Director of Public Prosecutions v Seascape Constructions Pty Ltd (Ruling No. 1)

[2020] VCC 85

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02476

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEASCAPE CONSTRUCTIONS Pty Ltd

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2020
DATE OF RULING	13 February 2020
CASE MAY BE CITED AS:	DPP v Seascape Constructions Pty Ltd (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2020] VCC 85

REASONS FOR RULING
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Subject:  CRIMINAL LAW

Catchwords:  Application for discharge of jury – Test for discharge of jury -  High degree of necessity or need

Legislation Cited:                Juries Act 2000 (Vic); Occupational Health and Safety Act 2004 (Vic)

Ruling:  Application for discharge of jury granted

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms F. Todd with Mr N. Goodfellow	Solicitor for Public Prosecutions
For the Accused Company	Mr R. Andrew	Ward Co Lawyers

HER HONOUR

1. This is an application for the discharge of the jury which is put on the basis of three matters which have been set out by Ms Todd, Counsel for the Prosecution, who has taken me to Transcript of Evidence from, effectively pages 37-38 as to aspects of the evidence that came out yesterday from Mr Wissam Taleb; the first in relation to meeting with the barrister the other day and discussion of the evidence that might be given; the second aspect in relation to statements that were given by the witness Taleb and whether he had recently read those and also there was the aspect of being advised -   the question was whether he had been advised that it was an offence under the Occupational Health and Safety Act 2004 to give misleading or false information, at which point Mr Taleb asked, 'Can I request a certificate, Your Honour'. (See Transcript of Evidence page 38 lines 1 and 2.)

2. It is suggested by the Prosecution that these matters in combination produce the effect that the trial is so impacted that there is a high degree of necessity or need to discharge this jury.  In particular, Ms Todd points to the difficulty with curing the suggestion that she says was made by Defence, albeit it may not have been made intentionally, but the spectre is there, she says, that there had been improper discussions as between the Prosecution and the witness Taleb as to the evidence he might give, referring to page 37 Transcript of Evidence at line 21.  Further, Ms Todd indicates that the trial is at an early stage and therefore to start again, not a great deal will be lost in terms of time.

3. Mr Andrew for Defence says that there is not a high degree of need or necessity.  He squarely indicated the way in which Defence was approaching the matter in terms of the questions that were put yesterday - he indicated there was absolutely no impropriety suggested as to the discussions as between the Prosecutor and the witness that he was asking about, and said that in any event he would be in a position to cure or attempt to cure that aspect by making an appropriate statement, I suppose in the form of a question or preface to a question, if the witness returned to court, which would make it clear that he was not suggesting any impropriety.

4. He submitted that there was every intention on the part of  Defence to question this witness in relation to inconsistencies in statements and evidence - statements he has made/evidence that he had given in so far as his role on the day in question, in so far as his qualifications are concerned, and that therefore the questions that he was asked in relation – or that the first question that he was asked in relation to signing a statement and whether he was advised about it being an offence under the Occupational Health and Safety Act 2004 to give misleading or false information would be followed up on and so it was his intent to cross-examine this witness as to his credit quite thoroughly with a view to suggesting that it was really his responsibility - as I understand the way Mr Andrew is putting it - his responsibility as a registered builder or in fact his company's to ensure that appropriate measures were put in place. He said that, as I understand Mr Andrew, the provision of a statement to refresh his memory really didn't take the matter any further and that, in all, there was no basis for the prosecution's application in effect, that there was a high degree of need to discharge this jury, that any mention of a certificate could be cured by a direction, although he did say that if he had his time again with the witness – well, not if he had his time again with the witness but he did say that he would not intend to cross-examine Mr Taleb in relation to that aspect, that is, the granting of a certificate.

5. In my view, the evidence of Mr Taleb yesterday that he had met a barrister the other day and agreeing with the proposition that he discussed the evidence he might give, is highly problematic, even if unintended by Mr Andrew (and I accept that he did not attempt to suggest anything improper) it creates an impression, in my view, that there has been discussion of his evidence, as between the prosecution and the witness, in such a way that his evidence is lacking in independence and has been obtained as a result of discussions or at least in part with his barrister.

6. While it may well be - who knows - as to whether he was talking about the independent advice or not, does not really matter.  The jury would gain the impression clearly that the discussions occurred between prosecuting barristers and the witness that puts the barristers in an invidious position where effectively they are witnesses, in respect of the discussions that took place.

7. I understand that Mr Andrew was prepared to make a concession in front of the jury in effect that he is not suggesting that anything improper occurred.  However, the evidence is still there which is problematic in my view, and taints the evidence of this witness in terms of its independence.  And in particular, that question and answer was followed up fairly quickly with the viewing of his statement, which in itself is something that is quite innocuous, and witnesses of course are entitled to view their statements to help refresh their memory.  I do not see that as problematic in itself.

8. But then the suggestion that, or the question about being advised that it was an offence under the Occupational Health and Safety Act to give misleading or false information, at which stage the witness requested a certificate, in my view does compound a problem that is already a difficult one - because the mention of a certificate would then require me to explain to the jury what a certificate is, and in view of the fact that we adjourned at that point may well put in the minds of the jury that this witness is only prepared to give evidence if granted a certificate, and that he is the person who ought properly be held responsible in relation to the accident, in circumstances where I was put in a position yesterday where I did not know about independent legal advice and I did not know that defence were going to be putting this witness in a position where he would need to seek a certificate.

9. In those circumstances, and in view of the stage at which the trial has reached, and also factoring in that there is a need, it would appear, according to what the learned prosecutor has said, to make it very clear what the elements of the alleged offending are, in view of the issues taken by defence.  Putting those matters together, I am of the view that there is a high degree of need to discharge this jury, and to start again with Mr Taleb being given thorough independent legal advice as to his entitlement to claim a certificate, starting again with me taking him through the steps, and indicating to him in the absence of the jury as to what his entitlements are, and ascertaining what course he wishes to adopt, and starting again without the mention of the request for a certificate perhaps - one cannot predict what Mr Taleb might say in that regard.  But certainly, Mr Andrew has indicated (quite properly in my view) that he would not be seeking to cross-examine him on that particular aspect.  Of course, Mr Andrew is more than entitled to cross-examine the witness in relation to matters going to his credibility, in circumstances where it appears he is submitting that Mr Taleb had some responsibility to attend to guard rails or the like in relation to the workplace.  So, taking all of those matters into account, as I have said, I intend to discharge this jury and I will be looking, I would say, at empanelling tomorrow.  But I will see if there is a panel available this afternoon so that we can perhaps continue on with the trial, or start the trial again, I should say, sooner rather than later.