SafeWork NSW v CJ Formwork Pty Ltd; SafeWork NSW v Growthbuilt Pty Ltd

[2020] NSWDC 501

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v CJ Formwork Pty Ltd; SafeWork NSW v Growthbuilt Pty Ltd [2020] NSWDC 501

Hearing dates:

2 September 2020

Date of orders:

4 September 2020

Decision date:

04 September 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Direct that Jeff Burnette give evidence to the court by audio visual link using MS Teams software from a conference room with AVL facilities provided by the Queensland Law Society.

(2)   Direct that when Jeff Burnette is giving evidence by AVL, the only other person who may be in the room with him is an independent legal practitioner agreed upon by the parties, or in default of agreement, nominated by the President of the Queensland Law Society.

(3)   Direct that Peyman Khaleghi give evidence to the court by audio visual link using MS Teams software from a conference room with AVL facilities provided by the Law Institute of Victoria.

(4)   Direct that whenever Peyman Khaleghi is giving evidence by AVL, the only other people who may be in the room with him are an accredited interpreter and an independent legal practitioner agreed upon by the parties, or in default of agreement, nominated by the President of the Law Institute of Victoria.

(5)   Direct that the prosecutor and the defendant supply to each independent legal practitioner indexed and paginated folders of documents to be shown to the relevant witness; the defendant’s folder is only to be provided to the witness upon the request of counsel for the defendant.

(6)   Grant liberty to apply to my Associate to re-list the matter to amend these directions or make any further directions necessary for the conduct of the trial.

(7)   Costs of the Motions to be costs in the cause.

Catchwords:

EVIDENCE – taking evidence of interstate witnesses via audio visual link (AVL) during COVID-19 pandemic – whether suitable facilities available – whether direction for AVL evidence would be unfair to defendant – witness requiring interpreter – overriding purpose of ensuring a fair trial – direction for AVL evidence can be rescinded or modified if problems emerge

Legislation Cited:

Corporations Act 2000 (Cth), s 471B

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 5B

Cases Cited:

Orr v Lake Coal Pty Limited [2019] NSWDC 178

SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd [2020] NSWDC 330

Category:

Procedural and other rulings

Parties:

SafeWork NSW (Prosecutor)
CJ Formwork Pty Ltd (Defendant)
Growthbuilt Pty Ltd (Defendant)

Representation:

Counsel:

M Scott (Prosecutor)
E Cheeseman SC with C O’Neill (Defendant Growthbuilt Pty Ltd)

Solicitors:

Safework NSW (Prosecutor)
Clyde & Co (Defendant Growthbuilt Pty Ltd)

File Number(s):

2019/32012
2019/32025

Judgment

Background

1. These two prosecutions are listed for trial on a defended basis commencing on 12 October 2020. In each matter the prosecutor filed a Motion seeking directions that some of the evidence be given by audio visual link (AVL). The Motions were heard by AVL using Microsoft (MS) Teams software.

2. The defendant CJ Formwork Pty Ltd (CJ Formwork) is in liquidation and did not appear. Counsel for the prosecutor informed the court that leave is not required to continue the proceedings against CJ Formwork. If CJ Formwork is subject to a voluntary winding-up, then no leave is required. However, if CJ Formwork is being wound-up in insolvency or by the Court, then leave is required pursuant to s 471B of the Corporations Act 2000 (Cth) – Orr v Lake Coal Pty Limited [2019] NSWDC 178 at [11]. For present purposes I will assume that no leave is required.

3. In each matter the prosecutor proposes to call two witnesses who reside interstate. Mr Jeff Burnette resides in Queensland and has serious health problems. There is no opposition by Growthbuilt Pty Ltd (Growthbuilt) to Mr Burnette giving evidence by AVL.

4. Mr Peyman Khaleghi resides in Victoria. Growthbuilt opposes his evidence being given by AVL.

Evidence of Mr Khaleghi

5. Mr Khaleghi was the worker injured in the incident which is the basis for the prosecution. According to the prosecutor’s Statement of Facts attached to the Summons, Mr Khaleghi was injured at a work site on 1 February 2017, which was his first day of work on the site. It is alleged that he was inducted onto the site at approximately 7.00am. At 7.15am that same morning he fell from a ladder and suffered serious spinal and back injuries. He is obviously a key witness in the prosecution case.

The Legislation

6. Section 5B(1) of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) (the Act) enables a court to direct that a person give evidence to the court by audio link or audio visual link from any place outside New South Wales. Section 5B(2) provides:

“The court must not make such a direction if –

(a)   the necessary facilities are unavailable or cannot reasonably be made available, or

(b)   the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c)   the court is satisfied that the direction would be unfair to any party to the proceedings, or

(d)   the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.”

7. Growthbuilt opposes Mr Khaleghi giving his evidence by AVL, on the basis of s 5B(2)(a) and (c) of the Act.

8. Senior counsel for Growthbuilt submitted that:

1. Taking evidence by AVL would be unworkable and unfair;

2. The prosecution had not established that suitable facilities are available.

Basis for seeking an AVL Order

9. The prosecution tendered the affidavit of Mr Pintamalli solicitor dated 1 September 2020. He deposed that Mr Khaleghi informed the prosecution that he resides in Melbourne in the State of Victoria. As is well known, on 2 August 2020 the government of Victoria declared a state of disaster as a result of the COVID-19 pandemic. Melbourne is under “Stage 4” restrictions. There are border restrictions imposed by the government of NSW which would effectively prevent a person travelling from Victoria to New South Wales without authorisation. Even if they were authorised to enter New South Wales from Victoria, that person is required to self-isolate for 14 days and not leave the place where they were residing except to comply with a legal obligation.

10. Mr Pintamalli has made enquiries concerning AVL facilities in Victoria. The Supreme Court of Victoria, the County Court of Victoria and the Magistrates’ Court of Victoria have advised that they could not provide facilities to enable evidence to be given by AVL to the District Court of NSW, due to the court backlog as a result of the declared state of disaster in Victoria. Nor can the Federal Circuit Court of Australia or the Federal Court of Australia in Melbourne assist for the same reason.

11. The Law Institute of Victoria advised Mr Pintamalli that it could provide facilities including a conference room, AVL facilities and catering, to permit a witness to give evidence before the District Court of NSW by AVL, assuming that Stage 4 restrictions in Victoria are removed by 12 October 2020. If those restrictions are still in place by that date, then Mr Khaleghi could not even travel to central Melbourne to give his evidence at the Law Institute of Victoria. No-one can make a prediction as to whether Stage 4 restrictions will still be in place in Victoria by the time this trial commences.

12. Mr Pintamalli also deposed that Mr Khaleghi would give evidence with the assistance of an interpreter. The court was informed that this would be in the Farsi language.

Suitable facilities for AVL Evidence

13. There was no detailed evidence concerning the facilities available at the Law Institute of Victoria. However, given the status of that body, I infer that it would have appropriate facilities to enable evidence to be given by AVL in these proceedings. Of course, the giving of evidence by AVL is always under the control of the trial judge, and if the facilities prove to be inadequate, the order for AVL evidence could be rescinded or modified. The court would at all times have in mind that these are criminal proceedings and that the need for the defendant to have a fair trial is paramount.

Whether AVL Evidence would be unworkable or unfair

14. Senior counsel for Growthbuilt drew attention to the following possible difficulties if Mr Khaleghi gave evidence by AVL:

1. Mr Khaleghi will give evidence through a Farsi interpreter, and this might be difficult to manage by AVL.

2. Mr Khaleghi suffered injuries in the accident and the medical evidence seen by the defendant indicates that Mr Khaleghi’s physical condition involves difficulty sitting or standing for any significant period of time.

3. The medical evidence seen by the defendant indicates that Mr Khaleghi has a reduced intellectual capacity which may lead to difficulties in dealing with the interpreter, reading and interpreting documents and photographs, and picking up the meaning of questions asked.

4. Mr Khaleghi will be shown photographs and he will be asked to mark those photographs – this may lead to a difficulty in conveying the marked photographs to the court.

5. Mr Khaleghi will be taken to past histories which he has given and he will have to look at documents including a Safe Work Method Statement and an induction form signed by him.

6. There will be a credit issue concerning Mr Khaleghi. His memory may be fallible about what he was told at the work site and what he understood based upon what he was told.

15. Counsel for the prosecutor pointed out that most of these issues would present difficulties whether Mr Khaleghi gave his evidence in the witness box in Sydney or by AVL. An interpreter would be required in either instance. Any intellectual difficulties or physical difficulties would have to be accommodated in either venue.

16. Counsel for the prosecutor submitted that the evidence of Mr Khaleghi would be short. He was only on site for about 20 minutes before he was injured. However, senior counsel for Growthbuilt pointed out that Mr Khaleghi’s evidence would not just be about the incident, but would also concern the induction given to him, his relationship with any employer or contractor which resulted in him being on site, the mechanics of the incident and the impact of the injuries upon him.

Consideration

17. I gave consideration to many of the issues which can arise in taking evidence by AVL in work health and safety prosecutions in SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd [2020] NSWDC 330. The trial in that matter occupied 18 days. Witnesses gave evidence on 8 of those days by AVL from Perth, Melbourne, Brisbane and country New South Wales. The process operated smoothly, produced a coherent transcript, and gave both parties the opportunity to ask questions concerning a large number of documents.

18. However, in that case the defendant had consented to evidence being taken by AVL, subject to certain safeguards being imposed to ensure the integrity of the process. As senior counsel pointed out, Growthbuilt opposes the taking of the evidence of Mr Khaleghi by AVL.

19. I accept the submission made by counsel for the prosecutor that most of the concerns raised by the defendant would be concerns whether the witness was in the court room in Sydney, or giving evidence by AVL. Senior counsel for Growthbuilt pointed out that an added difficulty in the present proceedings is that the evidence of a key witness will be given by an interpreter. The experience of the court has been that taking evidence by AVL means that the matter proceeds more slowly than an in-court hearing, and everyone has to moderate their pace. Cases involving an interpreter proceed slowly anyway, and in those circumstances it is difficult to see why the involvement of an interpreter would operate unfairly to the defendant.

20. The physical and intellectual difficulties suffered by the witness would be a factor whether the evidence is given in Sydney or by AVL from Melbourne. As always, the court will accommodate the difficulties of a witness by giving them breaks when required.

21. There may be a practical difficulty if the witness is shown photographs and asked to mark photographs. However, marked photographs can be conveyed to the court in two ways. The first is that the independent solicitor who will attend to supervise the integrity of the process can hold the photograph up to the camera so that all parties in court can see it. If that does not prove satisfactory, then the photograph can be scanned and transmitted to my Associate by email. During the running of the McConnell Dowell proceedings, many documents were sent by email to my Associate during the course of the evidence, and they were instantly distributed to all of the parties without the need for an adjournment or any disruption to the course of the evidence.

22. Showing documents to a witness who is giving evidence by AVL requires planning. Paginated and indexed bundles of documents will have to be provided to the independent lawyer in Melbourne, to be placed before the witness. However good preparation would require that step to be taken, even if the witness was in Sydney giving evidence in the witness box.

23. I propose to make an order for the giving of the evidence of Mr Khaleghi by AVL. However, I again emphasise that the court retains an overall power to ensure a fair trial, and that if any of the difficulties presently perceived by the defendant become apparent, then the direction for AVL evidence can be revoked or appropriately modified.

Orders

24. My orders are:

1. Direct that Jeff Burnette give evidence to the court by audio visual link using MS Teams software from a conference room with AVL facilities provided by the Queensland Law Society.

2. Direct that when Jeff Burnette is giving evidence by AVL, the only other person who may be in the room with him is an independent legal practitioner agreed upon by the parties, or in default of agreement, nominated by the President of the Queensland Law Society.

3. Direct that Peyman Khaleghi give evidence to the court by audio visual link using MS Teams software from a conference room with AVL facilities provided by the Law Institute of Victoria.

4. Direct that whenever Peyman Khaleghi is giving evidence by AVL, the only other people who may be in the room with him are an accredited interpreter and an independent legal practitioner agreed upon by the parties, or in default of agreement, nominated by the President of the Law Institute of Victoria.

5. Direct that the prosecutor and the defendant supply to each independent legal practitioner indexed and paginated folders of documents to be shown to the relevant witness; the defendant’s folder is only to be provided to the witness upon the request of counsel for the defendant.

6. Grant liberty to apply to my Associate to re-list the matter to amend these directions or make any further directions necessary for the conduct of the trial.

7. Costs of the Motions to be costs in the cause.

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Decision last updated: 04 September 2020