SafeWork NSW v HD Projects Pty Ltd

[2020] NSWDC 835

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v HD Projects Pty Ltd [2020] NSWDC 835

Hearing dates:

2 December 2020

Date of orders:

3 December 2020

Decision date:

03 December 2020

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1) The new evidence proposed to be led by the prosecutor from Marc Dessens, Barry Ramm and Adam Hamburger is excluded.

(2) I reserve the costs of this application.

Catchwords:

EVIDENCE – advance ruling

Legislation Cited:

Criminal Procedure Regulation 2017

District Court Criminal Practice Note 16

Evidence Act 1995

Work Health and Safety Act 2011

Cases Cited:

S v The Queen (1989) 168 CLR 266

SafeWork NSW v Investa Asset Management Pty Ltd [2018] NSWDC 173

Veysey v R (2011) 33 VR 277

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
HD Projects Pty Ltd (Defendant)

Representation:

Counsel: M Moir (Prosecutor)
R Reitano/M Baroni (Defendant)

Solicitors: NSW Department of Customer Service (Prosecutor)
Leigh Virtue & Associates (Defendant)

File Number(s):

2019/391940

Publication restriction:

None

Judgment

Introduction

1. HD Projects Pty Ltd (the defendant) has pleaded not guilty to a charge that as a person who had a health and safety duty under section 19(2) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Ken Graff and Soane Sitauti to a risk of death or serious injury contrary to section 32 of the Act.

2. At the commencement of the trial the defendant sought an advance ruling pursuant to s 192A Evidence Act 1995, to exclude evidence sought to be adduced by the prosecutor that has only recently been disclosed to the defendant (the new evidence). The defendant’s position is that it cannot receive a fair trial, because it cannot meet the new evidence if it is admitted and the trial proceeds.

3. The defendant sought the advance ruling to decide if in the light of the new evidence that the concessions that it made during the case readiness procedure, set out at [15] below, were still appropriate. I am satisfied that this is a sufficient reason to provide an advance ruling if the application to exclude the evidence is successful.

Factual and procedural background

The incident

4. The defendant was contracted to install AFS Logicwall panels (panels) at a building site in Kellyville (the site). The panels are a permanent formwork system constructed of fibre cement sheets separated by steel stud frames. The panels are erected then filled with concrete to form the walls of the buildings. Arise Constructions Pty Ltd (Arise) was the principal contractor for the site. Arise engaged All Cranes 4 Hire Pty Ltd, trading as Top Gun Cranes (AC) to operate a mobile crane and to provide the services of a crane driver and a dogman, for the purposes of undertaking the building work at the site.

5. On 15 December 2017, panels were being lifted by a mobile crane from the ground to the first floor level of a block of townhouses that were under construction. The panels were stacked horizontally in…