. 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.'
15. 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.
16. This Court has the power to control and supervise its proceedings to prevent an injustice: Jago at 25 per Mason CJ.

Witnesses identified from the documents

1. The prosecutor has presently identified 16 witnesses that may be materially relevant by reason of their actions recorded in various documents. The prosecutor presently does not know what those witnesses will say if they are called to give evidence, other than it expects them to confirm their actions that are referred to in the documents. This presents a number of problems.
2. A witness or a number of witnesses may provide new information that is not presently known to the defendant. This presents a significant risk of trial by ambush. The new information may be inculpatory, exculpatory or may lead to a chain of enquiry. This may lead to the defendant being unable to meet the prosecution case. It removes the ability of the defendant to investigate, by subpoena or otherwise in a timely manner. It may lead to adjournments during the course of the trial that result in a waste of court time as well as the resources of the parties. Such adjournments occur too often in this jurisdiction, as a result of the state of the prosecutor's case; see for example, SafeWork NSW v Wollongong Glass Pty Ltd [2016] NSWDC 58 and SafeWork NSW v Unity Pty Ltd [2017] NSWDC 66.
3. The matter cannot be dealt with by a blanket refusal to allow the prosecutor to lead evidence from those witnesses because the evidence may be exculpatory or be of such a nature that it is required to be disclosed to the defendant.
4. The evidence from a witness or a number of those witnesses may be irrelevant to the proceedings, or go to a matter that the defendant does not wish to challenge. The defendant is presently left to speculate about what the witnesses might say and cannot agree to the admission of their evidence, even if it eventually is non-contentious. This has led to significant inefficiency in the trial process to date, which is likely to continue.
5. It is no answer for the prosecutor to say that the defendant has failed to limit the issues in the proceedings to date. The prosecutor bears the onus of proof of proving the elements of the offence beyond reasonable doubt. Until such time as the prosecutor is prepared to state that it has disclosed the full extent of the evidence on which it intends to rely, the defendant cannot be required to narrow the issues. This is reflected in the case management procedures applicable in the other jurisdictions that are provided for in the CPA.
6. The provision of conference notes by the prosecutor close to the hearing date will not alleviate the prejudice suffered by the defendant, because of the limited time available to investigate the matters that arise from the conference notes and because it is not envisaged that the conference notes will be adopted by the witness. This may lead to errors in communication and recording of the notes that may result in further problems.
7. It is essential for the defendant to receive a fair trial that the prosecutor provide signed statements for the 16 material witnesses that are identified in the documents. This process is also likely to lead to increased efficiency in the trial and in the preparation for trial by both sides. The prosecutor is not prejudiced by having to provide statements for the reasons that follow.
8. First, the prosecutor has identified the 16 witnesses as 'material' and thereby it has an obligation to investigate and disclose to the defendant what evidence they will or could give. The prosecution's disclosure obligations are not and cannot be dependent on blanket complaints about resourcing.
9. Second, the prosecutor and its inspectors have broad investigative powers provided for by the Act. If it cannot secure the co-operation of the witnesses to provide statements after proceedings have been commenced, then it may have to consider using its compulsive powers earlier in the investigation process to secure such statements.
10. Third, the prosecutor has not presently sought to obtain the co-operation of the witnesses to provide statements. Some of the relevant witnesses are employees of the defendant and I would expect co-operation between the parties as to the availability of those witnesses and directions can be sought about these witnesses, if necessary. Ultimately if a witness does not co-operate then the prosecutor should serve an outline of the evidence that it expects the witness to give, which should be as full as the information permits and should not conceal or supress any part of the expected evidence: ASIC v Vines [2002] NSWSC 1223 at [8] per Austin J.
11. Fourth, the prosecutor can seek a costs order if successful in the prosecution to recoup the legal costs, if any, involved in preparing the statements.

Witnesses who have participated in a record of interview (ROI)

1. The evidence in the ROIs should be considered separately because each of the summary procedures in the CPA contemplate that type of evidence, albeit in different circumstances. Section 283B(1) of the CPA permits a written statement to be in a question and answer form.
2. I have not seen the ROIs in this case and I think I should allow further argument on them, if required. My initial views, which are provided as guidance for the parties' further discussions, and without coming to a concluded view, are as follows.
3. The ROI should be adopted by the person by signing the ROI, or a transcript of the ROI if they are electronically recorded.
4. A signed statement of the person should be prepared and served if the prosecutor wishes to lead any additional or new evidence, ie evidence that is not contained in the questions and answers by way of clarification or otherwise, or where the person indicates that they do not agree with or stand by the content of any of the answers contained in the ROI.
5. As a minimum requirement, the prosecutor should prepare and serve a schedule of the pleadings in the summons, indicating which questions and answers from each witness are relevant to each matter pleaded; for example Q&A 150-155 in the ROI of Mr Smith is to be led as to the reasonably practicability of the control measure pleaded in paragraph 4(a) of the Summons.
6. Where the case is difficult or the ROI contains a lot of irrelevant or repetitive material or if the process outlined in [52] above is likely to be inadequate, misleading or confusing, a signed statement of the witness should be obtained and served.

Conclusion

1. For the reasons expressed the prosecution brief of evidence is inadequate and the proceedings must be adjourned.

Orders

1. The orders I make are as follows: 1. The hearing date of 6 August 2018 is vacated. 2. I direct that the prosecutor serve written statements taken from the persons the prosecutor intends to call to give evidence in the proceedings and copies of any document or any other thing, identified in such a written statement as a proposed exhibit, on or before 5.00pm on 30 July 2018. The written statements served must comply with s283B(2)-(5) Criminal Procedure Act 1986 and clauses 9I and 9K Criminal Procedure Regulation 2017. 3. I direct that the prosecutor serve a schedule identifying each question and answer in any record of interview to be relied on by the prosecutor and to which of the pleaded particulars in the Summons the question and answer is relevant, on or before 5.00pm on 30 July 2018. 4. I direct that the parties confer as to any further directions to be made as to the use of the records of interview. 5. I grant liberty to the parties to approach my Associate to list the matter for further argument on the use of the records of interview at a mutually convenient time. 6. I list the matter for hearing on 18 February 2019 with an estimate of 3 weeks. 7. I list the matter for directions on 6 August 2018 at 10.00am. 8. I will hear the parties on costs.

Amendments 20 November 2019 - Catchwords added 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: 20 November 2019