DPP v Esso Australia Pty Ltd
[2001] VSC 294
•21 May 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1484 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESSO AUSTRALIA PTY LTD |
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R U L I N GNo. 12
JUDGE: | Cummins J | |
WHERE HELD: | Melbourne | |
DATE OF RULING: | 21 May 2001 | |
CASE MAY BE CITED AS: | DPP v Esso Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 294 | |
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Criminal law – cross-examination – McNeil Report inadmissible – Wilkins Report admissible for limited purposes only.
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APPEARANCES: | Counsel | Solicitors |
For the Prosecution | R. Richter QC | Office of Public Prosecutions |
| For the Accused | M. Titshall QC with M. Hennessy | Middletons Moore & Bevins |
R U L I N GNo. 12
HIS HONOUR:
Learned senior counsel for the prosecution, Mr Richter, seeks to put in cross-examination of the present witness, Mr Dorsett, two matters. I shall deal with them in turn.
The first is two parts of the McNeil Report, namely the calculation of temperature at minus 55 and the visual appearance of the vessels said by the Report to be that of brittle fracture.
The McNeil Report was a report of Exxon and not of the accused company, Esso Australia Pty.Ltd. (Esso Australia). At the Longford Royal Commission, the Report (entitled the McNeil Team Report) was Exhibit LFRC 19 and appears at pages 4273 to 4321 of the depositional material. It was a report by a highly qualified team of Exxon personnel headed by Mr McNeil (thus the name of the Report) who came in from Sakhalin to do it and by six other persons - from Exxon and another Esso company, namely Esso Norge - and two persons providing metallurgical analysis and support - again being from Exxon and another Exxon company, namely Esso Production Malaysia. It was presented to Esso Australia on Friday 9 October 1998. (There was also a draft report, LFRC 20, which was seized by police interception on 7 October, which I put aside. That draft report was done after completion of investigative step 3 and before investigative step 4.)
It is put by Mr Titshall that the accused company, Esso Australia, did not conduct the investigation. The investigation took 12 days from shortly after the rupture on 25 September 1998 until 9 October 1998. Mr Titshall put that Esso Australia has not adopted it, and thus the contents of the Report cannot be put at Esso Australia's feet. I agree with Mr Titshall in that analysis. It is true, as Mr Richter has put, that Esso Australia apparently co-operated in the investigation conducted by the McNeil Team. After all, Esso Australia was the owner of the premises at which the McNeil Team busied itself, and indeed numerous Esso Australia employees provided material to the McNeil Team and, more fundamentally, Esso Australia made every facility available for the McNeil Team to do its work. However that may be as a pathway to the McNeil Report, at the end of the day it was nonetheless a Report by a team for Exxon and, as Mr Titshall said, not adopted by Esso Australia.
In Ruling No. 8 I dealt with the Submissions propounded by Esso Australia through its lawyers, Messrs Middletons, to the Royal Commission and I shall not repeat it. The reasons are set out in that Ruling. But it is apparent from those Submissions that, as appears at paragraphs 273 and thereafter, it was emphasized by Messrs Middletons that the McNeil Report was only preliminary. That also is apparent from the McNeil Report itself, as appears at page 1 of the Report: "The direct cause of the incident was a failure of the GP 905 demethaniser reboiler. The preliminary observations of the GP 905 reboiler indicate that the primary failure mode is brittle fracture. Confirmation of the exact failure mode will require a detailed metallurgical failure analysis". Again at page 4278 of the Report, under the heading "Investigation Process": "It should be understood that the investigation team's findings are based upon the best available information as of October 7, 1998. The findings are subject to revision if additional information becomes available."
The trial could have gone down the path of Esso Australia leading evidence of the McNeil investigation, emphasizing its preliminary and brief nature, and going to the jury on the basis that the investigation reached the wrong conclusion. However, the trial has not gone down that path. (Of course, the accused has no obligation to propound anything, including the McNeil Report). The trial having not gone down that path, I have been at some pains to ascertain precisely what the defence is. It is plain that the defence primarily is that the hypothesis contended for by the prosecution, simplistically put by me as hot into cold equals rupture, is wrong. That is quite apparent and has been so throughout the trial. What, no doubt through my own dimness, was not entirely apparent to me was whether there was a second element to the defence, namely that the cause of the rupture is and was unknowable, as distinct from unknown and not likely to be revealed by a Hazop.
If the defence is or later develops to be that the cause of the rupture is and was unknowable, it seems to me that it would be entirely legitimate for the prosecution to go to the jury on two bases. The first is that there is no evidence that Esso Australia ever conducted any investigation whatsoever of what went wrong on 25 September 1998; and second, in the light of the absence of any evidence that Esso Australia ever investigated what went wrong, how can Esso Australia say the cause is and was unknowable if it never tried to find out? That is an entirely understandable analytical argument to go to the jury. If the defence is not that the cause of the rupture is and was unknowable, but rather that it is and was unknown and unlikely to be revealed by a Hazop, the same argument appears to me to be available to the prosecution in a modified form deleting the word "unknowable" and using the word "unknown"; the analysis being available, but to a lesser degree, because the defence goes to a lesser degree down that track.
The question, however, is not what arguments are available in the absence of any evidence of any investigation by Esso Australia, but rather whether the McNeil Report, in the two aspects that the prosecution seeks to adduce it, is admissible.
Rightly, the prosecution has not sought to lead the whole of the McNeil Report, and all the more so not sought to lead the draft report LFRC 20. It seeks to lead the McNeil Report on two discrete matters of fact. One is the calculation of temperature at minus 55, which appears on page 1 of the report, and the other is the visual inspection of the vessels giving the appearance of brittle fracture. Although the prosecution only seeks to lead the two discrete matters of fact that I have outlined, those two matters either stand or fall under the general principles of admissibility.
I am not satisfied that they are admissible because of the reasons stated at the outset of this Ruling as to at whose feet this Report can be put. I do not consider this Report, in the state of the evidence in this trial, can be put at the feet of Esso Australia. Whether it was obtained by Exxon because it had the world's best experts, or whether it was obtained by Exxon precisely so that it could not be put at the feet of Esso Australia, is not for me to decide. But the consequence is that I do not consider it is a report adopted by Esso Australia. If it has not been adopted by Esso Australia, the Report or parts of it cannot be adduced by the prosecution as admissions of fact by Esso Australia. If the Report or parts of it are not admissions of fact, it would take as I said to counsel in discussion an heroic jury not to be influenced by the elicitation of the Report or parts of it in an impermissible way - that is, as truth of its contents. That mischief must be avoided.
Accordingly, the two parts of the McNeil Report sought to be put in cross-examination cannot be put - namely, the calculation of temperature and the visual inspection.
The second matter for determination is part of the Wilkins Survey of 15 October 1999 contained in a report of an Exxon expert, James T Wilkins, entitled, "Survey of refrigerated lean oil facilities and practices and recommendations for restoration of Longford GP lean oil absorption system". Unlike the McNeil Report, it appears that the Wilkins report was adopted by Esso Australia in that it was part of a presentation in 2000 by Esso Australia to the Major Hazards Unit in relation to the restart of Gas Plant 1 showing a study of other refrigerated lean oil facilities. That, of course, does not mean that the contents can be tendered as to their truth, that is to say as to their accuracy and factuality. The prosecution, however, seeks to lead one part of the Wilkins report, namely at page 9 as to the existence of process flow diagrams and plans and perhaps P&IDs, because in the Wilkins report those documents as to other plants are there stated to be part of material referred to by Mr Wilkins. The existence of those diagrams, plans and P&IDs is sought to be proved by the prosecution.
It seems to me that that is permissible because what is being sought to be proved is the existence of those process flow diagrams, plans and PIDs rather than proving the truth of their contents. Their existence is relevant to an issue now joined, namely that Mr Dorsett, the present witness, has stated that he was not provided with any such documents. The prosecution wishes to go to the jury on the basis that Mr Dorsett, the expert called by Esso Australia, has been provided by it with highly selective and directional material; selective because he was never asked to consider the central question, namely what went wrong at Longford, and directional in that he was directed away from the real question here. The prosecution will no doubt put that argument to the jury and the defence will no doubt answer it. It is a matter joined in issue. Antecedent to that matter being put, the prosecution seeks to elicit that such documents did exist. It seems to me that it is permissible for the prosecution to lead that constituent matter of fact, that is to say the existence of the documents as revealed by the Wilkins report. That is a different question from their contents, that is to say the truth of the contents, so that is permissible.
The defence wishes, quite understandably, to put to Mr Dorsett in re-examination that such concessions as he may have made in cross-examination as to the incomparability of the various 23 plants around the world he visited before he came to Longford in September 2000 are qualified or modified by further data as to those various overseas plants. The defence puts that in the Wilkins report there are various statements of configuration or system as to the other plants, which in fairness ought to be able to be put to Mr Dorsett in re-examination. I agree with the defence about that. I consider it is permissible for it to put to Mr Dorsett in re-examination that the differences elicited in cross-examination between Longford and the other 23 plants are to be qualified or modified by certain further similarities the defence seeks to elicit as to systems, configurations, etcetera in those other plants. The question of the actual configurations and systems at the other plants is an objective matter and I would be very loathe for this trial to go down the path of the defence having to call Mr Wilkins from Houston or 23 other people from 23 other plants to prove their configurations and systems. Mr Richter quite properly, in my view, has conceded that. He has no objection to the Wilkins report being put to Mr Dorsett in re-examination as to the physical configurations and actual systems at the various plants referred to without direct proof of those configurations or systems.
I agree with Mr Richter that the line needs to be drawn between those physical matters, on the one hand, and on the other, conclusions of comparability or non-comparability on the other. The qualitative matter of conclusion is properly a matter for direct evidence. As I understand it, Mr Wilkins presently is not being called. So the qualitative matter of comparability cannot be led by the tendering of the Wilkins report. But descriptive matters of fact, that is to say the configurations and actual systems in operation, can be led by Mr Titshall by use of the Wilkins report in re-examination to the witness. That is so to avoid the waste of money of Esso and of Court time having to call a whole lot of people to prove something that exists objectively and is not a matter of opinion or qualitative judgment.
Accordingly, the McNeil Report remains out wholly. The Wilkins report is in in two limited respects: first, in cross-examination to establish the existence of process flow diagrams, plans and P&IDs but not their truth; and secondly, in re-examination, to establish the configuration of other plants but not conclusions as to comparability. Conclusions can be argued in address by Mr Titshall but the evidence of the Wilkins report as to conclusion is not admissible in evidence. The description of the systems is.
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