Jennifer Ann Nash v Resource Pacific Pty Limited (No 1) - [2016] NSWIC 6

Industrial Court

New South Wales

Medium Neutral Citation: Jennifer Ann Nash v Resource Pacific Pty Limited (No 1) [2016] NSWIC 6
Hearing dates: 30 and 31 March and 6 and 7 April 2016
Date of orders: 07 April 2016
Decision date: 24 June 2016
Before: Walton J; President
Decision:
The Court confirms its rulings as to the admissibility of evidence with respect to the Georgevits report, the Georgevits supplementary report, the McAree report and the McAree supplementary report and related rulings given on 30 and 31 March and 6 and 7 April 2016 for the reasons appearing in this judgment.

Catchwords: OCCUPATIONAL HEALTH AND SAFETY – prosecution under s 8(2) and s 10(2) of Occupational Health and Safety Act 2000 – expert evidence – reasons for judgments on admissibility - objections to expert reports as evidence – prosecutor tendered supplementary reports on application and in chief – objection to receipt of supplementary reports - whether prejudice arose from lack of notice – whether fresh evidence – whether prosecutor’s use of procedure adopted by court prejudicial – case management discretion in criminal proceedings – prevention of unfairness in proceedings – leave to file supplementary reports – partial receipt of supplementary reports for purpose of determining objections to primary reports – partial receipt of supplementary reports as evidence in chief – principles regarding admissibility of expert evidence –operation of ss 76, 78, 79, 135 and 137 of Evidence Act 1995 – reasons for determinations on admissibility of expert reports - specialised knowledge based on training, study or experience – generalist knowledge - whether opinions wholly or substantially based on specialised knowledge – whether reasoning, facts and assumptions on which opinions based provided – generalist knowledge - whether opinion admissible as lay opinion –– whether danger of prejudice outweighed probative value of evidence – whether opinions relevant to proceedings – whether opinion admissible as lay opinion.
Legislation Cited: Clean Air Act 1961
Coal Mine Health and Safety Act 2002
Criminal Procedure Act 1986
Environmental Planning and Assessment Act 1979
Evidence Act 1995
Occupational Health and Safety Act 2000
Cases Cited: Australian Securities and Investments v Rich [2005] NSWCA 152; (2005) 218 ALR 764
Cadbury Schweppes v Darrel Lea [2007] FCAFC 70; (2007) 159 FCR 397
Dasreef v Hawchar [2011] HCA 21; (2011) 243 CLR 588
Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122
Keller v The Queen [2006] NSWCCA 204
Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532
Makita Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
State Pollution Control Commission v Australian Iron (1992) 29 NSWLR 487
Sutherland Shire Council v Benedict Industries [2013] NSWLEC 121
Category: Procedural and other rulings
Parties: Jennifer Ann Nash (Prosecutor)
Resource Pacific Pty Limited (Defendant)
Representation:
J Agius SC with B Clarke and R J Rankin (Prosecutor)
D Buchannan SC with M Shume (Defendant)
Solicitors:
Crown Solicitors Office (Prosecutor)
Seyfarth Shaw (Defendant)

File Number(s): 2016/19616 (formerly IRC 135/2011)2016/19632 (formerly IRC 136/2011)

reasons for Judgment

These proceedings involve a prosecution instituted by Robert William Regan on 15 February 2011, for whom Ms Jennifer Ann Nash (‘the prosecutor’) was substituted by order of this Court on 7 March 2012, against Resource Pacific Pty Limited (‘the defendant’). The defendant was charged with one breach each of s 8 (2) and s 10 (2) of the Occupational Health and Safety Act 2000 (‘the Act’) by amended applications for order filed on 11 June 2013 (hereafter referred to as the s 8(2) charge or the s 10(2) charge).
The charges followed upon a fatal incident which occurred between 2.00am and 2.30am on 18 February 2009 at the Ravensworth Coal Mine (hereafter ‘the mine’). On that occasion, Mr David Oldknow, a self-employed truck driver under contract with Daracon Mining Pty Ltd, was engaged to transport reject received from Reject Bin 802 (hereafter ‘Bin 802’). Mr Oldknow brought his truck underneath the chute of Bin 802 on 18 February 2009 for the purpose of undertaking the work he was commissioned to perform for Daracon. Approximately 10 tonnes of reject was discharged from Bin 802 onto the cabin of the truck whilst Mr Oldknow was situated in the driver’s seat.
Throughout the proceedings, Bin 802 was variously described as a ‘surge bin’, a ‘mass flow bin’, and a ‘gravity flow bin’, each of which described that the bin held a volume of reject which, when released, fell by force gravity from the chute of the bin in a predetermined amount.
During the course of these proceedings the prosecutor adduced evidence from two experts: Professor Ross McAree and Mr George Georgevits. The evidence in chief from the expert witnesses was advanced in the form of reports: a report by Professor McAree dated 15 March 2013 and filed on 18 March 2016 (‘the McAree report’) and a report compiled by Mr Georgevits dated 29 June 2011, also filed on 18 March 2016 (‘the Georgevits report’).
In order to facilitate the disposition of objections to the reports foreshadowed by the defendant, the Court invited the parties to adopt a procedure whereby the defendant would file and serve their objections to each report and the prosecutor would then file their responses to those objections prior to the hearing of oral submissions as to their admission into evidence.
The defendant filed two schedules on 25 February 2016, one containing their objections to the McAree report and the other containing their objections to the Georgevits report. The prosecutor filed her responses to the objections to the Georgevits report in schedule form on 17 March 2016. Her responses to the defendant’s objections to the McAree report were filed in similar form on 18 March 2016. The two schedules filed by the prosecutor also incorporated the defendant’s objections in order to make clear the opposing views as to admissibility of the evidence.
In order to assist the understanding of the judgment that follows I have appended the two schedules filed by the prosecutor (Annexure A in the case of objections to the Georgevits report and Annexure B in the case of objections to the McAree report). The schedules were amended by the Court in order to identify, in numerical order, the separate objections the defendant has made to each report (this approach was employed during the hearing of the questions of admissibility in order to facilitate dealing with the objections).
As part of filing her response to the defendant’s objections, the prosecutor filed two supplementary reports from each expert. Professor McAree’s supplementary report dated 16 March 2016 (‘the McAree supplementary report’) was filed on 18 March 2016. Mr Georgevits’ supplementary report dated 11 March 2016 (‘the Georgevits supplementary report’), was filed on 17 March 2016.
The supplementary reports were admitted over the objection of the defendant for the purpose of ruling upon objections to the primary reports; that is, to employ the terminology used by the parties, the supplementary reports were admitted upon the application. That ruling was made ex tempore and reasons withheld for later publication in due course.
There was a subsequent debate as to the admissibility of the supplementary reports as evidence in chief. This debate occurred with respect to each supplementary report after the objections to their respective reports proper had been ruled upon. The McAree supplementary report was only pressed, in that respect, by the prosecutor in regard to that part of its content detailing Professor McAree’s training and experience. Having regard to the earlier ruling admitting the supplementary reports on the application, there was no objection to its admittance in this form (by that process the balance of the supplementary report was excluded from the case proper). It was admitted in this form on 31 March 2016 (Exhibit 121). The Georgevits supplementary report was admitted in the case proper on 7 April 2016 in redacted form to reflect the objections sustained in relation to the Georgevits report (Exhibit 137).
This judgment will also provide the reasons for admitting the respective supplementary reports ‘on the application’ and in chief. It will then provide the Court’s reasoning for the rulings made in relation to the objections taken to each of the expert reports, bar the two for which reasoning has already been given, that is, the ninth and twelfth of the defendant’s objections to the Georgevits report (Part 5.3.3 and Appendix A6 of that report, respectively).

THE RECEIPT OF THE SUPPLEMENTARY REPORTS ON THE APPLICATION

The McAree Supplementary Report

Oral submissions as to the acceptance of the supplementary report for the purpose of dealing with the objections to the McAree report were heard on 30 March 2016.

The Defendant’s Submissions

The defendant submitted it would be unfairly prejudiced by the admission of the McAree supplementary report into evidence and that accordingly the Court should exercise its discretion to exclude the evidence. This submission was founded on the basis that the defendant had received insufficient notice of the supplementary report by the prosecutor and that the supplementary report constituted, in substance, fresh evidence. Meeting this fresh evidence would detract from the defendant’s ability to prepare the other parts of its defence, thus prejudicing the defendant.
The defendant further contended that the tabling of fresh evidence was an abuse of the orders given by the Court for dealing with the objections to the two expert reports. By this submission, it was contended that the prosecutor had abused the mechanism put in place by the Court by using it as an opportunity to produce fresh evidence in order to meet the defendant’s objections. This, it was submitted, delivered the prosecutor an unfair advantage not envisaged by the Court when making its orders.

The Prosecutor’s Submission

The prosecutor submitted that the defendant would suffer little prejudice by the admission of the McAree supplementary report. The prosecutor stated that that report, in substantial part, merely elaborated on the specialised knowledge of the witness as specified in the McAree report and identified the factual basis upon which opinions were proffered. Other parts of the McAree supplementary report served to explain the meaning of certain words in the McAree report which had been objected to by the defendant. Thus, the McAree supplementary report served to respond to the defendant’s objections to the report proper rather than to bring further opinion evidence (it should be noted, in that respect, that the defendant originally objected to the whole of the McAree report).
The prosecutor further responded to the defendant’s objections by highlighting that any additional material referred to in the supplementary report was material which the defendant either had been served with or had displayed awareness of throughout the proceedings, particularly in relation to its cross-examination of Mr Marcus Punch (Mr Punch, now a consultant, who was a contractor of Hatch Associates employed to undertake risk assessments and failure analyses at the mine from 2006, was cross-examined as an expert in functional safety). Thus, such evidence could not be seen as prejudicial to the defendant.

The Decision on the Receipt of the McAree Supplementary Report to Determine Objections to the Primary Report

The Court has an inherent discretion to control and supervise the conduct of proceedings so as to prevent unfairness: State Pollution Control Commission v Australian Iron (1992) 29 NSWLR 487 (per Gleeson CJ) (‘State Pollution’). In State Pollution, Gleeson CJ said at 492-493:

Failure to comply with directions of the kind with which we are concerned gives the trial judge a discretionary power to exclude the evidence in question. It makes no difference to the existence of the power, as distinct from the discretionary considerations relevant to its exercise, that proceedings are criminal in nature. It was said in argument that prosecuting authorities have asserted in the Land and Environment Court a “right to lead evidence notwithstanding a failure to comply with directions. Such an assertion, if it had been made, is baseless. The power to give directions necessarily carries with it a power to refuse to countenance non-compliance. A power to direct with certain steps to be taken in relation to adducing evidence necessarily carries with it a power to refuse to permit a party to adduce evidence otherwise than in accordance with those steps.
Furthermore, the court has an inherent power to control and supervise the conduct of proceedings so as to prevent unfairness. This power is not restricted to defined and closed categories and, in an appropriate case, extends to refusing to permit a prosecutor in criminal proceedings to lead evidence that is otherwise relevant and admissible.

State Pollution concerned an appeal, by way of case stated, to the New South Wales Court of Criminal Appeal, from a decision of Cripps J in the Land and Environment Court to reject evidence that was otherwise admissible but had been filed in contravention of court orders. The evidence the prosecutor sought to adduce in that case was fresh evidence and it was rejected on the grounds that it would be prejudicial to the defendant by reason of the late notice given. Given case management considerations, Cripps J opted against granting an adjournment to enable the defendant to meet the new evidence. The Court of Criminal Appeal held that this ruling fell within the primary judge’s discretion.
In Sutherland Shire Council v Benedict Industries [2013] NSWLEC 121 (‘Sutherland Shire’), Biscoe J elaborated on the scope of this discretion, stating at [27]-[28]:

[27] The court has power to control and supervise the conduct of criminal proceedings, including so as to prevent unfairness. In an appropriate case, this extends to refusing to permit a prosecutor to lead evidence that is otherwise relevant and admissible, for example if the evidence would cause the defendant to suffer irremediable prejudice, or prejudice which could only be cured by an order that the Court is not willing to make, such as for an adjournment of the hearing.
[28] By analogy, it may be said that, subject to the court’s control and supervision including so as to prevent fairness, it is generally permissible for the prosecution to call supplementary evidence-in-chief in response to the defendant’s objections to the admissibility of prosecution evidence, particularly under the Div 2A regime where such obligations are made at an early stage of the proceedings.

Whilst Sutherland Shire was determined in the context of the application of Div 2A of Pt 5 of Ch 4 of the Criminal Procedure Act 1986 and the judgment of Gleeson CJ in State Pollution concerned a failure to comply with directions, the principles as to case management of criminal proceedings, arising from prosecutions under the Environmental Planning and Assessment Act1979 (Sutherland Shire) and the Clean Air Act 1961 (State Pollution), are applicable, by analogy of reasoning, to the present proceedings, being criminal proceedings arising from prosecutions under the Act. In the exercise of the relevant discretion, what is of fundamental concern is a prevention of unfairness in the proceedings.
As Biscoe J noted, it is generally reasonable for the prosecutor to call supplementary evidence in chief in response to a defendant’s objections to the admissibility of prosecution evidence. The defendant’s chief complaint as to prejudice in relation to the McAree supplementary report was the lack of notice it received and the related concern that meeting this material would unfairly detract from its preparation of other aspects of its case. However, I do not consider the defendant established prejudice because the premises for the contention were not made out. There were at least 11 days between the defendant’s receipt of this material and the hearing of the objections to the McAree report. Further, the parties were explicitly given an additional day in order to prepare for oral submissions regarding the objections to both expert reports. This should have been ample time for senior and junior counsel to deal with the additional material in the form that it took, and, this time cannot, in the circumstances, be considered inadequate notice.
Further, the McAree supplementary report did not represent a substantial departure from the material found in the McAree report. Rather, it merely elaborated on certain matters contained in the McAree report. This elaboration included the identification of materials which were the source of an opinion proffered. Other parts of the supplementary report elaborated upon Professor McAree’s training and experience. Thus, the defendant was not presented with substantial fresh evidence in the sense complained of or at least not sufficiently so as to prejudice it in such a way as to warrant the exclusion of the material on the application. No adjustment was sought by the defendant.
Complaint was also made by the defendant about the prosecutor’s misuse of a coercive procedure put in place by the Court. This submission proceeded upon the false premise that the Court made orders of a coercive nature with respect to filing objections (and responses thereto) to the McAree report. Rather, the parties were invited to adopt a procedure designed to assist in the disposition of the numerous objections anticipated to the expert reports. In any event, the prosecutor was still required to seek leave in order to file the supplementary reports as the filing of supplementary reports was not contemplated by the procedure adopted by the Court, although there were many common discretionary factors in determining whether to receive the supplementary reports on the application and to grant leave in that respect.
In my view, the defendant failed to establish that the admission of the McAree supplementary report on the application would constitute an unfairness of the kind discussed in State Pollution and Sutherland Shire. It was, thus, admitted on that basis on 30 March and marked Exhibit 115.

The Georgevits Supplementary Report

Submissions regarding the Georgevits Supplementary Report

The defendant objected to the admission the Georgevits supplementary report on the application on 6 April 2016. In doing so the defendant relied on the submissions, discussed above, made in regard to the McAree supplementary report. The defendant accepted that the Court would admit the Georgevits supplementary report given the ruling made with respect to the McAree supplementary report. The prosecutor adopted the same approach.

The Decision on the Receipt of the Georgevits Supplementary Report to Determine Objections to the Primary Report

In a formal way, the defendant objected to the Court’s receipt of the Georgevits report on essentially the same grounds as it objected to the receipt of the McAree supplementary report.
This approach is understandable. It does not follow, however, that in determining to admit the Georgevits supplementary report, the Court considered the factors in favour of the admission of the report to be identical to those applying in the case of the admission of the McAree supplementary report.
The Georgevits supplementary report served to meet the objections raised by the defendant as to the specialised knowledge of the witness and the failure to provide the facts or assumptions upon which the opinions contained in the Georgevits report were based. To a very large degree the report only repeated information already provided in the Georgevits report. Further, it incorporated only a minor elaboration upon the witness’ training, study and experience. The report could not be said to contain fresh evidence of the type complained of by the defendant.

As to the question of notice, the defendant had even more time between the filing of the Georgevits supplementary report and the hearing of objections regarding the Georgevits report than in the case of the McAree supplementary report: 19 days in total. Further, counsel benefited from the additional day that was given to the parties specifically to prepare for oral submissions as identified above (at [21]).
The prosecutor again was required to seek leave of the Court in order to tender the Georgevits supplementary report. That leave was granted for essentially the same reasons given for the admission of the McAree supplementary report on the application given above.
In my view, the defendant failed to establish that the admission of the Georgevits supplementary report on the application would constitute an unfairness of the kind discussed in State Pollution and Sutherland Shire. It was thus admitted on the application on 6 April 2016 as Exhibit 134.

OBJECTIONS TO THE PRIMARY EXPERT REPORTS

Statutory Provisions

Sections 76, 79, 135 and 137 of the Evidence Act 1995 are relevant to the determination of the objections to both the McAree and the Georgevits reports. Those provisions are as follows:

76 The Opinion Rule
(1) Evidence of an opinion is not admissible to prove the existence of a fact of which the opinion was expressed.
(2) Subsection (1) does not apply to evidence of an opinion contained in a certificate or other document given or made under regulations under an Act other than this Act to the extent to which the regulations provide that the certificate or other document has evidentiary effect.

…
79 Exception: opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1)
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.

…
135 General discretion to exclude evidence
The court may refuse evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time
…
137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

Relevant Principles as to the Receipt of Expert Evidence

It should be steadily borne in mind that the ultimate test as to the admissibility of expert evidence is that contained in s 79(1) of the Evidence Act.
Section 79 is an exception to the general exclusion of opinion evidence pursuant to s 76(1). Thus, if opinion evidence given by a witness does not satisfy s 79, or one of the other exceptions to the rule laid out in s 76(1), it will not be admissible.
To satisfy s 79(1), the evidence tendered must meet two conditions. The first is that the witness giving the evidence has specialised knowledge based on their training, study and experience. The second is that the opinion proffered is based “wholly or substantially” on that specialised knowledge: see Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 at [23] (hereafter ‘Honeysett’); Dasreef v Hawchar [2011] HCA 21; (2011) 243 CLR 588 at [32] (per the plurality) (‘Dasreef’). Thus, a failure to meet these conditions will render the opinion inadmissible: see Dasreef at [42] (per the plurality).
The relevant principles as to what constitutes the satisfaction of those two conditions have been outlined in a number of decisions which were brought to the attention of the Court.
In Dasreef the plurality stated (at [35]-[37]):

[35] In order for Dr Basden to proffer an admissible opinion about the numerical or quantitative level of Mr Hawchar’s exposure to silica dust it would have been necessary for the party tendering his evidence to demonstrate first that Dr Basden had specialised knowledge based on
his training, study or experience that permitted him to measure or estimate the amount of respirable silica to which a worker undertaking the relevant work would be exposed in the conditions in which the worker was undertaking the work. Secondly, it would have been necessary for the party tendering the evidence to demonstrate that the opinion which Dr Basden expressed about Mr Hawchar’s exposure was wholly or substantially based on that knowledge.
[36] In this case, demonstration of those matters could come only from evidence given by Dr Basden. That is why, in HG v The Queen, Gleeson CJ pointed out that, “[b]y directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, [s 79] requires that the opinion is presented in a form which makes it possible to answer that question” (50).
[37] It should be unnecessary, but it is nonetheless important, to emphasise that what was said by Gleeson CJ in HG (and later by Heydon JA in the Court of Appeal in Makita (Australia) Pty Ltd v Sprowles (51)) is to be read with one basic proposition at the forefront of consideration. The admissibility of opinion evidence is to be determined by application of the requirements of the Evidence Act rather than by any attempt to parse and analyse particular statements in decided cases divorced from the context in which those statements were made. Accepting that to be so, it remains useful to record that it is ordinarily the case, as Heydon JA said in Makita (52), that “the expert’s evidence must explain how the field of ‘specialised knowledge’ in which the witness is expert by reason of ‘training, study or experience’, and on which the opinion is ‘wholly or substantially based’, applies to the facts assumed or observed so as to produce the opinion propounded”. The way in which s 79(1) is drafted necessarily makes the description of these requirements very long. But that is not to say that the requirements cannot be met in many, perhaps most, cases very quickly and easily. That a specialist medical practitioner expressing a diagnostic opinion in his or her relevant field of specialisation is applying “specialised knowledge” based on his or her “training, study or experience”, being an opinion “wholly or substantially based” on that “specialised knowledge”, will require little explicit articulation or amplification once the witness has described his or her qualifications and experience, and has identified the subject matter about which the opinion is proffered.

In Nicholls v Michael Wilson & Partners Ltd [2012] NSWCA 383 at [209], Sackville AJA provided a useful synopsis of the propositions contained in the plurality’s judgment in Dasreef:

The appellants and MWP accept that the principles governing the application of s 79(1) of the Evidence Act are those stated by the plurality judgment (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588. The following propositions can be derived from that judgment:
Section 79 assumes that opinion evidence is tendered to prove the existence of a fact. It is necessary to identify why the evidence is relevant: that is, why the evidence, if accepted, can rationally affect the assessment of the probability of the existence of the fact in issue in the proceeding (Evidence Act, s 55(1)) (at [31]).
To be admissible under s 79(1), the evidence must satisfy two criteria. First, the witness must have specialised knowledge based on his or her training, study or experience. Secondly, the opinion expressed by the witness must be wholly or substantially based on that knowledge (at [32]).
It follows that the party tendering an expert report must demonstrate that the author has specialised knowledge based on training, study or experience that enables him or her to express an opinion on a matter that is relevant to an issue in the proceeding. The tendering party must also be able to demonstrate that the opinion was wholly or substantially based on that knowledge (at [35]).
These requirements explain why the opinion should be presented in a form which makes it possible to determine whether the opinion is wholly or substantially based on specialised knowledge (at [36], citing HG v The Queen (1999) 197 CLR 414; 160 ALR 554; [1999] HCA 2 at [39], per Gleeson CJ).
Ordinarily, the evidence of the expert must explain how the field of specialised knowledge in which the witness is expert and on which the opinion is substantially based applies to facts assumed or observed to produce the opinion propounded (at [37], citing Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 at [85], per Heydon JA).
A failure to demonstrate that an opinion is based on the witness’s specialised knowledge based on training, study or experience is a matter that goes to the admissibility of the evidence, not its weight (at [42]).

In Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 (‘Kyluk’), Schmidt J offered the following summary of principle (at [176] and [177]):

[176] In the result, the current position appears to be that for expert opinion evidence to be admissible under s 79 of the Evidence Act, it must satisfy the two criteria identified by the plurality in Dasreef. That is, it must establish that the expert “has specialised knowledge based on the person’s training, study or experience” and that the opinion expressed by the expert “is wholly or substantially based on that knowledge”. The evidence must also be presented in a form which reveals the facts and reasoning on which the opinion rests.
[177] An expert opinion which meets those requirements need not be excluded if all of the factual bases upon which the opinion is proffered are not established by the expert’s own evidence. Even if facts which the expert “assumes” or “accepts” in reaching the opinion expressed are not proved in some other way, then the opinion may still be admissible. That will depend on the nature of those facts and what bearing they have on the opinion. If they provide but a small part of the basis upon which the opinion rests, then the failure to prove those facts may have but little impact, and not render the opinion inadmissible. The failure to prove facts which provide a significant basis for the opinion might, by way of contrast, be such as to render the opinion no longer relevant to a fact in issue, no foundation for the opinion having been established. Such an opinion, even if it were admitted, would be of no value. Where an opinion is admitted, the failure to establish a fact which is not of such significance, may nevertheless have an impact on the weight given to the opinion.

It might be noted that, in Dasreef, the plurality also referred to the ‘basis rule’. At [41] it was said that:

Contrary to the submissions on behalf of Mr Hawchar, this analysis does not seek to introduce what has been called “the basis rules”: a rule by which opinion evidence is to be excluded unless the factual basis upon which the opinion is proffered are established by other evidence. Whether that rule formed part of the common law of evidence need not be examined. It may be accepted that the Law Reform Commission’s interim report on evidence (53) denied the existence of such a common law rule and expressed the intention to refrain from including a basis rule in the Commission proposed and which was later enacted as the Evidence Act 1995 (Cth) and the Evidence Act 1995 (NSW). What has been called the basis rule is a rule directed to the facts of the particular case about which an expert is asked to proffer an opinion and the facts upon which the expert relies to form the opinion expressed. The point which is now made is a point about connecting the opinion expressed by a witness with the witness’ specialised knowledge based on training, study or experience.

The plurality did not apply such a basis rule to the resolution of the issue in Dasreef. In commenting on the plurality’s judgment in Dasreef, Schmidt J observed in Kyluk (at [164]) that: “It follows that the plurality did not consider that s 79 required that expert opinion evidence be excluded, unless the factual bases upon which the opinion proffered were all established.”
It is not a strict requirement of admissibility under s 79(1) that the facts upon which a witness’ opinion is based be admissibly proved. However, a failure to prove the facts or analogous facts upon which an expert opinion is based may impact upon the relevance of expert evidence as well as the weight that can be attributed to it: see Kyluk at [177] (per Schmidt J). No issue of that kind arose with respect to the objections here under consideration and the approach of the Court to rulings on the objections, which shall be discussed below, was not based upon any omission to formally prove the facts or assumptions upon which the opinion was based. This stands in contrast to the consideration, which shall also be undertaken below, of whether the experts had actually stated the reasoning, facts or assumptions upon which their opinions were based.
Numerous decisions have emphasised that the opinion of an expert witness must be presented in a way that demonstrates the reasoning by which the opinion was reached and identifies the facts and assumptions upon which the opinion was based: see for example Kyluk per Schmidt J at [176]; Keller v R [2006] NSWCCA 204 at [29] (per Studdert J); and Makita Pty Ltd v Sprowles [2001] NSWCA 305; (2011) 52 NSWLR 705 at [59] (per Heydon JA) (‘Makita’). In Australian Securities and Investments v Rich [2005] NSWCA 152; (2005) 218 ALR 764, by reference to Heydon JA’s comments in Makita at [59], Spigelman CJ stated at [105]:

What Heydon JA identified as the expert’s “prime duty” is fully satisfied if the expert identifies the facts and reasoning process which he or she asserts justify the opinion. That is sufficient to enable the tribunal of fact to evaluate the opinions expressed.

There is clear support for the proposition that an expert witness should identify the reasoning, as well as the facts and assumptions, which have led to the forming of their opinion (although the extent to which such a rationale will be required will depend upon the nature of the opinion expressed and its author: Dasreef at [37]). However, and this should be emphasised here, as it was by the plurality in Dasreef at [35], these requirements as to the expression of an expert witness’ opinion derive from the Court’s need to be satisfied that the opinion given by an expert has been demonstrated to be “wholly or substantially based” on their expert knowledge – the condition mandated by s 79 (1). Accordingly, any consideration of whether an expert witness has adequately identified the reasoning, facts or assumptions upon which their opinion was made should be undertaken with the words and function of s 79(1) at the forefront of the Court’s mind.
It is also important to note that the failure of an expert to display the reasoning for their opinion, or to identify the facts and assumptions upon which their opinion was based, may also demand consideration of whether the expert’s opinion evidence should be excluded under ss 135 or 137 of the Evidence Act: see for example Keller v The Queen [2006] NSWCCA 204 at [43] (per Studdert J); Makita at [86] (per Heydon JA).
In Cadbury Schweppes v Darrel Lea [2007] FCAFC 70; (2007) 159 FCR 397 at [108]-[109] the Federal Court stated (per Black CJ, Emmet and Middleton JJ):

[108]Further, unless a witness states in his or her evidence in chief the grounds and reasoning that have led to the opinion, the opinion is valueless. Before the court can assess the value of an opinion, it must know the facts on which it is based. If the opinion is based on irrelevant facts or facts that are clearly not going to be proved, the opinion is likely to be valueless. It should not be for a cross-examiner to endeavour to elicit the facts or assumptions upon which an opinion is expressed, and it would be unfair to leave such matters to the cross-examiner. Except in a straightforward, uncomplicated case, where the facts are admitted or otherwise readily identified, opinion evidence would normally be rejected under s 135 if the facts or assumptions upon which the opinion is based are not expressly stated.
[109] … Opinion evidence, like any other evidence, must be comprehensible and reach conclusions that are rationally based. The process of inference or reasoning that leads to conclusions ought to be stated or revealed in a way that enables the conclusions to be tested and a judgment to be made about their reliability and the weight that should be given to them. If not, the opinion evidence would normally be rejected under s 135.

The application of s 135 demands a balancing of the probative value evidence has against the dangers outlined in subsections (a), (b) and (c). If the probative value of evidence is “substantially outweighed” by the danger of any of the factors in subsections (a), (b) and (c), the Court has the discretion to exclude that evidence, notwithstanding that evidence being otherwise admissible.
In the exercise of its criminal jurisdiction, the Court must also be cognisant of “the requirement to refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant” pursuant to s 137 of the Evidence Act. The application of s 137 also requires the weighing of the probative value of evidence against the danger of unfair prejudice it may bring to the defendant. However, s 137 provides a higher bar to a prosecutor seeking to bring evidence that has a danger of unfair prejudice to the defendant than s 135 does for two reasons. First, for s 137 to be satisfied the probative value of evidence only need be “outweighed” by the danger of unfair prejudice. This is in contrast to the less strict test under s 135 which is satisfied if the probative value of evidence is “substantially outweighed” by the danger of prejudice (or the other factors that may be considered under that section). Secondly, s 137 mandates the exclusion of evidence which does not satisfy its test in contrast to s 135 which gives the Court the discretion to exclude evidence.
The form of the defendant’s objections suggested that s 136 may be relied upon, as some parts of the expert reports were objected to on the basis of “ss 135-137”. However, no argument as to the Court’s discretion to limit evidence under s 136 was raised. Thus, s 136 has been not featured in the discussion of relevant principles in this context.

Objections to the Georgevits Report

The defendant initially raised 13 objections to the Georgevits report as identified in Annexure A. In dealing with these objections it is convenient to group them according to the nature of the material objected to and the grounds on which those objections were based.
The first group of objections were those based on the ground of relevance. This encompassed objections numbered 6, 9, 10, 12 and 13 of the defendant’s objections. The paragraphs of the Georgevits report relating to objections 6 (paragraph 5.3.1.4), 10 (part 5.3.5) and 13 (Appendix A7) were not pressed by the prosecutor. Objection 9 was to the entirety of part 5.3.3 of the report and objection 12 was to Appendix A6 of the report. Those two objections were sustained. I do not propose to repeat the reasons for those rulings given ex tempore on 7 April 2016.

The second group of objections concerned the ground that the opinions given by the witness were not wholly or substantially based on the witness’ specialised knowledge. This group included: objections 1, 7, and 11, which concerned comments relating to safety systems and measures independent of those utilising programmable software logic; and objections 2 (paragraph 5.1.3), 3 (paragraph 5.2.8), 4 (part 5.3.1), and 5 (paragraphs 5.3.1.2 to 5.3.1.3), which objections concerned opinions regarding the number and placement of photoelectric sensors. The latter objections were also made on the ground that they should be excluded under ss 135 and 137 of the Evidence Act.
I will deal with the latter sub-group at the outset.

Objections 2, 3, 4 and 5: Photoelectric Cell Number and Placement

The witness’ qualification was a Bachelor of Engineering (Honours), specialising in communications and electronics. His evidence revealed that he was an experienced electrical engineer, having worked in that capacity for over 35 years.
The evidence also revealed that Mr Georgevits had a specialised knowledge of the application of programmable software logic to electromechanical systems based on his training, study and experience. Mr Georgevits identified his training, study, and experience in part 1.2 and Appendices 1 and 2 of the Georgevits report. His experience was also elaborated upon, to a lesser extent, in parts of the Georgevits supplementary report.
The witness displayed significant experience in writing code and programs in many languages for a variety of applications across numerous operating systems. His experience in programmable software logic extended to the functional application of software (and the logic therein) to electromechanical systems. Mr Georgevits’ experience in this regard was demonstrated by his work on projects involving the use of programmable logic controllers (‘PLCs’) and other similar programmable devices which are used in the automation of electromechanical processes. This experience included:

working on projects in mines and other heavy industries where PLCs and supervisory control and data acquisition systems were employed;

writing programs to control factory automation and laboratory test equipment utilising programs which operate in a similar way to PLCs;

troubleshooting and repairing computer controlled test equipment used in mining and geophysics.

That experience extended to the use of sensors, such as photoelectric sensors, in software controlled electromechanical systems. In particular, Mr Georgevits identified experience working on automated systems where product position information was ascertained through the use photoelectric sensors or other sensors.
Objection 2 concerned paragraph 5.1.3 of the Georgevits report. However, the objection was confined to the second part of the paragraph (commencing with the words “in conjunction”). That observation assists in understanding the nature of the objection. Paragraph 5.1.3 stated:

In my view, the Incident was made possible by what I consider to be a flaw in the logic in the part of the PLC software code which governs the conditions under which the truck driver was able to activate the Reject Bin gate open sequence, in conjunction with the fact that the installed number and disposition of PE Cell sensors was inadequate to ensure driver safety, given the dimensions of the trucks and trailers that were in use at the Site at that time.

The opinion so expressed referred to flaws or inadequacies in the software code and the manner in which PE cell sensors were installed. However, it is clear the witness was not identifying discrete defects, but rather, by the use of the words “in conjunction”, Mr Georgevits was expressing an opinion that the “incident was made possible” by the combination of the flaws in the coding and the configuration of the sensors, given the dimensions of trucks and trailers using Bin 802.
This opinion needs to be read in the light of the other parts of the report which relate to the subject of that opinion. As the witness made clear in Parts 4 and 5 of his report, the programmable logic housed within the PLC was a logic designed to act upon inputs received from photoelectric sensors placed in particular positions. As the witness stated at paragraph 4.4.5.7 of his report, these “inputs are asserted when the respective PE cells are blocked by trucks”. The receipt of a certain combination of inputs from the photoelectric cells, which provided information as to truck position, were identified in paragraph 4.4.3.8.3 as conditions “which must be met for both truck loading and also for loading the front and back parts of the dog trailer.” It was clear in the witness’ description of the PLC system used in relation to Bin 802 that the number and location of photoelectric sensors constituted a variable that must be known in order to understand the operation of the software logic that was in use.
The witness clearly demonstrated a specialised knowledge of programmable software logic. The witness’ specialised knowledge extended to the use of programmable logic in PLCs and similar devices which operated upon inputs received (it can be noted that no objection was taken to the witness providing opinion in regard to software coding in PLCs). Further, the witness specifically identified experience working with software controlled mechanical systems which utilise sensors in order to identify the position of various things in industry.
The essence of the opinion was that the “PLC software code” when operating in conjunction with the given number and placement of photoelectric cell sensors at Bin 802 at the time of the incident made the incident “possible”. In this sense, the codes were said to be flawed and the configuration of the sensors inadequate. This opinion falls, in my view, within the witness’ expert knowledge of the interactions between PLC software and sensors providing input to the PLC to determine the ‘position’ of trucks.
His knowledge and experience permitted an opinion to be expressed not only as to the relationship between the code and the sensors, but also why, in that respect, they were respectively flawed and inadequate.
The logical extension of that conclusion, and one consistent with the specialised knowledge of the witness, is that the expert may properly, in accordance with the expert code and s 79 of the Evidence Act, express an opinion as to whether the number and placement of sensors were adequate to ensure safety having regard to the flaws in the software code (and vice versa). Whether or not the witness was qualified to express an opinion as to the redesign of the sensor system in Bin 802 to provide additional sensors placed in alternative locations raises additional considerations which could potentially arise under objections 4 and 5 but which were not raised by these objections.
Objection 3 was to the paragraph at 5.2.8 which stated: “The layout and spacing of the PE Cells is such that the truck could have driven past the optimum loading point to collect a load for the truck tray.” When read in the context of the material provided in part 5.2 of the Georgevits report, it is clear that this opinion was made considering the relationship between the photoelectric cells and the software logic used in the operation of Bin 802. The fact that these words would be rendered bereft of meaning if isolated from that context reinforces the interpretation given to paragraph 5.1.3. It follows from the conclusion in regard to objection 2 that this opinion was wholly or substantially based on the specialised knowledge of the expert.
It remains to deal with the contention that the opinions provided in paragraphs 5.1.3 and 5.2.8 should be excluded under ss 135 and 137 of the Evidence Act because of a failure of the witness to identify the reasoning upon which those opinions were based. The opinions, the subject of objections 2 and 3, when read in their proper context as mentioned above, identified an inadequacy in the number and placement of photoelectric cells when operated in conjunction with PLC applying the software logic used in the operation of Bin 802. The reasoning for this conclusion was provided in parts 4 and 5.2 of the Georgevits report. This reasoning consisted of the identification of how the software logic made use of the information it was provided from the photoelectric cells and the identification of the conditions under which it would allow Bin 802’s gates to be opened, which included the situation where a truck cabin was directly beneath the chute of the bin after reversing into position. The witness also stated that a modification of the code alone could not overcome this problem: see Georgevits report at paragraph 5.3.1.1. The provision of this reasoning meant that the defendant could adequately address the opinions given in paragraphs 5.1.3 and 5.2.8 in cross-examination. There was thus no danger of unfair prejudice to the defendant warranting an exercise of the Court’s discretion to exclude the evidence under ss 135 or 137.
Objections 2 and 3 were accordingly overruled.
Objections 4 and 5 contained opinions to the effect that providing more sensors in different positions, in conjunction with more complex logic, would have enabled the position of trucks to be tracked with greater certainty and provided for the safe, correct operation of Bin 802’s gate. After the rulings on objections 2 and 3 were delivered, the defendant no longer pressed objections 4 and 5. The defendant submitted these objections fell under the ruling given to objections 2 and 3. At this juncture, the Court queried whether it did, in fact, directly follow that objections 4 and 5 should be overruled, however in response to this query the defendant stated that the objection would be lifted if required. Following this, part 5.3.1 was admitted, barring paragraph 5.3.1.4 (the subject of objection 6) which had not been pressed by the prosecutor.
There is a logic to the proposition that the ruling made in relation to objections 2 and 3 should cover objections 4 and 5. That logic is that both sets of comments concerned the number and arrangement of sensors used in the operation of Bin 802. As noted above, however, the opinions that were the subject of objections 4 and 5 contained an extension of the opinion that the number and placement of sensors used was inadequate. That extension is the notion that more sensors, in different positions, combined with more complex logic, could do something that the existing number and arrangement of sensors could not. It may be that this extended opinion required further illumination through reasoning. This, however, was not explored.

Objections 1, 7 and 11: Safety Systems Independent of Programmable Software Logic

The Georgevits report contained numerous opinions regarding safety related measures or systems which do not rely upon or utilise software logic systems. Opinions of this nature were contained in parts 2.2 (2.2.1.2 and 2.2.1.3 will be dealt with separately below), 5.3.2 and 5.3.6 of the Georgevits report. In the broad, Mr Georgevits referred to:

the desirability of using primary safety systems that are independent of complex logic; PLC based safety systems should only be used as a secondary, additional safety check; and

the benefits of having primary safety systems made up of simple components.

The witness gave examples of the implementation of such models for Bin 802: purely mechanical measures, like the use of a pull chain, and non-mechanical measures, such as the use of cabin protection for trucks.
The Court received considerable evidence as to a field of study known as ‘functional safety’ earlier in the proceedings and in McAree report.
The following definition of functional safety was provided in the McAree report (at part 3.1):

Functional safety is an engineering methodology which seeks to ensure that in the operation of engineering systems, there are sufficient safeguards against hazards that arise so that the probability of failure of the system is commensurate with the degree of risk posed by these hazards.

Functional safety, as a field, is distinct from the field of engineering associated with software controlled electromechanical systems and the knowledge and componentry of those systems. Functional safety, whilst an engineering methodology, is primarily focused upon addressing risk in engineering and other systems. It involves specific conceptions of risk and how risk should be approached. The Court further received evidence as to the specific study, training and experience required to specialise in the field of functional safety.
Each of the opinions expressed by Mr Georgevits, as summarised at [70]-[71] above, depended not only upon a knowledge of the limits of programmable software logic systems and electromechanical adjuncts but a knowledge of discrete additional layers of safety through engineering or related processes and their application in the workplace (whether as part of the application of the field or discipline of functional safety or not). In my view, a broader field of expertise than programmable logic systems and their application with PLCs and sensors was necessary to express an opinion of the type objected to by the respondent, as the opinion was not confined to the safety measures taken through the operation of programmable logic and devices in which the logic was embedded (and related equipment or devices) but to other safety measures which, Mr Georgevits opined, should be put in place in addition to those PLC type systems. Indeed, the expert opined that the safety systems, other PLC/programmable logic systems, should be the primary basis for the provision of safe operation.
Mr Georgevits did not have a specialised knowledge of functional safety as defined above which would have enabled him to give opinion on these matters. Further, the evidence did not demonstrate the necessary intersection between the witness’ field of specialised knowledge and functional safety or any other discrete area of safety management that could render the witness’ comments wholly or substantially based on the his field of specialised knowledge.
That the witness’ specialised knowledge was not wide enough to cover opinions that were contained in these aspects of the Georgevits report was confirmed by comments contained in the Georgevits supplementary report. At paragraph 41 of the Georgevits supplementary report, the witness wrote of a capacity to “successfully apply myself to complex new tasks that may be outside my field of experience”. This statement concerned the attachment of an article to the Georgevits report that referred to the witness’ research in astrophysics. This reflected an admission by the witness that he believed himself capable of acquiring the requisite knowledge to give expert opinion to the Court through learning, in an abstract manner, things that were outside of his field of specialised knowledge, ultimately disclosing an absence of a specialised knowledge in the area here under consideration, which is required by s 79 of the Evidence Act.
In fact, the Georgevits report and the Georgevits supplementary report only demonstrated that Mr Georgevits had what could be referred to as a ‘generalist knowledge’ of workplace safety other than programmable logic systems. This generalist knowledge or experience was derived from the witness having undertaken many safety inductions, his acquisition of a Western Australia Safety Induction White Card and a familiarity with work place safety practices, and a familiarity with the principles of risk assessment. Such generalist knowledge simply does not satisfy the requirement of s 79 (1) of the Evidence Act which only permits opinions wholly or substantially based on “specialised knowledge”.
In substance then, the opinions expressed by Mr Georgevits on these matters were lay opinions. In that capacity, the opinions would only be admissible if they satisfied the requirements of s 78 of the Evidence Act which stipulates the circumstances in which lay opinions may be admissible.
The exception under s 78 is restricted, by sub-section (a), to opinions “based on what the person saw, heard or otherwise perceived about a matter or event” (see also Lithgow City Council v Jackson [2011] HCA 36; (2011) 244 CLR 352, at [41] (per French CJ, Heydon and Bell JJ)). In this case, the opinion offered by Mr Georgevits in relation to these safety measures was not confined to what he saw, heard or otherwise perceived about a matter or event. Rather, it was the result of his application of a non-specialised knowledge of safety to the information which had been provided to him or was the subject of his observations regarding the operation of Bin 802.
It follows from the analysis given above that objections to the parts of the report which contained opinions on safety measures, which are independent of electromechanical systems controlled or partially-controlled by software logic, must be upheld. Accordingly, objections 1 (relating to part 2.2 of the report) was upheld (excluding paragraphs 2.2.1.2 and 2.2.1.3). Objections 7 and 11 were upheld in their entirety. It should be noted that objection 8 (relating to paragraph 5.3.2.7 of the report) concerned part of the material that was excluded by the ruling made on objection 7. Consequently, there is no need to deal with the additional ground raised by that objection.
The Court overruled the objections to paragraphs 2.2.1.2 and 2.2.1.3. Paragraph 2.2.1.2 concerned the difficulties associated with employing a system that utilises programmable software logic for safety in an environment with many variables. It has already been demonstrated that an opinion as to the flaws in the programmable software logic used in conjunction with photoelectric cells in the operation of Bin 802 (a system that was designed to track truck movement) fell within the witness’ specialised knowledge. If the witness was capable of commenting upon deficiencies in the software logic used in a system having regard to inputs from sensors as to truck positions, it follows (from the evidence as to his training, knowledge and experience) that the witness could make a qualitative statement as to the difficulties of employing software logic in environments with those variables. Thus, the opinion was wholly or substantially based on the witness’ specialised knowledge.
Paragraph 2.2.1.3 contained the following opinion:

Clearly in this instance, given the nature of the Incident and my findings, insufficient effort was expended on testing the software code for all the possible permutations of the variables.

Whilst the witness identified that the opinion contained in that paragraph was based partially on the nature of the incident, it is clear that the opinion derived substantially from the application of the witness’ knowledge of programmable software logic to the software code was used in the operation of Bin 802. Earlier in his report, the witness examined the programmable software logic system that operated Bin 802 and no objection was made to his evidence that there was a flaw in that system. Further, the witness had knowledge and experience such that he could express opinion as to the process which would be involved in detecting that flaw and the effort expended in that process of investigation. Thus, the paragraph was wholly or substantially based on the witness’ specialised knowledge.

Objections to the McAree Report

The defendant initially raised 26 objections to the McAree report as identified in Annexure B. Those objections shall be referred to numerically in accordance with their order of appearance in that Annexure.
It is convenient, at the outset, to identify those objections that were not pressed by the defendant. Those were objections 1, 2, 4, 8, 9, 10 and 19. Of these, 1, 10 and 19 were objections to references made by the witness to the content of Australian Standards 61508, 62061 and 4024, on the ground that such references were hearsay. Those objections were not pressed after the prosecutor indicated that those standards would be tendered separately as evidence.

The remaining objections to the report were generally raised on one, or a combination of, the following four grounds:

opinions were irrelevant to the proceedings (s 55);

opinions were not demonstrated to be based on specialised knowledge (s 79);

the factual basis of opinions was not identified (s 135 or s137); and

the probative value was outweighed by prejudicial effect (ss 135 or 137).

Professor McAree’s training, study and experience was identified in parts 1.2-1.3 and Appendix 1 of the McAree report and in part 2 of the McAree supplementary report. The training, study and experience relevant to the field of functional safety and its application to mining equipment included:

the completion of a Doctor of Philosophy in mechanical engineering;

26 years’ experience as a Mechanical Engineer specializing in the development of technology for the control of electromechanical systems;

work as a member of the Standards Australia Committee IT-0076 which has responsible, inter alia, for the adoption of functional safety standards IEC61508 and IEC 62061 and AS62061 and AS61508, respectively, as well as the management of AS4024;

work supporting mining companies to implement functional safety lifecycles based on AS61508 and AS62061;

fee for service work:

developing functional safety management plans;

facilitating and documenting a layer of protection analysis workshop and safety integrity level (SIL) studies to determine target SILs for identified safety functions consistent with the requirements of AS61508 and AS62061; and

delivery and supervision of the METR3100 course at the University of Queensland since 2007, a course that included principles of functional safety and the associated standards including AS61508 and AS62061.

That list identifies just some of the experience the witness cited relevant to the field. I am satisfied that based on his training, study and experience, Professor McAree had a specialised knowledge in the field of functional safety which extended to the application of AS61508, AS62061, and AS42024 to mining machinery that is controlled by electrical, electronic and programmable devices.
I turn, then, to the particular objections.
Objection 3 was to the words “has a well-understood meaning in the domain and” in line 5 of part 3.1 on page 9 of the McAree report. The objection was upheld on two bases. The words objected to refer to the situation in 2013 which was not relevant to a charge relating to conduct in 2009. Accordingly, the objection was upheld on the ground of relevance. Further, the witness’ evidence did not disclose the facts or assumptions upon which the opinion was based. This gave rise to a danger of prejudice to the defendant who must meet this evidence without knowledge of the source of the witness’ opinions. The failure of the witness to identify the facts or assumptions upon which this opinion was based also rendered the opinion one of minimal probative value. This warranted an exercise of the Court’s discretion to exclude the evidence under ss 135 and 137.
Objection 5 was to the first and second paragraphs in part 3.6 on page 16. The first paragraph contained the opinion that “The AS61508, AS62061, and AS4024 standards are well-known within the Australian mining industry and are regularly cited.” The second paragraph contained the opinion that the “broad-reaching nature of AS4024 relating to the safeguarding of machinery means that it is generally considered in risk reduction of machines used in the mining industry.” The second paragraph also contained further opinions on the extensive use of AS4024 in the mining industry for various tasks.
There are three bases for upholding the objection in those respects. First, in these paragraphs, the witness gave an opinion on the general state of affairs in the mining industry in a particular respect. Whilst the witness demonstrated a sophisticated knowledge of functional safety and standards and their application to mining machinery or mechanical systems in the industry, the evidence did not establish that the witness had a field of specialised knowledge or experience wide enough to enable him to make generalised comments about the practices across the whole (or most) of the mining industry in relation to the application of standards. This conclusion was also supported by the witness’ concession at page 22 of the McAree report that he worked “at an arm’s length from the operational side of the mining industry”.
Accordingly, objection 5 was made out on the ground that the opinions were not wholly or substantially based on the witness’ specialised knowledge.
Secondly, the lack of factual basis provided in relation to these paragraphs also warranted an exercise of the Court’s discretion to exclude the evidence under ss 135 and 137 for the same reasons as were given in relation to the ruling on objection 3. The objection was also sustained on the ground of relevance, namely, the situation in 2013 was not relevant to a charge relating to conduct in 2009.
Objection 6 was to the third and fourth paragraphs appearing on page 17 in part 3.6 of the report. The first two sentences of paragraph 3 regarded the “mature processes around risk mitigation” in the mining industry. The fourth paragraph on this page concerned the aspirational position of compliance with AS61508 and AS62061 as well as its alignment with the practices and processes of the mining industry around hazard identification and control. The objection was sustained in relation to those two parts for essentially the same reasons as were given for the ruling on objection 5. It should also be noted that the third sentence of paragraph 3 was not pressed.
Objection 7 was to the fifth paragraph on page 17 in part 3.6. This paragraph was not pressed by the prosecutor.
Objections 11 and 12 were to the first two paragraphs of part 4.2 on page 21 respectively. These paragraphs concerned the witness’ understanding of clause 13 of the Coal Mine Health and Safety Regulations (2006). These paragraphs were objected to on the basis that they were not demonstrated to be wholly or substantially based on the specialised knowledge of the witness as required by s 79. These objections were overruled on the basis that the paragraphs were treated as background information necessary to understand the opinions that followed with in the report. They were admitted for no other purpose.
Objection 13 was to the third paragraph in part 4.2 of the report on page 21. This paragraph contained an opinion as to the application of the NSW Coal Mine Health and Safety Regulations (2006) to systems such as the control system for Bin 802. The McAree supplementary report contained further elaboration upon the witness’ views regarding legislation and delegated legislation, in particular, the Coal Mine Health and Safety Act 2002 and the regulations made pursuant to that Act. However, at no point did the witness demonstrate a specialised knowledge in the field of interpreting delegated legislation or a practical knowledge or experience of its application either generally or in its application to systems used in the mining industry. The objection was thus sustained on the grounds that the opinion was not wholly or substantially based on the specialised knowledge of the witness as required by s 79 of the Evidence Act.
Objection 14, which was overruled, was to the first paragraph on page 22 of the report. The opinion given in this paragraph concerned the increased awareness in Australia and New South Wales of the applicability of AS61508, AS62061 and AS4024 to mining equipment between June 2007 and 18 February 2009. This paragraph was objected to on three grounds: the opinion was irrelevant; the factual basis was not identified warranting the exclusion of the paragraph under an exercise of the Court’s powers pursuant to ss 135-137; and, the opinion was not demonstrated to be based on the specialised knowledge of the witness. These grounds will be dealt with in seriatim.
As to the first ground, the paragraph could rationally affect the assessment of the probability of the existence of a fact at issue in the proceedings. The prosecutor identified in the charges that the defendant should have undertaken measures to ensure that Bin 802 complied with Australian Standards AS61508, AS62061 and AS42024. This measure was identified in particular 9 of the s 10(2) charge, which provided:

9. The defendant should have ensured that the plant was certified as complying with Australian Standards AS 61508, AS 62061 and AS 42024, by a person with appropriate knowledge and skills, before allowing any truck drivers to work with it. By “certified” the prosecutor means a review, examination, audit or assessment of compliance with those standards.

Such measures were also identified in particular 6(a) of the s 8(2) charge, which provided:

6. as to the failures in 3(a) above:
(a) the defendant should have ensured that the software logic system was designed to comply with, and should have obtained qualified certification (in the sense of a review, examination, audit or assessment by a person with appropriate knowledge and skills) that the software logic system was so designed to comply with, Australian Standards AS61508, AS 62061 and AS 4024, or equivalent certification of the design and operation of the software logic system, before allowing any truck drivers to work with the Reject bin 802;

Evidence probative of the defendant’s awareness of these standards is relevant to a statutory defence, to the measures outlined above, based on its lack of awareness that such measures could be taken. The defendant had indicated by its approach to the case, as later confirmed in submissions, that it would rely on such a statutory defence (which may also raise the question of reasonable foreseeability).
As to the second ground, there was a minor issue as to how the paragraph should be understood. As long as the expressions “in particular” and “in part” in that paragraph were seen to be associated with the paragraphs which immediately followed it (which in my view is the correct reading of the report), the paragraph can be readily understood and the facts upon which the opinion was based are clearly identifiable.
The witness provided part of that factual basis for his opinion by identifying the wide circulation of Legislative Update LU07-05 (LU07-05 was tendered for the purpose of dealing with the objections and admitted for that purpose as Exhibit 117). The significance of that reference was explicated in the second paragraph of part 4.2 of the McAree report. The third and fourth paragraphs on page 22 further outlined that this awareness was increased by workshops run by the Division of Resources and Energy which included discussions of the relevance and application of AS61508 and AS62061. Thus, the author did demonstrate the factual basis for the opinion he expressed, when the report is read in the manner described above, and there was no danger of prejudice to the defendant arising from a failure to do so. Accordingly, an exercise of the Court’s power to exclude the paragraph under s 135 or s 137 was not warranted.
The third ground, that the objection was not wholly or substantially based on the specialised knowledge of the witness, requires further analysis. It was noted above that broad comments regarding the knowledge and practices of the mining industry’s practices in relation to the standards were not demonstrated to be wholly or substantially based on the specialised knowledge of the witness (see discussion at [93] of this judgment). However, the opinion which was the subject of objection 14 can be distinguished from those earlier parts of the report for the following reasons: first, the opinion was confined to the effect of specific communications, being awareness brought about by the circulation of materials and the provision of seminars; and secondly, the facts upon which the opinion was based were identified. Thus, the question that remains is whether the opinion, in this form, was wholly or substantially based on the witness’ specialised knowledge.
The witness’ specialised knowledge as to the standards was demonstrated to be focused on how functional safety principles applied to mining machinery, which included knowledge of how certain Australian Standards applied to that machinery. However, the witness’ knowledge of these communications was also directly associated with his learning and experience in his field of specialised knowledge. The witness’ reasoning for this opinion demonstrated that the witness’ knowledge of the application of functional safety standards extended to a knowledge of publications and seminars which concerned the application of the standards. An opinion confined to identifying the increased awareness brought about by those materials is wholly or substantially based on the witness’ specialised knowledge.
It follows that the objection was overruled so long as the expressions “in particular” and “in part” were seen to be associated with the two paragraphs that immediately followed in the McAree report.
Objection 15 was to the second paragraph on page 22 in part 4.2. As noted above, these comments provided factual basis for the opinion delivered in paragraph one on page 22. To the extent, that they provided further opinion that opinion was substantially based on the witness’ specialised knowledge in accordance with the reasoning given for overruling objection 14.
Objection 16 was to paragraph four on page 22 of the McAree Report. This paragraph concerned how the witness became aware of Legislative Update LU07-05. The objection was based on two grounds: that the evidence was irrelevant; and, that the probative value of the evidence was outweighed by its prejudicial effect warranting its exclusion under ss 135 and 137. The material was relevant for the reasons discussed at [101-103]. The defendant did not demonstrate any prejudice that outweighed or substantially outweighed the probative value of the evidence. Accordingly, the objection was overruled.
Objection 17 was to paragraph five on page 22 of the McAree report. In this paragraph, Professor McAree gave the opinion that the operator of the Ravensworth Coal Preparation Plant could “be reasonably expected to have been aware of Clause 13.1.f of The Regulations and LU07-05 prior to 18 February 2009 given its wide circulation and the promotion of its importance by the Division of Resources and Energy.” Although the witness demonstrated a capacity to comment on the increased awareness of the relevant standards based on the publication of certain materials and the running of seminars, a comment on the specific awareness of the defendant in relation to those materials was not demonstrated to be wholly or substantially based on the specialised knowledge of the witness. There was no basis of reasoning or factual basis provided for the opinion and none established from the source material about how he knew of the distribution of LU07-05. Accordingly, the objection was upheld.
Objection 18 was to the sixth paragraph on page 22. This paragraph contained the witness’ opinion on what the operators of the Ravensworth Coal Preparation Plant could reasonably have been expected to do with such awareness. The objection was sustained for similar reasons to those given in relation to objection 17. I agree that there was no demonstration of how that opinion derived from the specialised knowledge of the witness.
Objection 20 was to the whole of page 29. The prosecutor did not press the contents of page 29 provided that the remainder of the report, so far as it contained reference to the standards, was not excluded in that respect. That condition was approved of by the defendant.
Objection 21 was initially to the whole of part 7 found on pages 30-31 of the report. However, in oral submissions the defendant only pressed the objection in relation to the last paragraph commencing on page 30 and continuing onto page 31, and the remaining two paragraphs on page 31 (which will be referred to as paragraphs 1 and 2 on page 31 respectively).. Objection 22, as pressed, also addressed the last paragraph commencing on page 30 and continuing on to page 31, and paragraphs 1 and 2 on page 31. Objection 21 and objection 22 will thus be dealt with in tandem.
The objection was sustained as to the whole of the last paragraph commencing on page 30 and continuing on page 31. This paragraph, which commenced with the words “Whilst it is pure speculation”, represented a statement, in my view, that Professor McAree was providing speculative opinion as to the potential outcome of a formal safety integrity assessment, if conducted, within the lifecycle framework of any of the appropriate standards. The speculative nature of the comment reflected the failure of the witness to identify the reasoning or the factual basis on which this opinion was based. The objection wasupheld under s 79 of the Evidence Act on these bases. Further, the opinion was prejudicial to the defendant when weighed against the fact that it had had little probative value because of its speculative nature. Accordingly it was also excluded pursuant to s 135 and s 137 of the Evidence Act.
Paragraph 1 on page 31 contained a related conclusion as to what result may have been obtained if a formal safety integrity assessment within the lifecycle framework of any of the appropriate standards been conducted. It follows as a matter of logic that the disallowance of the previous paragraph must exclude the evidence. Accordingly, paragraph 1 on page 31 was excluded.
With regard to the final paragraph 2 on page 31 of the report, objection was taken to the words: “and identified the fatal risk associated with the use of these trucks by driving underneath the opening delivery door.” That objection was sustained because the witness failed to identify the facts, assumptions or reasons on which that opinion was based. This rendered the opinion prejudicial to the defendant as the defendant was deprived of the capacity to address it adequately in cross-examination. That prejudice was compounded by the nature of the opinion being one that reached such a specific conclusion as to one of the outcomes that would have occurred, had the lifecycle process of AS61508 been applied, especially after the expert had identified that it was “pure speculation to pre-judge the outcomes of a formal safety integrity assessment”. Further, there was little probative value to this opinion given the absence of reasoning. Hence, the probative value of the evidence was substantially outweighed by the prejudice of the opinion to the defendant. Accordingly, the words were excluded pursuant to the Court’s power to do so under s 135 and s 137 of the Evidence Act.
The remaining words in the final paragraph on page 31 concerned what would have been considered had the lifecycle process of AS61508 been applied and an opinion that “the application of this standard would have likely resulted in a higher integrity processes being used in assessing the consequences of the changes and in the modifications needed to be made to maintain risks at tolerable levels”.
This opinion, which was admitted, may be contrasted with previous paragraphs in which objections were sustained as this opinion was focused on the nature of the application of the lifecycle process of AS61508, rather than speculating as to the specific outcomes of such an assessment at Bin 802. The factual basis of these comments was demonstrated throughout the report in the witness’ discussion of AS61508: see for example parts 3.5 and 5.1-5.2. The comments were wholly or substantially based on the witness’ specialised knowledge of functional safety and its application to mining equipment, and in particular the witness’ specialised knowledge of the application of AS61508. Further, the comments could rationally affect the assessment of whether risks to health and safety would have been minimized had the defendant implemented measures identified in particular 9 of the s 10(2) charge and particular 6(a) of the s 8(2) charge.

Objection 23 was an objection as to relevance to the final sentence in the third last paragraph of page 32 of the McAree report. The sentence read: “Many mining companies have CSFE/CSFE qualified staff and several organizations provide CSFP or CSFE expertise to the mining industry on a fee-for-service basis.” In support of the objection, it was contended that the sentence did not relate to the date upon which the charges were fixed. It was also contended that the Court should exercise its discretion to exclude the comments under ss 135 and 137.
The sentence in question appeared to refer to the situation in 2013 rather than the conduct in 2009 which was the subject of the charges in these proceedings. However, the sentence had relevance to understanding the surrounding material in the report. That surrounding material concerned practices with respect to certification under the Standards prior to and inclusive of 18 February 2009 which could rationally affect the assessment of whether risks to health and safety would have been minimized had the defendant implemented the measures identified in particular 9 of the s 10(2) charge and particular 6(a) of the s 8(2) charge. There was no danger of prejudice to the defendant in accepting the sentence as long as it was taken to concern the situation in 2013 and beyond. The sentence was thus accepted in that capacity.
Objection 24 was to the whole of page 34. That page concerned whether, prior to 18 February 2009, Bin 802 had conformed to AS61508. The objection was made on the grounds of relevance, that the material warranted exclusion under ss 135 as it constituted a waste of time, and, that the material warranted exclusion under ss 135 and 137 because its probative value was outweighed by its prejudicial effect. However, the evidence was admissible as it could rationally affect the assessment of whether risks to health and safety would have been minimized had the defendant implemented measures identified in particular 9 of the s 10(2) charge and particular 6(a) of the s 8(2) charge. The defendant failed to demonstrate that the comments were prejudicial to it or that admitting the evidence would result in time being wasted. Accordingly, the Court refused to exercise its discretion to exclude the evidence under s 135 or s 137 of the Evidence Act was unwarranted.
Objection 25 was originally to all material in the answer on page 35. However, in oral submissions that objection was reduced to the first four paragraphs in reply to question 7 on that page. That objection, so confined, was ultimately not pressed by the defendant, having regard to the prosecutor’s submissions in the course of the debate. Those submissions were to the effect that the material on page 35 concerned the system of risk assessment in use in the mining industry prior to 18 February 2009 and did not concern the issue of risk management.
Objection 26 was to the presence of the word “also” in the first line of the first paragraph on page 36. The prosecutor did not press this word.
The Court confirms its rulings as to the admissibility of evidence with respect to the Georgevits report, the Georgevits supplementary report, the McAree report and the McAree supplementary report and related rulings given on 30 and 31 March and 6 and 7 April 2016 for the reasons appearing in this judgment.

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Annexure A - Prosecutor's Response to Defendant's Objections to Georgevits' Report (13.8 KB, pdf)

Annexure B - Prosecutor's Response to Defendant's Objections to McAree's Report (51.3 KB, pdf)

Decision last updated: 24 June 2016

Medium Neutral Citation:	Jennifer Ann Nash v Resource Pacific Pty Limited (No 1) [2016] NSWIC 6
Hearing dates:	30 and 31 March and 6 and 7 April 2016
Date of orders:	07 April 2016
Decision date:	24 June 2016
Before:	Walton J; President
Decision:	The Court confirms its rulings as to the admissibility of evidence with respect to the Georgevits report, the Georgevits supplementary report, the McAree report and the McAree supplementary report and related rulings given on 30 and 31 March and 6 and 7 April 2016 for the reasons appearing in this judgment.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY – prosecution under s 8(2) and s 10(2) of Occupational Health and Safety Act 2000 – expert evidence – reasons for judgments on admissibility - objections to expert reports as evidence – prosecutor tendered supplementary reports on application and in chief – objection to receipt of supplementary reports - whether prejudice arose from lack of notice – whether fresh evidence – whether prosecutor’s use of procedure adopted by court prejudicial – case management discretion in criminal proceedings – prevention of unfairness in proceedings – leave to file supplementary reports – partial receipt of supplementary reports for purpose of determining objections to primary reports – partial receipt of supplementary reports as evidence in chief – principles regarding admissibility of expert evidence –operation of ss 76, 78, 79, 135 and 137 of Evidence Act 1995 – reasons for determinations on admissibility of expert reports - specialised knowledge based on training, study or experience – generalist knowledge - whether opinions wholly or substantially based on specialised knowledge – whether reasoning, facts and assumptions on which opinions based provided – generalist knowledge - whether opinion admissible as lay opinion –– whether danger of prejudice outweighed probative value of evidence – whether opinions relevant to proceedings – whether opinion admissible as lay opinion.
Legislation Cited:	Clean Air Act 1961 Coal Mine Health and Safety Act 2002 Criminal Procedure Act 1986 Environmental Planning and Assessment Act 1979 Evidence Act 1995 Occupational Health and Safety Act 2000
Cases Cited:	Australian Securities and Investments v Rich [2005] NSWCA 152; (2005) 218 ALR 764 Cadbury Schweppes v Darrel Lea [2007] FCAFC 70; (2007) 159 FCR 397 Dasreef v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Honeysett v The Queen [2014] HCA 29; (2014) 253 CLR 122 Keller v The Queen [2006] NSWCCA 204 Kyluk Pty Ltd v Chief Executive, Office of Environment and Heritage [2013] NSWCCA 114; (2013) 298 ALR 532 Makita Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 State Pollution Control Commission v Australian Iron (1992) 29 NSWLR 487 Sutherland Shire Council v Benedict Industries [2013] NSWLEC 121
Category:	Procedural and other rulings
Parties:	Jennifer Ann Nash (Prosecutor) Resource Pacific Pty Limited (Defendant)
Representation:	J Agius SC with B Clarke and R J Rankin (Prosecutor) D Buchannan SC with M Shume (Defendant) Solicitors: Crown Solicitors Office (Prosecutor) Seyfarth Shaw (Defendant)
File Number(s):	2016/19616 (formerly IRC 135/2011)2016/19632 (formerly IRC 136/2011)