DPP v Esso Australia Pty Ltd
[2001] VSC 107
•29 March 2001
| SUPREME COURT OF VICTORIA | Not Restricted |
| CRIMINAL DIVISION |
No. 1484 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESSO AUSTRALIA PTY LTD |
Ruling No. 9
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JUDGE: | Cummins J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 29 March 2001 |
CASE MAY BE CITED AS: | DPP v Esso Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2001]VSC 107 |
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Criminal law – evidence – charges under s. 21, 22 and 47 Occupational Health and Safety Act 1989 – safe workplace – major gas facility at Longford Victoria – ambit of re‑examination – admissibility of expert report.
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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 |
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Ruling No. 9
HIS HONOUR:
Two matters arise for judicial determination as to the ambit of re-examination of the expert, Mr Sylvester-Evans. The first is opinion evidence of Mr Sylvester-Evans as to any problem, risk or danger inherent in what occurred at the Longford plant on 28 August 1998. I have already contained by direction the use of the words "near miss" or "serious near miss" (T.1733) as to the 28 August events, the full jury direction appearing at T.1742-1743.
I consider that as a consequence of cross-examination it is permissible for Mr Richter in re-examination of Mr Sylvester-Evans to elicit from the witness the identity of and the extent of any problem, risk or danger which occurred with extreme cold temperatures on 28 August 1998. I will give the jury a direction as to the limit as to which material in re-examination can be used by them. It appears to me that in view of the following questions, the material is demonstrably admissible in re-examination. At T.2064 - 2065, Mr Titshall asked: "If you are looking at a past instance of cold in that area, or evidence of cold in that area with the lean pumps off, that would be on 28 August, on that occasion lean oil was then restarted and there was no problem?" I then intervened a question or two later and said, "Do you mean when you asked, 'There was no problem', do you mean there was no problem or no rupture?" Mr Titshall answered, "Both." He went on: "On the restart of lean oil there was no problem caused to the system and indeed no rupture?"
It seems to me, in view of that, that the jury would plainly be left with the impression that "no problem" meant no risk or no danger on 28 August 1998. That in turn could be utilized by them as a link in a chain of reasoning propounded by the defence that at 25 September 1998 the workplace was not unsafe. Accordingly, I rule that it is permissible in re-examination for the matter of whether there was or was not a problem, risk or danger, and if so, its extent, on 28 August 1998 at Longford can be led in re-examination through Mr Sylvester-Evans. Mr Titshall in the end made no strong submission to the contrary.
The second matter is the admissibility in re-examination of parts of the McNeil Report which appears at page 4273 and thereafter of the depositions, it being sought to be put by the prosecution in re-examination to Mr Sylvester-Evans, and otherwise led, parts of that Report. The Report is entitled "Longford Incident Investigation Team Report: October 1998" and was created for Exxon, apparently with Esso's consent and cooperation. It is 26 pages in length, plus appendices of 21 pages. Mr J.B. McNeil of Exxon Ventures was the team leader of the investigation.
At the end of cross-examination, Mr Titshall put the following (T.2209): "Finally, Mr Sylvester-Evans, at the end of the day I suggest to you that no one, not even you, can be certain as to what caused this rupture?" And at T.2213, question: "Finally, I suggest, Mr Sylvester-Evans, that the rupture can be explained by the release of PRC4 as much as any other failure scenario?"
I have already given the jury a direction about not reversing the onus of proof and I am sure they will loyally follow that. The question arises as to whether the matters put by Mr Titshall justify the introduction in re -examination of parts of the McNeil Report bearing upon the two matters (knowledge and cause) put by Mr Titshall in those two questions.
I am unpersuaded by Mr Titshall's submissions that the McNeil Report could not ever be a matter of relevance in this trial (if he went that far). It appears to me (from the contents of the Report and its production pursuant to summons at the Royal Commission) that the Report was information in Esso's hands and the McNeil team examined the premises with Esso's knowledge and authority. That however is a different matter from the contents of the Report being put at Esso's feet as part of the prosecution case. (Apparently Esso conducted no major, separate investigation itself of the causes of the 25 September 1998 rupture).
I consider that the material should not be led in re-examination of this witness or presently led in evidence. That is for the following reasons. It is quite apparent that the Report time and time again qualified itself as to its conclusions. The Report stated at D.4274, "The direct cause of the incident was a failure in the GP 1905 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." At D.4288: "It appears the GP 905's primary failure mode is brittle fracture, although confirmation of the exact failure mode will require detailed metallurgical failure analysis." At D.4298: "The preliminary observations are consistent with the primary failure mode being brittle fracture. It is noted that confirmation of the exact failure mode will require a detailed metallurgical failure analysis as outlined in figure 6.6," which thereafter appears. Further at D.4298 and under the heading "Recommended Follow-up" appears the following: "Further work is required to compile all existing records for the GP 905 and complete the failure analysis.....Details of a sampling and test program to obtain information through materials evaluations necessary to complete the failure analysis are provided in Figure 6.6." And so on.
At the Royal Commission the following was put in paragraph 273 by Messrs Middletons in its Submissions on behalf of Esso: "The McNeil team report itself was only preliminary in any event and represented the results of a 10 to 12 day investigation."
From what Mr Richter has said, much of the debate in the Royal Commission, I gather, was about whether a Hazop should have been done and would have been efficacious as apparently was propounded by the McNeil team. That is not the issue presently before me. The McNeil Report heavily qualified its conclusions as being subject to metallurgical analysis. Mr Sylvester-Evans is a chemist; not a metallurgist. It may be that Esso is to say in this trial by way of oral evidence, or by way of submission upon documents tendered by it or the prosecution, that a metallurgical analysis now reveals that the cause of the failure was release from PRC4. Certainly it is put by Esso that hot lean oil never entered GP 905 after 12 noon. It seems to me that in those circumstances, to seek to propound the McNeil Report in proof of the issues joined by Mr Titshall's questions at 2209 to 2213 is not justified. It is true that
Mr Titshall has put in issue a question of knowledge. Mr Richter, quite rightly, says he is not seeking to lead parts of the McNeil Report as an admission of fact by Esso (it was not by Esso, and it is not an admission of fact by Esso) but seeks to put it as bearing upon the question of knowledge and also bearing upon the cogency of the now propounded possible cause. Release from PRC4 was conspicuously lacking from the McNeil Report, but that absence must be considered in the light of the heavy qualifications in that Report and which I have cited. Next, it is not suggested by the prosecution that the statement in the McNeil Report that cold liquids estimated by calculation to be below minus 55 degrees centigrade entered the GP 905 reboiler (D.4274) can be led as an admission of fact by the accused company. The jury would thus be required to be subject to a direction as to its limited proper use. The only present use so as far as I can see, of those two matters (absence of the PRC4 thesis and presence of estimated minus 55 degrees centigrade cold) is to seek to undermine an anticipated defence by Esso. There is no analogy with recent invention or late alibi because those concepts essentially relate to factual narrative rather than (as here) extrapolated analysis. It is the charges which the proof a priori should be directed to. If Esso goes into the witness box - Mr Richter says it may call no evidence; so be it - but if it goes into the witness box, these matters can be put as a matter of credit in cross-examination. That is quite a different thing from leading them as proof either of the crimes charged, which they are not, or as bearing upon the position now adumbrated by Esso in the two questions at T.2209 and T.2213. It seems to me it would be wholly undesirable to admit part of a heavily qualified report on what presently is a matter of credit, and I accordingly exclude reference to the McNeil Report in re-examination.
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