SafeWork NSW v Paul Whitmarsh

Representation: Counsel:
Mr M Cahill (Prosecutor)
Mr I Latham (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Wotton Kearney (Defendant)

File Number(s): 2023/27880

Publication restriction: Nil

JUDGMENT

Introduction

1. On 25 January 2023 the prosecutor SafeWork NSW (SafeWork) commenced these proceedings by a Summons and a Statement of Facts. On 9 March 2023 SafeWork served the Brief of Evidence.

2. On 11 June 2024 at a Directions Hearing before Judge Scotting, counsel for the defendant Mr Whitmarsh entered a plea of not guilty.

3. Between 26 August 2024 and 12 December 2024 a series of procedural orders were made:

4. The proceedings were listed for trial for a period of 4 weeks commencing on 31 March 2025.

5. SafeWork was required to serve by 21 October 2024 a Notice of Prosecution Case under s 247E of the Criminal Procedure Act 1996 (NSW) (the CP Act).

6. The defendant was required to serve by 31 January 2025 a Notice of the Defence Response under s 247F of the CP Act, a copy of any report prepared by an expert who Mr Whitmarsh intended to call at the trial, and notices of any consent which Mr Whitmarsh proposed to give under s 247K(L) of the CP Act.

7. A Preliminary Conference was to be held between the parties in accordance with s 247H of the CP Act, no later than 24 February 2025.

8. The Preliminary Conference Form under s 247H(8) of the CP Act was to be filed by 3 March 2025.

9. On 12 December 2024 and 18 February 2025 the parties were granted short consent extensions of time to comply with the above timetable.

10. This judgment concerns a Notice of Motion filed by Mr Whitmarsh asking the court to determine the admissibility of a report of Mr Mark Tobin, upon which the prosecutor SafeWork wishes to rely at trial. Mr Whitmarsh moves upon a Notice of Motion filed on 5 March 2025 and relies on the Affidavit of Mr Zisis solicitor affirmed on 5 March 2025 (DX1) and Exhibit LZ-1 to that Affidavit (DX2). SafeWork relies upon the Affidavit of Mr Sorrenson solicitor dated 7 March 2025 (PX1).

Notice of Prosecution Case

6. The Notice of Prosecution Case served on 18 October 2024 included:

7. A proposed Agreed Statement of Facts.

8. A proposed list of documents.

9. A proposed list of questions to be asked of an expert by SafeWork, with a view to obtaining a new report.

10. A Certificate of Disclosure.

11. A link to folder titled ‘Supplementary Materials’.

12. The Notice of Prosecution Case advised that an expert report of Mr McPherson, originally served with the Brief of Evidence, together with a Supplementary Expert Report of Mr McPherson (served on 29 April 2024) would be relied upon by SafeWork at the Hearing. SafeWork advised that it did not intend to rely on draft reports of Mr Gray, which had been served with the Brief of Evidence. After stating this, the Notice of Prosecution Case said:

“Rather, the Prosecutor intends to rely on a narrower Expert Report regarding whether it would have been reasonably practicable to engage, an appropriately qualified, trained and equipped dive team to assist in the planning, preparation for and conduct of the lifting of vessel.”

8. In his affidavit (PX1, par 11) Mr Sorrensen provides an explanation for the decision of SafeWork not to rely upon the served reports of Mr Gray. He says that the reports were not written in admissible form. Mr Gray did not provide reasons for his opinions.

9. The Notice of Prosecution Case enclosed the questions to be asked in that proposed report and said, “This expert report will be provided as soon as possible.”

Defence Response

10. In the Defence Response served on 31 January 2025, Mr Whitmarsh stated that he did not consent to SafeWork introducing a further expert report into the proceedings.

The Tobin Report

11. The new expert report dated 10 February 2025 by Inspector Mark Tobin (the Tobin Report) was served by email on 10 February 2025. On 25 February 2025 Mr Zisis sent an email indicating that Mr Whitmarsh objected to the prosecutor relying upon the Tobin Report. Additional documents required for a complete understanding of the Tobin Report (the letter of instruction, a complete Annexure D and a CV) were not served until 7 March 2025.

12. In his Affidavit Mr Zisis points out that the Tobin Report was served:

13. One year and 11 months after the service of the Brief of Evidence.

14. Seven months and 30 days after Mr Whitmarsh entered a plea of not guilty.

15. Three months and 23 days after the Notice of Prosecution Case was served.

16. In his Affidavit Mr Zisis says that had the Tobin Report been provided at the time of service of the Notice of Prosecution Case, the defendant could have taken steps to procure an expert report in response to the Tobin Report and engaged an expert to give evidence at the hearing. Mr Zisis says that procuring an expert report at this stage would take two to three months. Mr Zisis says that if the Tobin Report is allowed into evidence, the hearing dates will need to be abandoned and the proceeding relisted at a later date, which will prejudice the defendant in terms of delay and costs.

The Legislation

14. Part 5 of the CP Act deals with the summary jurisdiction of, inter alia, the District Court. Division 2A of Part 5 is headed “Case Management Provisions And Other Provisions To Reduce Delays In Proceedings”.

15. Section 247A(c) of the CP Act provides that the Division applies in proceedings before the District Court in matters brought under s 229B(1)(b) of the Work Health and Safety Act 2011 (NSW) (the WHS Act).

16. Section 247B of the CP Act sets out the purpose of the Division as follows:

247B Purpose

(1) The purpose of this Division is to reduce delays in proceedings by--

(a) requiring certain preliminary disclosures to be made by the prosecution and the defence before the proceedings are heard, and

(b) enabling the court to undertake case management where suitable in those proceedings, whether on its own motion or on application by a party to the proceedings.

(2) Case management measures that are available to the court under this Division include the ordering of preliminary hearings, preliminary conferences and further preliminary disclosure. The court has a discretion in determining which (if any) of those measures are suitable in the proceedings concerned.

17. Section 247E of the CP Act deals with the contents of a Notice of Prosecution Case to be given to the defendant. It specifically provides that one category of documents which must be provided is a copy of each report by an expert witness proposed to be called at the hearing by SafeWork – s 247E(1)(h) of the CP Act.

18. With a view to reinforcing the Case Management Provisions of the CP Act, the Chief Judge of the District Court promulgated the District Court Criminal Practice Note 16 dated 4 June 2021 dealing with Work Health and Safety prosecutions. Clause 4 of the Practice Note provides that its purpose is to reduce delays in Summary WHS prosecutions by implementing the preliminary disclosure and Case Management Provisions of the CP Act. Clause 4 states that this is “to ensure that criminal proceedings are dealt with in a just and timely way”.

19. Clause 8 of the Practice Note provides that it is the responsibility of each party and their legal representatives to consider the directions appropriate to be made in a particular case “to ensure that criminal proceedings are dealt with in a timely way and as efficiently as possible”.

20. By Clause 35 of the Practice Note, parties have general liberty to restore on three days notice, or sooner if urgency requires it. No such application was made by SafeWork to restore the matter to the list to deal with the proposed late service of the Tobin Report.

Affidavit of Mr Sorrenson

21. The affidavit of Mr Sorrenson solicitor (PX1) sets out a procedural history of the matter, in similar terms to that contained in the affidavit of Mr Zisis.

22. Nowhere in the affidavit of Mr Sorrenson is there an explanation as to why the Tobin Report was not obtained much earlier. Nor is there any explanation why, having foreshadowed the obtaining of a new report in the Notice of Prosecution Case dated 18 October 2024, it took until 10 February 2025 to serve the Tobin Report. Mr Sorrensen does explain that the need to serve the additional documents was simply an oversight on his part.

23. As I put to counsel for SafeWork during the hearing of the motion, if the problem with the reports of Mr Gray was their form (and in particular the absence of reasons to support his opinion), that was a flaw which existed when they were created. Further, by the time the Brief of Evidence was served, the matter was in the hands of experienced lawyers for SafeWork. The admissibility problems with the Gray reports were there to be seen back in March 2023 when the Brief of Evidence was served. The problem had become acute by June 2024 when a plea of not guilty was entered.

Issue Raised by Mr Whitmarsh

24. In relation to the Tobin Report, counsel for Mr Whitmarsh submitted orally and in writing (MFI 1) that the report should be excluded from evidence because of late service. If the report is admitted into evidence and the trial proceeds as planned, then the defendant will be forced to cross-examine Mr Tobin without its own expert (and expert report) to answer the Tobin opinions. That is significant prejudice. I accept that submission.

Consideration

25. It is axiomatic that a defendant facing a criminal charge must know the case he has to meet, and must have sufficient opportunity to prepare to defend the charge. To allow the Tobin Report into evidence and to allow the trial to proceed on the allocated dates would offend both fundamental principles.

26. Both counsel raised the alternative course of vacating the trial dates, allowing the tender of the Tobin Report, and providing the defendant with time to engage his own expert.

27. The reality is that this would mean that the case does not come on for hearing until 2026. Some of the court time set aside for the trial, to start in a few weeks, would be wasted. Both sides would incur additional costs, and a costs order may not fully compensate Mr Whitmarsh for the expense incurred. Mr Whitmarsh would have the undoubted stress of a year-long delay in facing a serious criminal charge. The most important factor to be considered is the deleterious effect which delay has on the memory of witnesses. The incident which is the subject of these proceedings occurred on 27 January 2021, over four years ago. Another year of delay is not going to improve anyone’s memory.

28. As recited above, the admissibility problems with the reports of Mr Gray have been known to SafeWork for some years. I find that no explanation has been provided for the delay in fixing the problem. In my view SafeWork should not have joined in asking for a trial date, until it could assure the defendant, and the court, that it was ready to proceed without delay.

Conclusion and Orders

29. For these reasons I find that SafeWork should not be allowed to tender or rely upon the Tobin Report. The trial will proceed without it. In my view Mr Whitmarsh should have the costs of the Motion, but in accordance with usual practice I will reserve costs, to be dealt with at the conclusion of the proceedings.

30. The orders of the court are:

31. SafeWork NSW cannot tender or rely upon the report of Inspector Tobin dated 10 February 2025, or call him as a witness.

32. Reserve the costs of the Motion.

33. Liberty to apply to my Associate.

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