DPP v Esso Limited
[2001] VSC 104
•19 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. 6
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JUDGE: | Cummins J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 19 February 2001 |
CASE MAY BE CITED AS: | DPP v Esso Australia Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2001]VSC 104 First Revision 30 May 2001 |
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Criminal law – 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 discrete 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. 6
HIS HONOUR:
Learned senior counsel for the accused has most helpfully raised a series of categories of evidence as to which objection is taken on the basis of relevance or of admissibility. It is convenient to refer to the categories in the sequence in which they have been today argued. The application of the categorical ruling can be the subject of further submission if any particularization is sought as to any discrete item of evidence of proof.
First, Exhibit 20 below, that is the 24 hour tape of 25 September 1998. I consider the tape or tapes are relevant and admissible. They are evidence of what was said at the relevant time and place, led in proof of the training or lack of training and the safe system or lack of safe system of work existing on the day in question. The statements contemporaneously made by the numerous employees are, in my view, integral to their actions or lack of actions. What was in existence was a system of work, an integral part of which was verbal communication: statements both of receipt, that is to say receiving information, and output, that is to say the giving of directions. The system of work was an holistic entity - actions and statements - and thus the words are integral to the system of work which is said by the prosecution to be unsafe. The words may be characterized in modern parlance as verbal acts. They are not merely the res gestae but rather are verbal acts integral to the system which is said to be unsafe by reason of lack of training and like matters.
The tapes also are said by the prosecution to be eloquent of to what it was that the employees were directing their attention. That in turn is said to reveal the level of knowledge and of understanding and the lack of knowledge and of understanding, as well as constituting evidence of what was being done and what was intended to be done. All those matters, in my view, are integral to each other and to the system of work which is said by the prosecution to be unsafe.
Plainly, significant attention will need to be given to the limiting of the tapes so that this does not become a trial by tape or trial by volume, and I have every confidence that that limiting exercise will be done by counsel.
Insofar as a transcript is sought to be utilized, which was Exhibit 14 below, plainly no transcript could be relied upon as an aid unless its provenance were established. That to say, where it matters the speaker is identified, and the spoken words are accurately reproduced in the transcript. Again, that is a matter of attention by counsel to the transcripts in question. The transcripts are, in my view, not an aide-memoire as such. The tapes would be that, if an aide-memoire were sought, but the tapes are significantly more than an aide-memoire; they are evidence in themselves, as I have just defined. However, the transcripts are a logistical aid in that once their provenance is established, it is often more convenient for a witness to go backwards and forwards in a transcript than to try and find the precise aural part of a tape, and likewise for the jury. Accordingly, the transcripts, if their provenance is established, are utilizable as a logistical aid, but are themselves not evidence. I shall direct the jury in the usual way that it is the tapes which are the evidence, not the transcript, and that the transcript is at best a logistical aid.
I do not consider that the tapes are a commentary, but rather are an exposition of a system of work and a means of its elucidation. Accordingly, the tapes are admissible, but need to be strictly edited to be cogent. The transcript is not evidence, but if its provenance is proved, is utilizable as a logistical aid, but not itself as evidence.
Next, post-explosion evidence. Again, I consider this evidence is relevant and admissible. It is directly relevant to the criterion of practicability defined by s.4(a) in the Occupational Health and Safety Act 1985 - "the severity of the hazard or risk in question". The post-explosion evidence goes directly to the question of practicability as there articulated. It is relevant and admissible on that central ground.
It was also submitted by Mr Richter that it is relevant to the ongoing danger to emergency workers and, whilst that is so analytically speaking and thus is picked up by count 11, I would wish that care were taken that that issue does not unnecessarily develop. I think it has within it potential prejudice to the accused which must be avoided at all times. It is not inherently prejudicial, otherwise I would exclude it if its prejudice outweighed its probative value, but care must be taken to ensure that the sword of Damocles does not cause this trial to be vitiated by unfairness.
As to the particular post-explosion items, each seems to me to be properly capable of being elicited under the head of post-explosion evidence. First, the force of the release, that is to say the 1.5 metre wide and 1 metre deep hole. Next, the existence of, and movement of, the vapour cloud 170 metres to the southeast and then reignited back to GP 905.Next, the tragic death of two persons and the injury to eight persons, five seriously. Again, in that respect I am confident that the prosecution will take care to ensure that that matter is dealt with so as not to emphasize or dwell upon it, in the interests of avoiding prejudice to the accused. Next, that there was a series of explosions, the largest being at 1.40 p.m. Each of those matters is relevant to the criterion of the severity of hazard or risk as defined by the Act. It is now not proposed to lead evidence of the continuation of the fire until 27 September because, as Mr Titshall pointed out, the evidence before the Royal Commission was that that was an operational decision by the CFA to let it burn itself out, and thus would be inappropriate to rely upon that as an element in the post explosion evidence which properly bears on the issue of practicability.
Next, the staffing levels, called by counsel "manning" levels. They again appear to me to be relevant and admissible. It appears that there was an enterprise bargaining agreement in 1993 which resulted in various staffing changes and also that on site engineers were removed to Melbourne in 1992 or shortly thereafter. I consider that the readjustment of staffing levels is relevant and admissible to the safe operation of the workplace. Mr Titshall has eloquently submitted in reply that the reduction in staff levels, when analytically considered, is irrelevant to the prosecution case here, although it may be relevant in other jurisdictions, because, as Mr Titshall said, it is the lack of training of the persons which is alleged, not that they were overloaded with work and that only Mr Ward said he was busy and that was a normal thing in any event. However, I consider that the reduction in staffing levels is relevant in two respects: both of itself, given the level of workload which was required, but more importantly, on the question of the proper training of persons who were there. The prosecution says - it may or may not be able to establish this by persuasive proof - that the 1993 and later staffing readjustments were not met with a complementary readjustment in training for persons who were upgraded or whose job descriptions were extended or whose work loads were increased. The prosecution says the readjustment of staffing levels is directly relevant to the question of training, because the training was not readjusted in a compensatory way when the staffing was readjusted. It seems to me that that is a competent matter, if it can be proved by the prosecution, on the question of the safe workplace.
I must say, and I have said this in discussion with counsel but I repeat it so we do not mislead ourselves, the circumstance that both employer and employees agreed on a system of work does not, it seems to me in my innocence of these matters, to be conclusive of the question of whether the system was safe. Plainly industry practice will bear upon what was safe and no doubt the agreement of employer and employee can bear upon it as well, but it is not conclusive of it. Safety is an objective question, not merely a matter of personal agreement.
Next, TRC3B, the outlet temperature controller of the condensate vapourised in GP 903 and returned to absorber B. That appears to me to be relevant and admissible as to the difficulties which occurred on the night before, both on the basis of the contribution of high levels of condensate into absorber B and the circumstance that employees' attention was diverted to deal with that problem as it arose. It is part of the fabric of events which occurred within the immediate timeframe of 25 September 1998 and evening before. That related fabric is relied upon as to its combination by the prosecution, even though its individual parts may be capable of being analytically isolated. The prosecution has, rightly in my view, conceded that it will not be going into a longitudinal history ofTRC3B over the months and years beforehand, but will limit itself to the antecedent 24 hours.
Next, GP 922. The circumstance of the development of cold there and the circumstance that it was leaking appear to me to be relevant and admissible. It was to that problem that the workers were attending which caused them to be nearby to 905 when it ruptured. In any event, the circumstances of the problems with GP 922 are part of the fabric of events which the prosecution, in my view, rightly is entitled to seek to prove as to the whole context of workplace at the plant on 25 September 1998.
Next, the 28 August 1998 episode a month before the matters in dispute appears to me to be relevant and admissible. Although there were different technical considerations there arising, that is to say on 28 August 1998, the relevance of that antecedent episode is the loss of lean oil leading to frosting of the 905 and the 922. The prosecution puts that by reason of that antecedent episode, as well as of itself, Esso knew or ought to have known of the dangers of loss of lean oil in developing frosting and thus it goes to prior knowledge and to prior warning of risk. However, care must be taken in relation to the antecedent episode of 28 August that the matter does not develop into a mini trial or a trial within a trial. Again, careful attention will need to be given to ensure that the essentials of that 28 August matter which are permissible in law to go forward must not develop into a distraction from the matters charged which are 25 September, not 28 August. Its relevance is the question of knowledge and warning of risk as I have defined it.
Finally, the expression of opinion by persons who are not qualified to give it. As I apprehend it, what is sought to be led by the prosecution from the various individual non-expert witnesses is not opinion evidence at all but rather evidence as to their knowledge or lack of it which bears upon their training or lack of it, a central matter sought to be proved by the prosecution in this case. Thus the prosecution is not through the various persons, including Mr Vandersteen and Mr Knight who are maintenance employees not operators, seeking to lead evidence of opinion but rather is seeking to lead evidence of knowledge or lack of it and of training or lack of it. Necessary, of course, to that analysis is that what is sought to be led is relevant to
what they should have known or been trained in and thus differential levels of knowledge and training would apply to an operator, on the one hand, and maintenance employee, on the other. But the material is admissible, not as evidence of opinion because that is not the purpose of its being led or its use in the jury's hands, but rather as evidence of knowledge or lack of it or of training or lack of it.
I should say that having had the benefits of Mr Titshall's submissions last week, I have read in full the statement of Mr Ward of 31 August 1999 which is 40 pages in length and of 186 paragraphs. The precision with which that statement proceeds demonstrates, as indeed Mr Titshall articulated last week, that the witness is relying upon extraneous material, namely the tapes or the transcripts of them. However, it seems to me that that is a permissible course in that if the witness seeks to refer to material which is of itself admissible, namely the contemporaneous record as provided by the tapes, his evidence is not, as it was submitted, a commentary on the tapes nor is it a reconstruction but rather is a utilization by Mr Ward of admissible evidence. His evidence can thus properly be characterized as an exposition of a system of work rather than a commentary or a reconstruction. Insofar as it is an exposition based upon other admissible evidence, namely the tapes, it is admissible in its own right.
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