DPP v Esso Australia Pty Ltd
[2001] VSC 105
•28 February 2001
| SUPREME COURT OF VICTORIA | Not Restricted |
| CRIMINAL DIVISION |
No. 1484 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ESSO AUSTRALIA PTY LTD |
Ruling No. 7
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JUDGE: | Cummins J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 28 February 2001 |
CASE MAY BE CITED AS: | DPP v Esso Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2001]VSC 105 |
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Criminal law – evidence – opinion evidence – charges under ss. 21, 22 and 47 Occupational Health and Safety Act 1985 – safe workplace – major gas facility at Longford, Victoria – relevance and admissibility of various items.
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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. 7
HIS HONOUR:
Learned senior counsel, Mr Titshall, has most comprehensively and helpfully enumerated various areas of the evidence of opinion sought or proposed to be led by the prosecution, and objected to it on the grounds of non-proof of qualification in one instance, relevance, admissibility - that is to say, the means of elicitation of what analytically is relevant - and finally a couple of matters of prejudice.
It might, I think, be convenient to deal with the matters categorically, and I will then, out of court hours, apply those categories with particularity to the various discrete items and detail them when we resume.
First, as to qualification, I am satisfied that Dr Kenney, a Ph.D. in environmental science and qualified academically in the areas of physics and mathematics, is qualified in law to express the opinions which appear in his statement of 21 December 1999. Additionally to his academic qualifications is his substantial employment and field experience as set out in paras.10-13 of that statement. I, of course, reserve to Mr Titshall the capacity to explore in the absence of the jury those qualifications and their relevance to the evidence sought to be led from the witness. That can be conveniently done at a point before he gives his evidence rather than sending the jury out which might emphasize the matter in running. At all events, on paper, that is to say on the basis of what appears in his statement of his academic qualifications and employment and field experience, I am satisfied that Dr Kenney is qualified as a matter of law to express the opinions which are there set out. That does not mean, of course, that the opinions are all admissible, but rather that he is qualified to express them.
Next, as to categories of relevance and admissibility, the availability of Exxon material to the accused company can be established in one of two ways. If it is established that the Exxon material was in the hands of the accused company, either by the heading on the document stating "Esso" or by the document being obtained from authorised officers of Esso at Longford or in Melbourne pursuant to a s.39 notice or otherwise, then the material's source in the hands of the accused company is established as a matter of fact.
As to the relevance and admissibility of Exxon material which is not by that direct physical nexus tied to the accused company, the admissibility of Exxon material is properly to be determined by the purpose for which it is sought to be led. It is not permissible, in my view, for an holistic approach to be taken by the prosecution whereby all Exxon material, ex hypothesi, may be led in relation to the accused company simply by reason of Exxon being the parent company and Esso a subsidiary of it. That nexus may be relevant for purposes of a corporation prosecution or other inquiry, but is of itself insufficient in this criminal trial to render admissible Exxon material which is not shown to be in the class I first described, namely in the hands of Esso.
If, however, Exxon material not in the hands of Esso at Longford or Melbourne is sought to be tendered as part of the proof of a relevant body of knowledge, then I consider it is admissible in proof of that end if the other normal probative criteria are satisfied.
It is relevant and admissible, in my view, for a body of knowledge of risk and of procedure or system to deal with risk, to be articulated as part of the evidence in the prosecution case. That is because the plant inherently (at Longford and at other like places) had a hazardous potential, and further because the systems and plant were by their nature specialist and involved a significant degree of operational and analytical knowledge. In the event, it is relevant on these counts for the prosecution to prove that there existed a body of knowledge of risk and of procedure or system in relation thereto. Insofar as the prosecution is seeking to prove that matter, it is permissible for the prosecution to prove that Exxon had such material, just as it is permissible for the prosecution to prove that there was a body of knowledge elsewhere in the industry at the relevant time. Accordingly, Exxon material is admissible if it is relevant on its face to the question of a body of knowledge in the industry of risk and risk management, even if not shown to be in the hands of Esso at Longford or at Melbourne - not because Esso is a subsidiary of Exxon, but because the material of Exxon is contended to part of a body of knowledge in the industry at the relevant time.
Accordingly, a judgment needs to be made as to what is the purpose of elicitation of the Exxon material if the material is not shown to be in the hands of Esso.
I warn against the use - I am confident the prosecution would not intentionally do this, but care needs to be taken to ensure the consequence does not follow - I warn against the use of mere company promotional material (whether slogans or motherhood statements or promotions) because a prejudice could follow worked to the detriment of the accused. A contrast should not be sought to be made between company promotional material on the one hand and actual operations on the ground on the other. A contrast between company operational material (manuals, requirements and the like) and performance on the ground (that is, compliance with the manuals or requirements) is entirely permissible if made out on the evidence. That is because the former would be led as to knowledge of risk and as to practicability of provision of a safe workplace. But it is no part of this Court's criminal function in a s.21 or s.22 prosecution under the Act to chase down the company's promotional material. What is relevant is to apply standards of safety to the conduct of the operation at Longford.
The statement of 21 December 1999 of Mr Connell, a chemical engineer and senior safety analyst with the Victorian Workcover Authority, of oral statements made on 9 October 1998 of Dr C. Skinners (para.117-118) is admissible as admissions by an officer or employee of Esso against interest.
Next, the material in Mr Connell's statement as to which Mr Titshall rightly drew attention to its concurrent nature, cannot be led as to the following matters. If the material is merely concurrent, that is to say simply a commentary by the witness upon admissible evidence of some other witness, such material cannot be led. The evidence should come from the first witness, not from a commentator. Second - and the prosecution readily acknowledges this - Mr Connell and any other expert witness, cannot give evidence which is effectively evidence as to the credit of another witness. I say "effectively" because in some cases the statement of Mr Connell demonstrably goes to the credit of another witness - paragraph 185, paragraph 174, etc. - and at other times, although there is not overt support of the credit of a witness, that is the nature of his statement.
Accordingly, Mr Connell, and no other witness, can give evidence which is simply the bolstering of credit of another witness.
Next, Mr Connell and other expert witnesses cannot give evidence which is not truly opinion evidence, that is to say evidence which is simply a gratuitous comment. It may well be, as Mr Richter has said, that upon a proper analysis of the content of Mr Connell's statement as distinct from its semantics, it does not involve gratuitous commentary or the bolstering of credit but goes to relevant and admissible material; and if the evidence is within his sphere of expertise, it is competent to be given. I will reduce overnight that principle to the particulars of the various paragraphs so counsel know precisely where they stand and publish them as an appendix to this ruling. Of course, Mr Connell's statement, and other reports and statements, were made without knowledge of the refining of issues which has subsequently occurred in this trial.
Next, evidence of Dr Kenney as to "world's best practice" which appears in his statement of 21 December 1999 at paragraph 82 and thereafter, in my view is inadmissible. There is no requirement in s.21 upon the accused to adopt world's best practice. The requirement is that the accused provide so far as is practicable a safe working environment. It seems to me that the proper criterion is one of safe practice. There is revealed a confusion of function in requiring world's best practice rather than safe practice. The latter is the criminal requirement. The former may be a commercial or social requirement, but is not a criminal requirement. Again, it may be that in reality Dr Kenney in using the expression, "world's best practice" is simply seeking to articulate that that is a body of knowledge known to the industry namely the safe standard. Whether it is called "good practice", "proper practice" or "safe practice", I think it all really means the same thing in the context of this legislation: safe practice is its essential touchstone, not some other criterion. If Dr Kenney's statement means safe practice, his opinion is admissible. If it means world's best practice, it is putting the bar too high for a criminal prosecution. Again, Mr Richter submitted that the matter is essentially a matter of style or semantics rather than substance, and if that is so, no doubt the admissible substance will go forward within the confines of this ruling.
Next, reference to hazard identifications conducted other than in relation to the 905. I consider those other Hazops are relevant and admissible. They each are sought to be led, within the confines of relevance and fairness, to the provenance of the Hazop, namely that it was a procedure which was known, which was efficacious, and was likely to reveal the risks inherent in the enterprise at cold temperatures. It seems to me that the demonstration of the provenance of a Hazop in relation to Gas Plants 2 and 3, although not the same as the 905, is, subject to analysis, capable of bearing upon the articulation of the provenance of the Hazop as to the 905. That can be done either by collateral analysis, that is to say other parts of the plant in the relevant particular, or by subsequent analysis, that is by the 905 Hazop done some months later. In either event, the material is relevant and admissible. However, again I warn that the material needs to be confined so that the trial does not get diverted into unnecessary detail on those concomitant or subsequent Hazops, and no doubt that limitation will be kept in mind. But analytically speaking, those concomitant or subsequent Hazops are admissible because they are sought by the prosecution to be led to demonstrate the provenance of the Hazop, applied by analogous reasoning to the potential of a Hazop revealing risk.
Next, the international case studies set forth in the report of 18 May 2000 of Mr Roderic Sylvester-Evans, a chemical engineer, are relevant and admissible to prove a body of knowledge as to risk and risk management. Care will need to be taken to confine those case studies to that which is necessary to establish that body of knowledge and to avoid overburdening the jury with other disasters which could prejudice the accused. Back home, the event with the 922 in the ROD/ROD area at Longford on 28 August 1998 is not objected to holistically, and I consider rightly so. It is sought to be led by the prosecution in a limited fashion only, namely to establish that the accused company was put on notice as to cold events and their risks a month before the event of 25 September 1998, and I consider it is relevant and admissible to that end. Care will need to be exercised to ensure that the accused does not suffer prejudice by reason of what is otherwise relevant and admissible. Thus, I consider that the expression in Mr Sylvester-Evans' report of the event on 28 August 1998 being "a serious near miss" (paragraph 8.3.4), ought not be so expressed. If some other expression such as "potentially significant matter" is used, that is adequate. I do not believe in obfuscation, but I think much more importantly prejudice needs to be avoided and I consider "serious near miss" should not be utilized. I understand that is acknowledged by the prosecution in any event.
Finally, the various uses in his report by Mr Sylvester-Evans of the term "expect" (5.4.7, 5.3.9 and 5.3.10) while not admissible in those terms are admissible if the evidence goes to criteria and standards in the industry.
Much of the other material, such as the technical material from Mr Weiss and the various exhibits, 58, 80, 81 and 82, are to be the subject of significant pruning out of court hours, and I think it is sufficient to leave that in the good hands of counsel, all of whom have demonstrated a commendable willingness and capacity to remove unnecessary detail and unnecessary burdens from the jury in the proofs in this case.
I will overnight reduce these principles to applicability to respective paragraphs, and I will give you that on Friday morning (tomorrow the prosecution being down at Longford), and any other matters I have failed to pick up I will deal with on Friday morning as well.
I should have said the words "blind spot" in 1.2.2 of Mr Sylvester-Evans' report I also consider should not be used. If he means failure of methodology, absence of training, or design deficiencies, he can say so, but "blind spot" I think is not an appropriate expert expression.
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APPENDIX TO RULING 7:
Inadmissible items in Mr Connell's statement of 21 December 1999 (by paragraph numbers):
CREDIT: 172 ("confirms", line 3)
174 ("plausible", 2nd last line)
175 ("consistent", 2nd last line)
178 ("plausible", 2nd last line)
185 ("well supported", 2nd last line)
GRATUITOUS COMMENT:
172 ("confirms that Ward was aware of", 3rd last line)
173 (repetition of Mr Kenney's statement at para.38)
177 ("understandable", 2nd last line)
180 (drawing away of operators' attention, line 1)
181 (operator attention, line 2)
186 ("this call is related to", line 3)
191 (confirmation of Mr Visser's decision, line 6)
202 ("consistent with", line 2)
205 ("working together", line 2)
207 ("interpret", line 3)
208 ("confirm", line 1 and "same action", 3rd last line)
217 ("mean that", line 1 and "reply to mean", line 7).
The passage at 219 line 8 ("not totally consistent with") needs further submission: it may involve different considerations from the above.
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