Director of Public Prosecutions v Nordic Elevators (Ruling No 2)
[2025] VSC 79
•6 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0307
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| NORDIC ELEVATORS PTY LTD | Accused |
S ECR 2023 0308
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| NORDIC ELEVATOR SERVICES PTY LTD | Accused |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 February 2025 |
DATE OF RULING: | 6 March 2025 |
CASE MAY BE CITED AS: | DPP v Nordic Elevators (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 79 |
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CRIMINAL LAW – Workplace manslaughter – Evidence – Admissibility – Hearsay – Admissions – Where deceased died of electrocution when servicing car lift – Where following death accused companies each made representation as to systems of work – Where representations were potentially inculpatory and exculpatory – Whether representations are admissible as admissions – Whether incriminating conduct and Part 4 Div 1 of the Jury Directions Act 2015 (Vic) applies – Whether admissions of committing offence or element of offence – Whether probative value of representations outweighed by prejudice – Evidence Act 2008 (Vic) ss 81, 137 – Occupational Health and Safety Act 2004 (Vic) s 39G – Jury Directions Act 2015 (Vic) s 18.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G Livermore SC with Mr D Chisholm | Office of Public Prosecutions |
| For the Accused Companies | Mr R O’Neill SC with Ms A. Dixon | Moray & Agnew |
HIS HONOUR:
A. Introduction
Adam Pasek died on 22 March 2021 while he was attempting to repair a car elevator at premises in West Melbourne. As set out in my earlier ruling DPP v Nordic Elevators (Ruling No 1) [2024] VSC 813R, he was doing so pursuant to his employment with Nordic Elevators Pty Ltd (‘NE’), although the work itself was for the benefit of the related company Nordic Elevator Services Pty Ltd (‘NES’). It seems that he was electrocuted while in the process of changing a piece of equipment on a switchboard. He was a 21-year-old fourth year apprentice electrician and was working alone. The Director of Public Prosecutions (‘the DPP’) has charged NE and NES with offences under ss 21, 23 and 39G of the Occupational Health and Safety Act 2004.
In the course of its investigation, the Victorian WorkCover Authority utilised its statutory power to require NE and NES to answer questions. A dispute has arisen as to whether particular questions and answers are admissible. The relevant question to NE and to NES was in the following terms:
Between 1 March 2018 and 22 March 2021, did any person employed or engaged by [NE] and/or [NES] provide supervision to Adam Pasek whilst he was on-site and was performing electrical work?
a. If so did that person hold an “A” Class Electrical License?
NE answered (through its lawyers):
The system of work in place was that Adam Pasek was to do electrical work at times where a person holding an “A” Class Electrical License was on-site.
NES answered (through its lawyers):
The system of work in place was that Adam Pasek was only to do electrical work at times where a person holding an “A” Class Electrical License was on-site.
I observe that the answers are, at least to some extent, non-responsive. I put that to one side. Also, no submission was made that the answers are inadmissible by reason of their being obtained pursuant to some compulsory investigatory process.
This ruling concerns whether the answers may be tendered by the prosecution. To be admissible, the answers must both be relevant and fall within an exception to the rule against hearsay. NE and NES deny that the answers are relevant. The prosecution contends that the answers fall within the exception to the hearsay rule for admissions.[1] NE and NES contend, in the alternative, that if the answers are admissible as admissions they are ‘implied admissions’ and subject to the restraints imposed by Div 1, headed ‘Post-offence conduct’, of Part 4 of the Jury Directions Act 2015. Finally, they submit, again in the alternative, that the answers should be excluded under s 137 of the Evidence Act 2008 because their probative value is outweighed by the danger of unfair prejudice.
[1]Evidence Act 2008 (Vic), s 81.
B. The issues that will be in dispute in the trial
NE has said it will plead guilty to breaching s 21(1) of the Occupational Health and Safety Act 2004, which required it, so far as was reasonably practicable,[2] to provide and maintain for its employee Mr Pasek a working environment that was safe and without risks to health. The relevant particulars to the charge are that it was necessary for NE to provide Mr Pasek with effective supervision including by an electrician holding an A Grade licence but that it failed to do so.
[2]‘Reasonably practicable’ is defined in s 20(2) of the Occupational Health and Safety Act 2004 (Vic).
NES has said it will plead guilty to breaching s 23(1) the Occupational Health and Safety Act 2004, which required it to ensure that Mr Pasek, who was not an employee but was performing work for it, was not exposed to risks to his health or safety arising from the conduct of its undertaking of servicing elevators. The relevant particulars to the charge are that it was reasonably practicable for NES to provide and maintain a system of work in which electrical work was only carried out by persons who were A Grade licensed electricians but that it failed to do so.
NES is also charged with a breach of s 21(1) of the Occupational Health and Safety Act 2004, which is a provision that imposes a duty on employers to its employees. I have been told that NES intends to plead guilty to this charge too, but this is subject to discussion about whether the two can be rolled into a single charge. For present purposes, it is sufficient to note that the particulars to the charge against NES for breach of s 21(1) of the Occupational Health and Safety Act 2004 are in essentially the same form as the particulars to the charge against it for breach of s 23(1) of the Occupational Health and Safety Act 2004.
Both NE and NES indicated they intend to plead not guilty to charges against them for ‘workplace manslaughter’, that is, that they breached s 39G(1) of the Occupational Health and Safety Act 2004. To establish workplace manslaughter, the prosecution is required to prove that NE or NES engaged in conduct that was ‘negligent’, that constituted a breach of a duty owed to Mr Pasek, and caused his death. That they were in breach of duties owed is not an issue, as reflected by their intention to plead guilty to the charges referred to above. For NE or NES’s conduct to be ‘negligent’, it must involve:[3]
(a) ‘a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances in which the conduct was engaged’; and
(b) a high risk of death or serious illness.
[3]Occupational Health and Safety Act 2004 (Vic), s 39E(1).
The particulars to the workplace manslaughter charges repeat the particulars to the other charges, but extend to include assertions that the breaches identified involved a great falling short of the standard of care required and a high risk of death or serious injury. It follows that the workplace manslaughter charges will turn on, respectively, whether:
(a) NE’s failure to provide Mr Pasek with effective supervision by an A Grade electrician involved a ‘great falling short’ of the standard required and, if so, whether it involved a high risk of death or serious illness; and
(b) NES’s failure to and maintain a system of work in which electrical work was only carried out by persons who were A Grade licensed electricians involved a ‘great falling short’ of the standard required and, if so, whether it involved a high risk of death or serious illness.
Clearly enough, this will require value judgements on the part of the jury applying community standards and assessed in all the circumstances.
C. Are the answers relevant?
The jury could rationally infer from the answers that Mr Pasek’s death occurred in circumstances where:
(a) It was reasonably practicable to have a system of work in place where he did not perform electrical work unsupervised;
(b) NE and NES were aware that such a system was required and that Mr Pasek should have been working under supervision; and
(c) NE and NES sought to implement, or perhaps sought to maintain and to enforce, such a system.
The first of these three is, arguably, not in issue in light of the concessions that will accompany the anticipated pleas of guilty. But the last two are matters to which the jury could properly have regard when assessing the extent to which NE or NES’s conduct, in allowing a situation to arise where Mr Pasek was working without supervision that day, fell short of the standard of care that would have been taken by a reasonable person in the circumstances. They might also be considered by the jury when determining the extent to which the failure to have such a system in operation that day involved a risk of death or serious illness. Accordingly, the answers are relevant.
D. Are the answers ‘admissions’ and thus within the exception to the rule against hearsay?
The answers, if tendered by the prosecution, would be hearsay and thus inadmissible unless they fall within the exception for admissions. An admission for this purpose is a previous representation that is ‘adverse to the person’s interest in the outcome of the proceeding’.[4] NE and NES submit that the answer is not an admission but is exculpatory.
[4]The word ‘admission’ is defined in the Dictionary in the Evidence Act 2008 (Vic) to mean ‘…a previous representation that is—(a) made by a person who is or becomes a party to a proceeding (including an accused in a criminal proceeding); and (b) adverse to the person's interest in the outcome of the proceeding’.
The fact that the prosecution wishes to rely on the answers, and NE and NES wish to preclude the prosecution from relying on the answers, suggests that the answers are probably adverse to NE’s or NES’s interest in the outcome of the proceeding. Counsel for NE and NES explained that their concern was that the answers, if tendered, could be used by the jury to conclude that NE or NES had lied and that this could result in prejudice. I return to this in Part E below. I put these matters aside for the moment.
As noted above, the jury could rationally infer from the answers that Mr Pasek’s death occurred in circumstances where:
(a) It was reasonably practicable to have a system of work in place where he did not perform electrical work unsupervised;
(b) NE and NES were aware that such a system was required and that Mr Pasek should have been working under supervision; and
(c) NE and NES sought to implement, or perhaps sought to maintain and to enforce, such a system.
These inferences are contrary to the interests of NE and NES because they make it more likely that the jury might find, if it is accepted that Mr Pasek was not working under the supervision of a licensed electrician when he died, that NE and NES had greatly fallen short of the standard of care that would have been taken by a reasonable person in the circumstances, and make it more likely that the jury might find that their failure involved a high risk of death or serious injury. In that way, they satisfy the definition of an ‘admission’ for the purposes of the exception to the rule against hearsay.
The answers could also be used by the jury to find that NE and NES in fact had in place an appropriate system or at least intended to have such a system (albeit that it may not have been adequately enforced or maintained on this occasion). In that sense, the answers are open also to be used by the jury in NE and NES’s favour and as showing that although they may have fallen short on this occasion, their breaches looked at in context did not constitute a great falling short of the standard of care. The question of admissibility where there are both inculpatory and exculpatory representations ordinarily arises when the exculpatory representations are separate from but qualify or explain the admission associated with the inculpatory representation. In such cases, the exculpatory representations are admissible if it is reasonably needed to refer to them in order to understand the admission.[5] But my attention was not drawn to any authority that considered what should occur when an express and apparently exculpatory representation carries with it implied representations that operate as admissions, that is, where the very same phrase or set of words may be both adverse to the representor’s interest in the outcome of the proceeding and in the representor’s interest in the outcome of the proceeding.
[5]Evidence Act 2008 (Vic), s 81(2). See also, eg: R v Ferri (2019) 3 Qd R 496, 508 [44] (Sofronoff P); R v Tozer [2002] 1 NZLR 193, 199 [23] (Richardson P).
I consider, applying first principles and the terms of s 81 of the Evidence Act 2008, that in such a circumstance the prior representation is admissible – and that the exception to the hearsay rule is engaged – if it is reasonably open to a jury to use the representation in a way that is contrary to the representor’s interest in the outcome of the proceeding even if it is also reasonably open to the jury to use the representation in a way that is in favour of the representor’s interest. In those circumstances, s 81(1) of the Evidence Act 2008 operates to exclude the hearsay rule because the representation operates as an (implied) admission. There is no reason to read some limitation into the operation of that provision. As a matter of logic, the situation where an admission is implied by an otherwise-exculpatory express statement should be seen as analogous to the situation where the admission is contained in separate words in the same document: the admission is admissible, and the only real question is whether associated exculpatory, or self-serving, statements are also admissible.
The alternative that a judge attempt to balance the likelihood of the different ways evidence might be used by the jury in order to determine whether the evidence ultimately skews in favour of the prosecution or in favour of the defence is unrealistic and is unlikely to have been intended when the definition was enacted; the more likely intention was that the judge determine whether it was reasonably open to the finder of fact to treat the evidence in a way that was adverse to the interests of the maker of the representation, and, if so, to admit the evidence (subject to other provisions which might require its exclusion). That would be logical: the administration of justice is furthered if relevant evidence is admitted, there is a benefit in permitting a prosecutor to put before the jury evidence that the jury might consider to be an admission against interest, and there is little harm to an accused in permitting evidence to be put before a jury (if the prosecution wishes to do so) that is also open to be used by the jury as exculpatory.
Accordingly, because the answers are potentially adverse to NE and NES’s interests, they are admissions as defined in the Evidence Act 2008 and are not excluded by the hearsay rule.[6]
E. Div 1 of Part 4 of the Jury Directions Act 2015
[6]Evidence Act 2008 (Vic), s 81.
Div 1 of Part 4 of the Jury Directions Act 2015 places restrictions on the admission of evidence of conduct by an accused after the event or events alleged to constitute an offence charged if the conduct amounts to ‘an implied admission by the accused of having committed an offence charged or an element of an offence charged’.[7] The most immediate restriction is that the prosecution must give notice to the defence of its intention to rely on evidence of conduct as evidence of incriminating conduct at least 28 days before the date on which the trial is listed to commence, and it may not rely on that evidence as evidence of incriminating conduct unless it has given such a notice.[8]
[7]Jury Directions Act 2015 (Vic), s 18.
[8]Ibid s 19.
No such notice has been given. The period within which notice must be given may be abbreviated.[9] Although the matter was not argued, there is a real prospect in the circumstances that I would have abbreviated the time. The prosecution did not ask that I do so. It instead submitted that Div 1 of Part 4 of the Jury Directions Act 2015 is not enlivened because it is not suggested that the answers reveal any dishonesty or consciousness of guilt. The basis of that submission was that this part of the Jury Directions Act 2015 was introduced as a form of codification of the law relating to post offence conduct that reflected a consciousness of guilt, and that the definition of ‘conduct’ refers to ‘lies’.
[9]Ibid s 8.
I do not consider that it is appropriate to approach the question in this way: although an appreciation of the law as it applied to post-offence conduct prior to the enactment of this part of the Jury Directions Act 2015 may be instructive in understanding the legislation, it is the text of the legislation that must be considered and applied.
The relevant definitions in s 18 of the Jury Directions Act 2015 are:
conduct means the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged;
incriminating conduct means conduct that amounts to an implied admission by the accused —
(a)of having committed an offence charged or an element of an offence charged; or
(b)which negates a defence to an offence charged
In my view, the answering of the questions by NE and NES falls within the definition of ‘conduct’ and the inclusion of the word ‘lie’ does not introduce a broad requirement that the conduct in question must have a dishonest flavour. As a matter of construction, the phrase ‘or any other act or omission’ is to be given its natural meaning and is not read as being limited to an act or omission that had the quality of being a ‘lie’, that is, of being dishonest or itself reflecting a consciousness of guilt.
The more complex issue is whether the answers to the questions amount to implied admissions by NE or NES of their having committed ‘an offence charged or an element of an offence charged’ and are thus ‘incriminating conduct’.
The elements of the statutory offences are to be ascertained from the legislation that creates the offences. Section 39G of the Occupational Health & Safety Act 2004 provides that a person must not engage in conduct that is negligent, that constitutes a breach of an applicable duty,[10] and causes the death of that other person. Section 39E of the Occupational Health & Safety Act 2004 provides that conduct is negligent if it involves a great falling short of the standard of care that would have been taken by a reasonable person in the circumstances, and involved a high risk of death or serious injury. These two sections set out, in my view, the elements of the offence.
[10]It is not clear what this element, referred to in the legislation, adds to the requirement that there be negligence as defined.
By requiring that the admission be of having committed an offence or an element of an offence, the definition of ‘incriminating conduct’ in s 18 of the Jury Directions Act 2015 is in different and more demanding terms than the definition of an ‘admission’ in the Evidence Act 2008. This allows for implied admissions that are ‘adverse to the person’s interest in the outcome of the proceeding’ and thus admissible as an exception to the rule against hearsay, but which are not implied admissions of ‘having committed an offence charged or an element of an offence charged’ and thus subject to the process in Div 1 of Pt 4 of the Jury Directions Act 2015. The difference in the language compels a conclusion that Div 1 of Pt 4 of the Jury Directions Act 2015 is not intended to apply to every admission admitted as an exception to the rule against hearsay.
I consider that the implied admissions referred to above, that arise from the answers to the questions the subject of this ruling, fall into this category. Although the associated inferences might be used in a reasoning process, along with other evidence, contrary to the interests of NE and NES, they do not amount to an implied admission by NE or NES that they had committed an offence or an element of an offence. They simply do not have that quality. Accordingly, they are not subject to the regime that applies contained in Div 1 of Pt 4 of the Jury Directions Act 2015.
As noted above, NE and NES were concerned that the jury might infer from the answers something more – that NE and NES had lied to the investigator in the answers out of a consciousness of guilt: if the evidence established that, contrary to the answers, there was in fact no such system of supervision or proper basis for believing that there was such a system, the jury might infer that NE and NES had falsely told the investigators that there was such a system because they knew that the absence of such a duty reflected a ‘great falling short’ on their behalf of the standards of care required.
The prosecution expressly stated that it would not ask the jury to draw such inferences. This is, with respect, a sensible position for it to take. There are complex semantic distinctions at play: is the system of work what is in fact occurring at the work place, or is the system of work what is meant to be occurring at the work place? The latter is probably more correct in many instances, given the oft-stated principle that an employer must design and maintain or enforce a safe system of work. If the former were correct, it would not make much sense to talk of people not following a system of work. The answers are probably capable of being understood as statements of what NE and NES accept the system of work was, without their being assertions that that system was always implemented or followed or the degree to which such a system was implemented or followed. Seen in that light, the answers might be justifiable even if the evidence were to establish that Mr Pasek was not in fact being supervised by a qualified electrician.
Had the prosecution wished to use the answers in this way, I would have ruled that Div 1 of Pt 4 of the Jury Directions Act 2015 applied to that asserted implied admission.
F. Section 137 of the Evidence Act 2008
NE and NES were concerned that the answers, when coupled with the evidence that Mr Pasek was not in fact being supervised on this or other occasions, could cause the jury to infer that NE and NES were dishonest, or prepared to give false answers to investigators, and that this could cause them unfair prejudice that outweighed the answers’ probative value. If that is the case, s 137 of the Evidence Act 2008 requires that the answers be excluded.
NE and NES submitted that the prosecution’s not asking the jury to draw such inferences is insufficient, and that, in circumstances where the prosecution will be asking the jury to find that no such system in fact existed, the temptation to consider the answers as deliberately misleading or false will cause unfair prejudice that will outweigh the probative value of the representations. I disagree. In circumstances where the prosecution will not ask the jury to draw an inference of dishonesty, and where I will be in a position to emphasise that to the jury and if appropriate make the distinction between a system of work and its implementation referred to above, I am not satisfied that there is unfair prejudice to NE or NES that outweighs the probative value of the answers.
G. Conclusion
For the above reasons, but subject to its assurance as to the limited use to which they are to be put, the prosecution is able to tender in its case the questions and answers referred to.
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