Director of Public Prosecutions v Borghouts (Ruling)
[2022] VCC 2276
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-00411
| DIRECTOR OF PUBLIC PROSECUTIONS | Plaintiff |
| v | |
| Peter Borghouts | Defendant |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2022 | |
DATE OF RULING: | 16 December 2022 | |
CASE MAY BE CITED AS: | DPP v Borghouts (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2276 | |
RULING
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Subject:CRIMINAL LAW
Catchwords: Pre-trial ruling concerning admissibility of evidence - Prosecution under s 25 and s 26 of the Occupational Health and Safety Act 2004 (Vic.) – Challenge to admissibility of evidence – Admissibility of expert reports.
Legislation Cited: Occupational Health and Safety Act 2004 (Vic.); Evidence Act 2008 (Vic.)
Cases Cited:Haddara v R (2014) 43 VR 53; Kadir v The Queen (2020) 94 ALJR 168; R v Bauer (2018) 266 CLR 56
Ruling: The challenges to the admissibility of the evidence concerning Mr Shafner and the expert reports of Dr Peter Doherty are rejected.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr A Palmer KC and Ms French | Office of Public Prosecutions |
| For the Defendant | Mr R Taylor and Ms Grinberg | HWL Ebsworth Lawyers |
HIS HONOUR:
1Peter Borghouts was at all relevant times a director of Oris Australia Pty Ltd and managed its office at 47 Wellington Street St Kilda (workplace).
The Charges
2He is charged with two breaches of the Occupational Health and Safety Act 2004 (Vic) (OHS Act):
(a) As a person who had, to an extent, management or control of a workplace, he failed, between 1 January 2016 and 1 September 2016, to ensure so far as was reasonably practicable, that the workplace was safe and without risks to health; and
(b) As an employee he failed, between 1 January 2016 and 1 September 2016, to take reasonable care for the health and safety of persons who may be affected by his acts and omissions at the workplace.[1]
[1] Indictment J10192094.1
3The conduct that is alleged to constitute both of the charges is engaging in ‘persistent and repeated negative behaviours’ in the presence of employees at the workplace ‘including Sarah Bishop, Hillel Akiva Shafner and Jacek Joszczyk’.
4The alleged behaviours include using profane or sexualised language; speaking of women in a sexualised or derogatory way; making racist comments; denigrating current or former employees; denigrating customers of Oris; and throwing items at the work area of employees.[2]
[2] See particular 1 of charge 1 and particular 4 of charge 2.
5In respect of charge 1, it is alleged that ‘there was a risk of psychological injury to persons working at the workplace as a result of experiencing or being exposed to those behaviours…’.[3]
[3] Charge 1, particular 4 (emphasis added).
6In respect of charge 2, it is alleged that ‘there was a risk of psychological injury to those employees as a result of experiencing or being exposed to those behaviours…’.[4]
[4] Charge 2, particular 5.
7It can immediately be observed that the class of people said to have been placed at risk by the accused’s conduct is broader in relation to the first charge (‘persons working at the workplace’) than is the case in relation to the second (‘those employees’ - being the three identified).
8The charges are listed for a trial commencing on 13 February 2023.
The application before the court
9The accused raises two pre-trial issues for determination. The first concerns the scope of the case that the prosecution should be permitted to pursue in light of the way in which the committal proceeding was conducted. The second concerns the admissibility of two reports prepared for the prosecution by an expert witness.
10For the reasons that appear below, I reject the defence objections to the evidence concerning Mr Shafner and the evidence of Dr Doherty.
Procedural History
11It is necessary to set out the procedural history of the matter in some detail for reasons that will become apparent. There is a disagreement between the parties about one aspect of the history.
12Originally both Oris and the accused were charged with breaching the OHS Act. Mr Borghouts also faced certain charges filed by Victoria Police.[5]
[5] The history is set out in Exhibit A, an affidavit sworn by Colin Michael Almond on 10 November 2022 (Almond affidavit) at [4]-[13].
13A committal in relation to the three sets of charges was heard in the Magistrates’ Court between 6 November 2019 and 26 February 2021. An employee of Oris’s, Mr Shafner, was originally a witness for the prosecution at committal.
14In submissions filed with the court in relation to this application, the DPP submits that during the course of the committal, after discussion with legal representatives for Oris and the accused, the prosecution determined not to call Mr Shafner as a witness or rely on his evidence.[6]
[6] DPP submissions dated 19 October 2022 at [8].
15Mr Taylor, who appears with Ms Grinberg for the accused, submitted that the decision by the prosecution in relation to Mr Shafner was broader than this. He submitted that ‘the prosecution offer to abandon Mr Shafner … as a witness occurred in circumstances where his evidence and his credibility had become so compromised the prosecution did not wish to call him’.[7] Mr Taylor submitted that while the committal was in progress, ‘the prosecution sought an agreement from the defence that is the prosecution disclaimed any reliance on Schafner [sic.] and withdrew the Victoria Police charges, the defence would not seek costs from the Informant or the Victoria Police’.
[7] Outline of Pre-Trial Submissions concerning Hillel Shafner and Dr Peter Doherty dated 10 November 2022 (Defence outline) at [8].
16Mr Taylor further submitted that ‘after consideration and on the basis that allegations made by Schafner [sic.] would not proceed and no evidence concerning him would be relied upon, the defence agreed to the prosecution’s proposal’.[8]
[8] Defence Outline at [9] (emphasis added). The word ‘not’ did not appear in the written submissions but was added by Mr Taylor at the hearing – see T26.28
17The dispute between the parties about what was agreed is this. The prosecution submits that all it agreed to do was withdraw the statement of Mr Shafner from the brief whereas defence submits that, in addition, no other evidence concerning him would be relied upon. That is, no other witness would be asked about Mr Shafner or asked to describe any conduct of the accused directed at Mr Shafner.
18It is against this background that the first issue before the Court falls to be resolved. The issue concerns an objection by defence to the prosecution being able to rely on the evidence of two other employees of Oris, Sarah Bishop and Jacek Joszczyk, insofar as that evidence concerns Mr Shafner.[9] Examples of the impugned evidence are:
[9] The impugned evidence is that referred to in paragraphs 56-57, 58(b) and (c), 59-62, 69-70, the last five words of the first sentence of paragraph 71, and the second and third sentences of paragraph 78 of the Amended Summary of Prosecution Opening ‘ASOPO’.
(a) Observations by Ms Bishop that she witnessed the accused:
(i)throw empty wine bottles and lunch wrappers at Shafner’s desk and tell him to clean it up; and
(ii)encourage Shafner to eat products containing pork;[10] and
(b) Observations by Mr Joszczyk that he witnessed the accused:
(i)throw empty wine bottles and lunch wrappers at Shafner’s desk and tell him to clean it up;
(ii)throw a parcel at Shafner; and
(iii)make jokes about Shafner’s religion by removing labels off products that contain pork before trying to get him to eat it.[11]
[10] ASOPO at [58]
[11] ASOPO at [70], [71] and [78].
19There are two limbs to the accused’s argument that the prosecution should not be allowed to use this evidence. The first concerns the agreement that led to Mr Shafner’s statement being removed from the brief by the prosecution (which was referred to earlier).
20The accused submits that the prosecution is engaging in ‘sharp practice’ by seeking to adduce this evidence contrary to the agreement upon which the accused relied by (1) not seeking costs in relation to the withdrawn prosecution and (2) not seeking to cross-examine Mr Shafner further at committal.[12]
[12] Defence Outline at [10].
21Mr Taylor for the accused submitted that the appropriate remedy if I accept this argument would be a stay of the proceedings until such time as the evidence is removed from the case.[13] The court’s power to grant such relief derives from the court’s general power at common law to exclude otherwise admissible evidence in order that the accused receive a fair trial.[14]
[13] Transcript 29 November 2022, at 16.22
[14] Haddara v R (2014) 43 VR 53 at [16].
22It is therefore necessary to resolve the dispute about the scope of the agreement. Mr Taylor relied on the Almond affidavit in this regard.[15]
[15] Transcript 29 November 2022 at 15.24-27.
23Mr Almond deposes that he is a partner with the firm HWL Ebsworth Lawyers (HWL), solicitors for the accused.
24After setting out the history of the case, Mr Almond refers to a hearing before His Honour Magistrate McNamara on 22 February 2021. He deposes that Rebecca Young of HWL was at court and made a file note of what ‘Counsel for the Prosecution advised the Court’. Ms Young’s note records that the court was informed that ‘Mr Shafner was no longer part of this case’.[16]
[16] Almond Affidavit at [13]; the file note is reproduced as ‘exhibit CMA-1’ to the Almond affidavit.
25Mr Almond also refers to an email he received on 5 October 2020 from Ms Keogh-Barnes, the solicitor at WorkSafe responsible for the prosecution of the accused. Ms Keogh-Barnes confirmed that ‘Hillel Shafner will be permanently removed from the brief and the prosecution will not rely on any evidence by him’.[17]
[17] Almond affidavit at [11], emphasis added.
26This is the extent of the evidence before the court about the terms of the agreement. No-one who was a party to the agreement has given evidence.
27In these somewhat unsatisfactory circumstances, the Court is asked to determine the scope of the agreement. I consider that Ms Young’s file note is equivocal. The email sent by Ms Keogh-Barnes to Mr Almond is consistent with the agreement the prosecution contends was reached at the Magistrates’ Court. I am fortified in this view by the lack of any response to the email by Mr Almond to the effect that Ms Keogh-Barnes had mischaracterised the agreement.
28While it may be that Mr Almond genuinely believes that the agreement was as he contends in paragraph [16] of his affidavit, I am not satisfied on the evidence before the court that an agreement was reached under which the prosecution undertook not to rely on any evidence that concerned Mr Shafner. I therefore do not exclude the impugned evidence of the witnesses concerning Mr Shafner on the basis that, in seeking to lead it, the prosecution would be breaching an agreement it had reached with the accused.
29The second basis upon which Mr Borghouts submits this evidence should be excluded is the more conventional contention that its probative value is outweighed by the danger of unfair prejudice to him.[18]
[18] Evidence Act 2008 (Vic.), s 137.
30The ‘probative value’ of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.[19] I accept the submission of Mr Palmer, who appeared with Ms French for the Director, that the evidence is probative to a significant extent of whether the workplace was as psychologically safe as reasonably practicable. A jury could use the evidence to conclude that the workplace was not as psychologically safe as reasonably practicable, especially for Ms Bishop. As Mr Palmer submitted, evidence of conduct directed by the accused at Mr Shafner could be relevant to whether there was a risk to Ms Bishop.
[19] Evidence Act 2008 (Vic.), Dictionary.
31During the hearing on 29 November 2022, Mr Palmer clarified that the prosecution’s intention in relation to this evidence is limited to leading evidence about observed conduct. The prosecution will not seek to adduce evidence from these witnesses about what Mr Schaffner said.[20] Clearly the evidence could not be led to establish Mr Shafner’s state of mind. That evidence may be necessary to establish that he felt unsafe as a result of the conduct. In this regard, Mr Palmer made the appropriate concession during the hearing that the prosecution case would not include the allegation that ‘Shafner was also deeply affected by his interactions with Borgouts’.[21]
[20] Transcript 29 November 2022 at 25.14-26.
[21] Mr Palmer deleted the first sentence of paragraph [59] of ASOPO.
32I therefore consider that the evidence has significant probative value. Is that value outweighed by unfair prejudice to the accused? As Mr Palmer pointed out, the section is not concerned with unfairness per se. What is required is unfair prejudice. This is more than just that the evidence makes it more likely that the accused will be convicted. It requires a conclusion that the jury will use the evidence improperly in some way.[22]
[22] See R v Bauer (2018) 266 CLR 56 at [73].
33Mr Taylor argued that the unfair prejudice is that Mr Shafner will not be available to be cross examined about his relationship with Mr Borghouts which Mr Taylor explained would contextualise the relationship between the two men. Mr Taylor referred to a number of emails that inform a proper understanding of that relationship and submitted that it was unfairly prejudicial that he will be unable to put the emails to Mr Shafner in cross-examination. I understand that what this evidence may prove is that the conduct of the accused was not offensive to Mr Shafner but rather just playful hijinks in the workplace.
34However, as Mr Palmer submitted, Mr Taylor will be able to tender the emails through the informant who obtained them as part of his investigation.[23] This will ameliorate any prejudice. In my view, I therefore consider that whatever unfair prejudice may be occasioned by the inability to cross examine Mr Shafner does not outweigh the probative value of the evidence.
[23] OHS Act, s 100.
35Further, there is an air of unreality about this submission. The accused will not have to contend with the evidence of Mr Shafner in the first place. As Mr Palmer pointed out, this is not a case where the accused wants Mr Shafner to be called by the prosecution. The contrary is in fact the case. Not being able to cross examine a witness is part and parcel of the removal of that witness from the brief.
36It is for this reason that I do not accept the accused’s submission that the prosecution leading evidence about Mr Shafner from other witnesses ‘defeats the rules concerning witnesses who are unavailable for some good reason’.[24] Section 65 of the Evidence Act 2008 does not assist the accused’s argument.
[24] Defence outline at [19].
37I emphasise that the court is necessarily making an assessment of potential unfairness at a preliminary stage of this matter. If the unfairness of which the accused complains becomes more manifest at the trial, there are ways in which the trial judge could ameliorate it. One way would be to limit the use to be made of the evidence under s 136 of the Evidence Act 2008. A further way could be by the trial judge giving the jury a direction under s 43 of the Jury Directions Act 2015 (Vic.) concerning the prosecution’s failure to call Mr Shafner.
38I therefore reject the challenge at this stage of the proceedings to the evidence of Ms Bishop and Mr Joszczyk that concerns Mr Shafner.
The objection to Dr Doherty’s evidence
39The second preliminary ruling the court has been asked to make concerns the evidence of an expert witness, Dr Peter Doherty. The accused contends that the court should prevent the prosecution from calling Dr Peter Doherty as a witness.
40Dr Doherty is a consultant psychiatrist who has provided two expert reports that are in the brief.[25] In summary, in his two reports Dr Doherty expresses the opinion that the alleged behaviour of the accused as described in the statements of the Oris employees and in various emails ‘would likely cause distress to employees’ and are ‘intimidatory, denigrating and victimising’. Further, he opines that such behaviours ‘carry a clear and foreseeable risk to the health and safety of employees’ and have ‘directly caused psychological harm and psychiatric illness’.[26]
[25] Report of Associate Professor Peter Doherty dated 11 February 2019, (first Doherty report) (Depositions 790-793) and Report of Associate Professor Peter Doherty dated 2 August 2021 (second Doherty report).
[26] First Doherty report, p 4.
41Mr Borghouts contends that the prosecution should not be permitted to call Dr Doherty, and the two Doherty reports should be excluded, on the basis that:
(a) The factual basis of the opinion has been ‘substantially eroded’ such that there is ‘no proper basis for his opinions’;
(b) The probative value of the evidence is outweighed by its prejudicial effect; and
(c) The evidence ‘circumvents s 65 of the Evidence Act 2008.’ [27]
[27] Defence outline para [23].
Factual basis
42As the first Doherty report makes clear, Dr Doherty was briefed with a number of witness statements and other documents. Among the statements were a statement of Hillel Shafner dated 10 February 2017 and a statement of Genevieve O’Reilly dated 24 February 2017.[28] Dr Doherty refers to and relies upon the two statements in support of the opinions he expresses in his first report.[29]
[28] See first Doherty report, p 2.
[29] See first Doherty report at paras [14] and [17] respectively.
43On 2 June 2021, Ms Finnigan, principal solicitor for the OPP, wrote to Dr Doherty and asked him to express a fresh opinion disregarding the previously read evidence of Mr Shafner and Ms O’Reilly as well as the report of Dr Cotton where it relates to the evidence. This was a reference to a report from another expert Dr Cotton. I will discuss the significance of that report later in this ruling.
44On 2 August 2021, Dr Doherty provided such a ‘fresh opinion’ based only on the evidence of Sarah Bishop and Jacek Joszycyk.
45Neither Mr Shafner nor Ms O’Reilly will be called as witnesses in the prosecution case. The defence contends that, in these circumstances, there is no proper basis for the opinions expressed in the second Doherty report. In support of this contention, the court was referred to the following evidence from the cross-examination on 3 December 2021 of Dr Doherty pursuant to s 198B of the Criminal Procedure Act 2009:
Q: Professor Doherty, did you consider whether or not it was feasible for you to disregard the evidence of Mr Schaffner and Ms O'Reilly or that you may still have been influenced by it?---I think it was feasible to disregard it but, you know, I - I remember my first report. It would have been in the back of my mind what they wrote in their statements and what I wrote in my first report. I - I could not delete that from my memory.[30]
[30] Transcript 3 December 2021 at 24.4-12.
46I also note that in re-examination Dr Doherty was asked the following question and gave the following answer:
Q: Associate Professor, just picking up on that last answer, when you prepared your second report, the supplementary report, what role, if any, did the evidence of Witnesses Schaffner and O'Reilly play in the formation of your opinions expressed in that report?---They played … no role and no significant - no role … to any note at all.[31]
[31] Transcript 3 December 2021 at 24.21-27.
47I consider that there is nothing improper or unusual in an expert witness who has expressed an opinion on one factual basis being asked to express an opinion on a different factual basis. That is all that has occurred in relation to Dr Doherty. He can be cross examined about this, and the evidence he has previously given, at trial and the jury will no doubt have regard to it in assessing the weight to be given to his opinions. I do not consider that it raises a question about the admissibility of those opinions.
Dr Cotton
48In addition to the materials described earlier, Dr Doherty was also briefed with a report dated 7 March 2017, entitled ‘WorkSafe and Oris Australia’ prepared by Dr Peter Cotton. Dr Cotton, an organisational psychologist, had been engaged by WorkSafe to provide this report but passed away subsequently.
49In his first report, Dr Doherty refers to the report of Dr Cotton and notes Dr Cotton’s opinion that the behaviours of the accused ‘directly generated significant psychological health and safety risk’.[32] Dr Doherty states that he agrees with the conclusion drawn by Dr Cotton.[33]
[32] First Doherty report at [18]; see also at [24].
[33] First Doherty report at p 4.
50At the hearing conducted on 3 December 2021 pursuant to s 198B of the Criminal Procedure Act 2009, Dr Doherty agreed with the proposition that he formed his opinion on the basis of the witness statements ‘and then read Dr Cotton’s report’.[34] He further agreed with the proposition that his ‘conclusions were based not on Dr Cotton’s report but on the witness statements [he] read’.[35]
[34] Transcript 3 December 2021 at 11.7-10
[35] Transcript 3 December 2021 at 11.24-26.
51Mr Taylor argues that it is unfair that he will be unable to cross examine Dr Cotton in circumstances where Dr Cotton’s opinions will become apparent to the jury.[36]
[36] Defence outline at [22].
52In response to a question from the court, Mr Palmer indicated that the prosecution will not seek to rely on Dr Cotton’s report; nor will the prosecution inform the jury about that report having been provided to Dr Doherty.
53It therefore appears that the only way the jury will become aware of Dr Cotton’s involvement in the case will be if defence refers to Dr Cotton’s report in cross examination of Dr Doherty. I anticipate that the defence may want to challenge Dr Doherty’s opinion on the basis that it is not his own but really Dr Cotton’s. I accept that the defence to some extent finds itself ‘between the devil and the deep blue sea’ as Mr Taylor put it at the hearing.[37] Counsel cannot challenge Dr Doherty on this basis without drawing attention to Dr Cotton’s report and then cannot cross-examine Dr Cotton.
[37] Transcript 3 December 2021 at 34.16.
54Once again, however, there is an air of unreality in this complaint of unfairness, as the jury becoming aware of Dr Cotton is within the control of defence counsel. While defence counsel has a forensic decision to make, that is hardly uncommon in a criminal trial.
55This conundrum is not a basis to exclude the evidence of Dr Doherty under s 137 of the Evidence Act 2008 in my consideration.
Improperly obtained evidence
56Mr Borgouts’ final argument is that the court should exclude the evidence of Dr Doherty pursuant to the discretion conferred by s 138 of the Evidence Act 2008.
57Section 138 relevantly provides:
Evidence that was obtained—
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law—
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
58Mr Borgouts argues that the Doherty reports were obtained ‘improperly’ by the prosecution within the meaning of s 138(1)(a). The impropriety is said to be a failure to comply with this Court’s Practice Note PNCR-1 of 2014, ‘Expert Evidence in Criminal Trials’. The Practice Note provides that ‘an expert has an overwhelming duty to assist the court impartially by giving objective unbiased opinion on matters within the expert’s specialised knowledge’.[38] The breach is said to be that the evidence of Dr Doherty is not objective and this lack of objectivity is the fault of those who provided him with Dr Cotton’s report.[39]
[38] Practice Note PNCR-1 of 2014, p 3.
[39] Transcript 29 November 2022, p 37.16-18
59The Practice Note can be put to one side. It imposes no obligations on a party seeking an expert report and s 138 is concerned with the behaviour of those who ‘obtain’ evidence. In this context that can only mean those who requested Dr Doherty’s opinion.
60Was the provision of Dr Cotton’s report to Dr Doherty by the prosecution otherwise ‘improper’ within the meaning of s 138(1)?
61‘Improper’ in s 138(1) is not defined but is to be determined, when police investigators are involved, by reference to ‘minimum standards of acceptable police conduct’.[40]
[40] Kadir v The Queen (2020) 94 ALJR 168 at [14].
62Understood in this way, I consider that there is nothing ‘improper’ in a solicitor for the DPP or WorkSafe asking an expert to consider the view of another expert even if that other expert has passed away. Of course, that the expert has considered the views of another expert may appropriately be the subject of cross examination and may affect the weight of the opinions they express.
63Even if it was ‘improper’ in some way for the prosecution to have provided Dr Cotton’s report to Dr Doherty, Mr Taylor did not contend that the impropriety was either deliberate or reckless within the meaning of s 138(3)(e).[41] Mr Taylor also accepted that the probative value of the evidence is high within the meaning of s 138(3)(a).[42] I also consider that the evidence is important in the proceeding.[43]
[41] Transcript 29 November 2022, p 37.14-15.
[42] Transcript 29 November 2022, p 38.10-11
[43] See Evidence Act 2008 (Vic.), s 138(1)(b).
64The application of the non-exhaustive list of factors in s 138(3) to such a low level ‘impropriety’ will generally lead to a conclusion that the evidence should not be excluded.[44]
[44] Kadir v The Queen (2020) 94 ALJR 168.
Conclusion
65For these reasons, the court rejects the application to exclude:
(a) References in the prosecution case to Mr Shafner; and
(b) The evidence of Dr Peter Doherty.
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