SafeWork NSW v Mark Duffin

Procedural History

1. The proceedings against Mr Duffin first came before the District Court on 1 November 2021. After 10 directions hearings, Mr Duffin entered a plea of not guilty on 10 October 2022.
2. At a later directions hearing held on 24 October 2022 orders were made by consent setting out dates to apply under par 29 of Practice Note 16.
3. By a later order made in chambers on 6 December 2022, the dates were amended by consent as follows: "1. SafeWork NSW is to comply with paragraph 29(a) of the Practice Note ("PN") by 19 December 2022. 2. Mr Duffin is to comply with paragraph 29(b) of the PN by 13 February 2023. 3. SafeWork NSW is to comply with paragraph 29(c) of the PN by 13 March 2023. 4. A preliminary conference is to be held between the parties in compliance with 29(d) of the PN by 31 March 2023. 5. The Case Readiness Hearing listed for 27 March 2023 is vacated. 6. The proceedings are listed for a Case Readiness Hearing on 11 April 2023."
4. On 22 March 2023 an order was made in chambers vacating the Case Readiness Hearing of 11 April 2023, and standing the proceedings over to the WHS List at 9.30am on 17 April 2023.
5. The consent directions made to comply with Practice Note 16 appointed dates for a timetable for the taking of steps under Part 5 Div 2A of the CP Act, which provides for case management to reduce delays in proceedings. The agreed dates resulted in the following timetable: 1. SafeWork was to serve a notice of the prosecution case under s 247E of the CP Act and/or a notice of disclosure by the prosecutor under s 247J of the CP Act by 19 December 2022. 2. Mr Duffin was to serve a notice of the defence response under s 247F of the CP Act and/or a notice of disclosure under s 247K of the CP Act by 13 February 2023. 3. SafeWork was to serve a notice of disclosure in response by the prosecutor under s 247L of the CP Act by 13 March 2023. 4. A preliminary conference under s 247H of the CP Act was to be held by 31 March 2023, with a view to the parties agreeing on the evidence to be adduced at the trial and/or identifying the evidence that will be objected to at the trial.
6. On 17 April 2023 the parties appeared before me by counsel. Counsel for the defendant said that the prosecutor had indicated that it intended to serve a new expert report upon the defendant. While the defendant had been told about the report, it had not yet been finalised or served. Counsel for SafeWork indicated that the new report was "based on a technical report that is already contained in the Brief of Evidence".
7. It was conceded that the defendant needed some time to consider such a report once it was served, and with a view to giving the defendant that opportunity the orders made on 17 April 2023 were: 1. Direct the prosecutor to serve an expert report by Mr Beacham by 15 May 2023. 2. Stand over to 10.00am on 31 May 2023 before me for a case management hearing.
8. I was not available to conduct the case readiness hearing on 31 May 2023. Judge Strathdee dealt with the matter on that day. Her Honour was informed that the new expert report was only served after hours on 30 May 2023 and thus the defendant had not had the opportunity to consider it. Primarily for that reason her Honour stood the matter over before me on 28 June 2023, so that I could conduct a case management hearing. That date was later amended by an order made in chambers, to accommodate the convenience of the parties. The case readiness hearing took place before me on 13 July 2023.

Request for a Preliminary Ruling

1. On 13 July 2023 the parties requested that I give a ruling as to whether SafeWork could seek to rely upon the new expert report at the trial. I was not asked to hear objections or determine whether or not the report complies with the rules of evidence. The issue for determination is whether SafeWork can tender the report at the trial (subject to any objections based upon the rules of evidence), or whether SafeWork should not be allowed to tender the report at all.
2. Section 247G(4) of the CP Act deals with preliminary hearings, and gives the court the power to make any order, determination or finding, or give any ruling, on application by a party or on the court's own initiative. In this instance, both parties asked me to give a ruling upon whether SafeWork could deploy the new report at all.
3. Such a ruling can be made for the efficient management and conduct of the proceedings - s 247G(2) of the CP Act. Section 247G(3)(e) provides that one such preliminary ruling is a ruling under s 192A of the Evidence Act 1995 (NSW). Section 192A(a) empowers a court to give a ruling, inter alia, concerning the "use of evidence proposed to be adduced". While the parties did not articulate a statutory basis for their request for a ruling, I find that I have power to make a ruling pursuant to the provisions of s 247G of the CP Act and s 192A of the Evidence Act.
4. Giving such a ruling now, well ahead of the trial, will allow the defendant to know the case he has to meet; will allow both sides to prepare properly for a trial; will save time at the trial and will assist in the efficient management and conduct of the proceedings - s 247G(2) of the CP Act.

Notice of Defence Response

1. By the consent orders referred to above, the parties agreed that the court should make orders for the prosecutor to give the defendant notice of the prosecution case, and for the defendant to give the prosecutor notice of the defence response: s 247I of the CP Act.
2. Section 247K of the CP Act deals with the matters required to be included in a court-ordered defence response. Section 247K of the CP Act provides as follows: "247K DEFENCE RESPONSE--COURT-ORDERED PRELIMINARY DISCLOSURE For the purposes of section 247I (1) (b), the notice of the defence response is to contain the following-- (a) the matters required to be included in a notice under section 247F, (b) a statement, in relation to each fact set out in the statement of facts provided by the prosecutor, as to whether the defendant considers the fact is an agreed fact (within the meaning of section 191 of the Evidence Act 1995) or the defendant disputes the fact, (c) a statement, in relation to each matter and circumstance set out in the statement of facts provided by the prosecutor, as to whether the defendant takes issue with the matter or circumstance as set out, (d) notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection, (e) if the prosecutor disclosed an intention to adduce expert evidence at the hearing of the proceedings, notice as to whether the defendant disputes any of the expert evidence and which evidence is disputed, (f) a copy of any report, relevant to the proceedings, that has been prepared by a person whom the defendant intends to call as an expert witness at the hearing of the proceedings, (g) if the prosecutor disclosed an intention to adduce evidence at the hearing of the proceedings that has been obtained by means of surveillance, notice as to whether the defendant proposes to require the prosecutor to call any witnesses to corroborate that evidence and, if so, which witnesses will be required, (h) notice as to whether the defendant proposes to raise any issue with respect to the continuity of custody of any proposed exhibit disclosed by the prosecutor, (i) if the prosecutor disclosed an intention to tender at the hearing of the proceedings any transcript, notice as to whether the defendant accepts the transcript as accurate and, if not, in what respect the transcript is disputed, (j) notice as to whether the defendant proposes to dispute the authenticity or accuracy of any proposed documentary evidence or other exhibit disclosed by the prosecutor, (k) notice of any significant issue the defendant proposes to raise regarding an application for an appearance order, severability of the charges or separate trials or sentencing proceedings for the charges, (l) notice of any consent the defendant proposes to give under section 184 of the Evidence Act 1995 . Note : The defendant is not required to include in a notice anything that has already been provided or disclosed to the prosecutor (see section 247U (2))."
3. The Notice of Defence Response is contained in a letter dated 13 February 2023 from the solicitors for Mr Duffin to the solicitors for SafeWork (MFI 3). Annexure A to that letter constitutes compliance with the requirements of ss 247K(b) and 247K(c) of the CP Act. Annexure A sets out the defence response to the facts alleged by the prosecutor. The response takes the form of indicating that the defendant takes issue with a particular fact or does not take issue with a particular fact.
4. Annexure B to the letter sets out the defence response in relation to s 247K(d) of the CP Act. Annexure B gives notice as to whether the defendant proposes to dispute the admissibility of any proposed evidence disclosed by the prosecutor and the basis for the objection. The defence response sets out those prosecution documents in relation to which the defendant disputes the admissibility of the evidence. Annexure B does not set out the basis for each objection.
5. In relation to the Technical Report of Inspector Beacham dated 23 April 2020 (MFI 4) the letter dated 13 February 2020 (MFI 3) said: "Further, pursuant to s 247K(e) of the CPA, the Defendant disputes the admissibility of the expert evidence contained behind tabs 11.1 and 11.2 of the Prosecution Brief of Evidence, on the basis that Inspector Peter Beacham lacks independence. The Defendant also contends that the material is not relevant to the proceedings."
6. Mr P Thompson solicitor affirmed an affidavit on 12 July 2023 (DX 1). He deposed that the Notice of Defence Response was prepared on the basis that the prosecutor had complied with its obligations under the CP Act and the Certificate of Disclosure in accordance with par 30(a) of Practice Note 16.
7. Mr Thompson annexed a letter dated 15 March 2023 in which the defendant asked the prosecutor to confirm that the prosecutor did not have in its possession any information, document or other thing that could be reasonably expected to assist the case for the defence or was required to be served as part of the prosecution case. By an email dated 16 March 2023 the prosecutor confirmed "there is nothing further for the Prosecutor to comply with par 29(c) of the Practice Note".

Technical Report of Inspector Beacham

1. The Technical Report of Inspector Beacham dated 23 April 2020 (MFI 4) was created as part of the investigation by SafeWork into the incident on 11 September 2019. The report was created for the purposes of SafeWork investigating the incident and considering what, if any, action it should take in relation to the incident. The report is 58 pages but its scope can best be understood by consideration of the Executive Summary on p 2 of the report. The Executive Summary reads as follows: "Executive Summary This report has been prepared as a result of an investigation into the incident at Enviro Pallets Pty Ltd, 59 Forrester Road St Marys NSW on 11th September 2019 where a crush injury occurred to the injured person while performing maintenance on plant. This report sets out the observations and conclusions made by the author in relation to the plant involved in the incident. The plant involved in the incident was a Viking Turbo 505 pallet assembly machine. The part of the plant where the incident occurred was underneath the bed conveyor of No.2 Nailing machine. The main hazards that can be accessed while working underneath the bed conveyor were nip points associated the conveyor's chain drive and crush hazards associated the Pallet Turner device that spins right next to the conveyor. It is concluded that the plant involved did not comply with all requirements set out in machine guarding standards and/or did not reflect common industry practice. There was no physical barrier to prevent access to underneath the bed conveyor where nip point and crush hazards were present. Other parts of the plant were guarded and/or safeguarded with either fixed or interlocked guards, or presence sensing controls. The plant had lockable isolator switches that could be used to disconnect all electrical power to the plant including the Pallet Turner device. The plant did not have a separate means for isolating power to only the Pallet Turner. The manufacturer's instructions includes safety instructions to make adjustments only when the plant is turned off and the isolator switches are locked in the 'off' position. The incident occurred when the injured person was undertaking adjustments to the bed conveyor. The adjustments were made when the bed conveyor was being incrementally operated by a second person. The injured person was located in a hazardous area when the machines Pallet Turner device moved unexpectedly, resulting in a crush hazard. Operation of the Pallet Turner device was not required to undertake adjustments to the bed conveyor. Electrical isolation of the Pallet Turner device would have prevented it from moving unexpectedly thereby eliminating the crush hazard. The observations contained within this report were made as a result of: inspection of parts of the plant, information and Photographs from Safe Work NSW inspectors, information from the plant supplier, reference to relevant industry standards and publications."
2. The purpose of preparation of the Technical Report can best be understood by consideration of the Objectives of the report, which are set out on p 6 as follows: "This report has been prepared as a result of an investigation into the plant involved in the above incident and aims to: - determine the functionality of the plant involved in the incident; - identify the hazards present within the plant; - identify the measures integrated within the plant to control the health and safety risks; - identify control measures that may have been used to control the health and safety risks; - identify legislation, published industry standards and/or industry practices relevant to the plant and the incident; and - determine whether the plant involved in the incident was compliant with relevant legislation, published industry standards and manufacturer's instructions at the time of the incident."
3. Inspector Beacham sets out his methodology, his observations, and the relevant industry standards and guidance material.
4. The conclusions reached in the report are expressed on p 32 as follows: "8. Conclusions 68. The designer and manufacturer of the plant did not use guarding to control the risks associated with crushing in the danger zone in accordance with clause 203 of the WHS Regulation 2017. 69. The designer and manufacturer had provided a means of isolating power to the danger zone for maintenance or cleaning when there was no need to operate the plant by incorporating a lockable electrical isolation switch to No.2 Nailing machine MCC. 70. The designer and manufacturer did not provide information regarding the hazard of the Pallet Turner operating unexpectedly during the jogging of the No.2 Nailing machine conveyor bed, or a means to control the associated risks in accordance with clause 210 (2) (c) of the WHS Regulation e.g. a separate electrical isolation for the Pallet Turner, control mode switching. 71. At the time of the incident and given the operational controls in place the only safe way to enter the danger zone would be to lock off the isolator on the No.2 Nailing machine MCC."
5. It is obvious from the form of the report that while Inspector Beacham was expressing his opinion in relation to the machine and its safety, he was not casting the report as a traditional admissible expert report, which must contain reasoning for all of the opinions and conclusions reached. This is understandable, since the report was produced at a time when the incident was being investigated, and well before there was a prosecution brought against Enviro or Mr Duffin.

Expert Report of Inspector Beacham

1. The Expert Report of Inspector Beacham dated 30 May 2023 (MFI 5) is the document in dispute on this application. It was prepared after Notice of the Defence Response was served and, I infer, as a result of full consideration being given by SafeWork to the admissibility of the Technical Report, if it were tendered at the trial. In par 5 of the Expert Report, Inspector Beacham says that his objective was to provide answers to a list of questions supplied by the solicitor for SafeWork. The list of questions is reproduced as Annexure C to the Expert Report. The 19 questions asked appear under the following headings: 1. Introduction, and training, study and experience. 2. Methodology, observations and relevant legislation, published industry standards and industry practices. 3. The risk to any Enviro Pallets worker.
2. Under this last heading, questions 14 and 15 deal with the hazards of the machine and the likelihood of the hazards occurring while maintenance and repairs were being carried out. Question 16 concerns the controls that Enviro had implemented to manage the risks of the machine. Question 17 concerns the controls that Enviro could have implemented to manage the risks associated with the machine. Question 18 concerns whether, at the time of the incident, the machine complied with relevant legislation, Codes of Practice, standards and practices.
3. The Expert Report is 110 pages, as compared with the 58 page Technical Report.
4. The conclusions expressed in the report can best be understood by consideration of the Executive Summary which appears on p 3. That Executive Summary is as follows: "1. Executive Summary 1. This expert report has been made at the request of the Department of Customer Service (NSW) in the matter of Safe Work NSW -v- Mark Duffin, District Court proceedings case number 21/256605. 2. I Peter John Beacham have gained experience in the safety of machinery as a SafeWork NSW inspector for the past 20 years and previously in private industry for 27 years in the safeguarding of machinery in the workplace. 3. This report is based on the documents, factual assumptions and questions provided as part of the letter of engagement. 4. On the 11th September 2019, Mr Mathew Spann (the injured person) was fatally injured (the incident) when working in part of a pallet making machine identified as a Viking Turbo 505 Pallet Making Machine (the machine) and I have concluded that: a) For the maintenance task being performed by the injured person at the time of the incident the likelihood of a severe injury was high. b) The incident would have been prevented by isolating motive power to that part of the machine that caused the injury, prior to doing the task. c) The designer/manufacturer of the machine had provided the means to isolate the motive power in the form of a lockable electrical isolation switch. d) The designer/manufacturer of the machine had provided manufacturer's instructions that the machine needed to be isolated when doing maintenance tasks. e) The provision of the lockable electrical isolation switch met the requirements of Work Health and Safety Legislation, Work Health and Safety Codes of Practice and Australian standards. f) Prior to incident the PCBU Enviro Pallets Pty Ltd (Enviro Pallets) would have needed to implement an isolation procedure and enforce the procedure for the maintenance task being performed to meet Work Health and Safety requirements and manufacturer's instructions. g) An assessment for reasonably foreseeable hazards in accordance with Part 3.1 of the WHS Regulation would have determined that being in the danger zone of the machine without isolation was unsafe. h) The provision of information, training, instruction and supervision would be required as part of implementing an isolation procedure."
5. Senior Counsel for Mr Duffin, in oral submissions, drew attention to paragraphs in the Expert Report which were not in the Technical Report, and to paragraphs which were in the Technical Report, but appear in a different or expanded form in the Expert Report. Because of the conclusion which I have reached on this application, I do not propose to analyse each and every difference between the two reports.
6. For present purposes, it is sufficient to say that the Expert Report does not go beyond the bounds of the case pleaded in the Summons against Mr Duffin. It does contain reasoning for opinions, which is something absent to a large extent in the Technical Report. It does cover additional matters, but nothing outside the bounds of the allegations made in the Summons. Of course, if the Expert Report in any way exceeded the boundaries of the Summons, those parts would be rejected or ignored as irrelevant.
7. The Expert Report does attempt to address the two bases for the objection outlined in the Notice of Defence Case ie lack of independence and relevance. In my view it goes further, both in providing reasons for opinions expressed, and in giving a more detailed consideration to the state of the machine at the time of the incident, and the steps which could have been taken to improve the safety of the machine.
8. Against that background I turn to whether the prosecutor can tender that report at the trial (subject to any objection based upon the rules of evidence) or whether the prosecutor should be confined to the tender of the Technical Report and should not be allowed to tender the Expert Report at the trial.

Submissions for SafeWork

1. Senior Counsel for SafeWork submitted as follows: 1. There is nothing in the Expert Report of Inspector Beacham which is different to his first Technical Report. 2. The Expert Report now contains reasoning for the opinions expressed in the Technical Report. 3. There is nothing in the words of the CP Act to indicate that the prosecutor cannot serve further evidence, even after the case management provisions have been complied with. 4. There is no authority in relation to the CP Act that says that the prosecutor cannot serve further evidence. 5. The defendant did not expose any of its case in the Notice of Defence Response in relation to the safety of the machine. All it did was say that it objected to the Technical Report of Inspector Beacham. The defendant did not say anything which would assist the prosecution in proving its case. 6. There is no prejudice to the defendant if the Expert Report can be used at the trial. The purpose of the case management provisions in the CP Act is to inform the other side of the case to be brought against it. 7. The court's Practice Note does not preclude service of an expert report prior to fixing the date for trial. 8. Now is not the time to be considering a costs order. There is no jurisdiction to make a costs order in relation to any costs thrown away and the court should reserve interlocutory costs to be dealt with at the conclusion of the trial.
2. Pursuant to leave granted to both parties, the prosecutor provided a short note concerning the decision in Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121. A defendant had objected to the prosecutor being allowed to serve additional evidence, in the form of supplementary affidavits, after the defendant had served its Notice of Defence Response in accordance with the case management provisions of the CP Act. The defendant argued that it was not the purpose of the disclosure orders "to permit the defendant's disclosure to then be used by the prosecutor as a springboard to file additional evidence".
3. The court rejected this argument and granted leave for the prosecutor to file the additional evidence. The court said at [28]: "By analogy, it may be said that, subject to the Court's control and supervision, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to a defendant's objections to the admissibility of prosecution evidence, particularly under the Division 2A regime where such objections are made at an early stage of the proceedings."
4. The court also said at [33] and [34]: "33 The legislative scheme by which each party gives early notice of objections to the admissibility of evidence, gives the other party the opportunity, by filing timely supplementary evidence-in-chief, to meet the objections (if it can), thereby avoiding disruption at, and possible adjournment of, the trial if such objections were not taken until the trial. The prosecution cannot impermissibly split its case by calling such evidence after the defence case: The Queen v Chin [1985] HCA 35, (1985) 157 CLR 671 at 684-685. 34 On discretion, it is true that the prosecutor is taking advantage of the defendant's disclosure to, as the defendant puts it, 'patch up' the prosecution case. But it is not doing so because its earlier evidence is grossly deficient nor has it acted in bad faith, and its ability to do so is the product of the statutory scheme. The proposed evidence is supplementary to that already filed. Although it is substantial and the defendant has not yet had the opportunity to analyse it in detail, the defendant can and should be protected in that regard by a timetable that gives it a fair opportunity to analyse it in detail. The defendant will incur additional costs, but the defendant can and should be protected by an order, which the prosecutor proposes, that protects it in respect of costs thrown away."
5. Senior Counsel for SafeWork, in the same note, gave reference to Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) [2015] NSWLEC 97 at [68] where the court said: "From the available caselaw, it would appear that the touchstone for the exercise of the court's discretion to grant leave to rely on further evidence under the Division 2A regime is that of fairness or justice as between the parties. Informing this exercise will be a variety of factors which will include consideration of the prejudice that will be suffered by the defendant if the evidence is permitted; the prejudice to the prosecutor if the evidence is excluded; the conduct of the parties to the proceedings to date; the delay caused by the grant of leave; the costs associated with the grant of leave [and] application of case management principles, having regard to the efficient dispatch of court business."
6. I respectfully agree with the approach of the Land and Environment Court in the cases discussed immediately above. I propose to follow the same course in determining the present application.

Submissions for Mr Duffin

1. Senior Counsel for Mr Duffin submitted as follows: 1. The prosecutor should not be allowed to rely upon the Expert Report. 2. The report was obtained after the Notice of the Defence Response was served. The prosecutor twice represented that it had served all of its material. It was the Notice of Defence Response that caused the prosecutor to go back to the expert. 3. A defendant is not required to take a step that assists the prosecutor to bolster the prosecution case. 4. There are differences between the two reports and there is additional material in the second report. 5. Prejudice arises because of the following: 1. New material has been served after Notice of the Defence Response. 2. The Expert Report is wider than just a revised report meeting the original objections made by the defendant. 3. The defendant has been put in the position of complying with court orders and disclosing the defence case. 4. The prosecution was triggered to review the Technical Report of Inspector Beacham and then obtain an expert report from him. 5. If the defendant had not drawn the Beacham report to the attention of the prosecutor, it would not have reviewed his report and obtained the Expert Report prior to the trial. 1. There is no authority to say that the prosecutor can serve additional evidence after the case management process has concluded. 2. The purpose of the case management provisions in the CP Act is to reduce delays. The provisions do not facilitate using a Notice of Defence Response to put on further evidence. 3. Section 257F of the CP Act gives the court power to order costs if a matter is adjourned. The defendant asks for an order for the costs of 31 May 2023 and the work done to prepare for that day. 4. In a supplementary note sent to my Associate by leave, the solicitors for Mr Duffin submitted as follows: "We confirm that counsel have been unable to locate any authorities in relation to the case management provisions of the Criminal Procedure Act 1986 (NSW) that have concluded that the provisions in Division 2A of Part 5 of Chapter 4 abrogate an individual's right to silence such that the provisions permit a prosecutor to rely on a defendant's response to obtain further evidence to prosecute an individual."

Consideration

1. I accept the submission made by Senior Counsel for Mr Duffin that the Expert Report contains material over and above that contained in the Technical Report. I reject the submission of Senior Counsel for SafeWork that all the Expert Report does is meet the objections in the Notice of Defence Response ie lack of independence and relevance. However, as I have indicated above, I take the view that the Expert Report is largely based on the Technical Report, and that the additional matters do not go outside the bounds of the pleaded allegations in the Summons. If I am wrong in that view, then a relevance objection can be taken at trial to parts of the Expert Report.
2. There is nothing in the words of the case management provisions in the CP Act which prevents a prosecutor serving supplementary or additional material after the case management procedure has concluded. If parliament had wanted the CP Act to prevent a prosecutor from obtaining additional evidence, it would have been simple enough to achieve that.
3. I reject the submission of Senior Counsel for Mr Duffin that somehow, the defendant has been compelled to assist the prosecutor to prove the prosecution case. The Notice served by the defendant was served pursuant to Consent Orders setting out a timetable for compliance with the case management provisions in the CP Act. While such notices are commonly misdescribed as a "Notice of Defence Case", that is not what they are. They do not set out the case which the defendant seeks to make at trial. They do not disclose any evidence that the defendant will raise in relation to the evidence disclosed by the prosecutor in the Notice of Prosecution Case. The document is correctly described as a Notice of Defence Response. It does no more than indicate which facts alleged by the prosecutor are admitted and which are disputed, and say which documents to be tendered by the prosecutor will be the subject of an objection. True it is that the objection taken to the Technical Report has caused SafeWork to look again at that report. The Expert Report, as I have indicated above, does more than deal with the grounds of objection indicated by the defendant. It contains additional material to "patch up" the prosecution case.
4. This case has not been set down for trial and is nowhere near coming to trial. The defendant has had since 31 May 2023 to consider the Expert Report and if needs be, can have more time to give consideration to the Expert Report as a result of this judgment. In those circumstances it is difficult to see how there is any prejudice to the defendant if leave is granted for the prosecutor to rely upon the report.
5. There would be prejudice suffered by the prosecutor if the evidence is excluded, as it may have difficulty relying upon the Technical Report, because it does not comply with the rules of evidence, particularly those which require an expert to give reasons for opinions expressed (although this is not an objection notified by the Notice of Defence Response).
6. I take into account the conduct of the parties to the proceedings to date. I have already recorded that both parties consented to the case management provisions of the CP Act applying. This was not a court-ordered timetable, it was a consent timetable.
7. There will be some delay in the matter coming to trial caused by a grant of leave to rely upon the Expert Report. Some of that delay has already occurred since 31 May 2023. The defendant should only need a short further time to consider the Expert Report.
8. There are costs associated with the grant of leave. In an ideal world the Expert Report of Inspector Beacham should have been commissioned before the prosecutor finalised its list of documents to be tendered. I propose to reserve the question of costs for determination by the trial judge. One of the matters to be taken into account in determining where costs should lie will be the ultimate worth and utility of the Expert Report.
9. I find that it would be in the interests of the efficient dispatch of court business to grant leave now to rely upon the Expert Report. To give a ruling now, as I have previously indicated, will enable both parties to prepare for trial without further interruption. Giving a ruling now will certainly inform the defendant of the entire prosecution case that he has to meet.
10. In granting leave to rely upon the report, I will make an order specifically preserving the right of Mr Duffin to take any objection to any part of the report which does not comply with the rules of evidence. A grant of leave simply means that the prosecutor can include the Expert Report in the material to be tendered at trial. The trial judge will have to determine any proper objection to any part of the report, where such objection is based upon the rules of evidence.

Orders

1. The orders of the court are: 1. Grant leave to SafeWork NSW to tender at the trial the Expert Report of Inspector Beacham dated 30 May 2023, without prejudice to the right of Mr Duffin to take objections based upon the rules of evidence. 2. Reserve the costs of 31 May 2023 and 13 July 2023. 3. Stand the proceedings over to the Work Health and Safety list at 9.30am on 7 August 2023.

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: 26 July 2023