SafeWork NSW v Mark Duffin - [2023] NSWDC 272

District Court

New South Wales

Medium Neutral Citation: SafeWork NSW v Mark Duffin [2023] NSWDC 272
Hearing dates: 13 July 2023
Date of orders: 26 July 2023
Decision date: 26 July 2023
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1)   Grant leave to SafeWork NSW to tender at the trial the Expert Report of Inspector Beacham dated 30 May 2023, without prejudice to the right of Mr Duffin to take objections based upon the rules of evidence.
(2)   Reserve the costs of 31 May 2023 and 13 July 2023.
(3)   Stand the proceedings over to the Work Health and Safety list at 9.30am on 7 August 2023.

Catchwords:
CRIMINAL PROCEDURE – preliminary ruling – case management – whether prosecutor can tender at trial an expert report served after notice of defence response

Legislation Cited:
Criminal Procedure Act 1986 (NSW), ss 247E, 247F, 247G, 247H, 247I, 247J, 247K, 247L, 257F
Evidence Act 1995 (NSW), s 192A
Work Health and Safety Act 2011 (NSW), 19(1), 27(1), 32

Cases Cited:
Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121
Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) [2015] NSWLEC 97

Texts Cited:
Practice Note 16 - Work Health and Safety Prosecutions

Category: Procedural rulings
Parties: SafeWork NSW (Prosecutor)
Mark Duffin (Defendant)
Representation:
Counsel:
J Agius SC with M Moir (Prosecutor)
A Moses SC with J Alderson (Defendant)
Solicitors:
Department of Customer Service (Prosecutor)
Clyde & Co (Defendant)

File Number(s): 2021/256605

Judgment

Introduction

This judgment concerns whether or not the prosecutor SafeWork NSW (SafeWork) can seek at the trial to rely upon an expert report dated 30 May 2023 authored by Inspector Beacham (MFI 5). That report was obtained and served some time after the defendant Mr Mark Duffin had served a Defence Response pursuant to s 247K of the Criminal Procedure Act 1986 (the CP Act).

The Summons

By a Summons filed on 2 September 2021 Mr Duffin was charged that, being an officer of Enviro Pallets Pty Ltd (Enviro), who had a health and safety duty under s 27(1) of the Work Health and Safety Act 2011 (NSW) (the WHS Act) to exercise due diligence to ensure that Enviro complied with its duty under s 19(1) of the WHS Act, he failed to comply with that duty and the failure to comply with that duty exposed workers, in particular Mr Mathew Spann, to a risk of death or serious injury contrary to s 32 of the WHS Act.
In separate proceedings 2021/256600 Enviro was charged with a breach of s 19(1) of the WHS Act.
Enviro conducted a business or undertaking manufacturing wood and pallets. Mr Spann was an employee of Enviro. The Summons pleads that on 11 September 2019 Mr Spann was performing maintenance on a Viking Turbo 505 Pallet Making Machine (the machine) when he was struck and pushed into the side of the machine by the metal arms of a Pallet Turner. Mr Spann suffered fatal injuries.
The Summons pleads that the date of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SafeWork NSW v Mark Duffin

Details

AGLC: SafeWork NSW v Mark Duffin [2023] NSWDC 272
Case: [2023] NSWDC 272
Decision Date: 26 July 2023

CaseChat Overview and Summary

The court was asked to determine whether SafeWork NSW could tender an expert report prepared by Inspector Beacham at the trial, despite the report being served after the defendant, Mark Duffin, had filed his response. SafeWork NSW argued that the report was relevant and necessary to establish their case, and that Duffin had not been prejudiced by the timing of its service. Duffin, on the other hand, contended that the late service of the report constituted an abuse of process and deprived him of a fair trial. The court had to decide whether the prosecutor was entitled to present the expert report at trial and, if so, under what conditions.

The court considered the rules of evidence and case management principles in making its decision. It noted that the late service of the expert report did not necessarily mean that it could not be tendered at trial. However, the court also recognised that Duffin had a right to object to the admissibility of the report based on the rules of evidence. The court held that SafeWork NSW could tender the report, but Duffin retained the right to object to its admissibility. The court also reserved the costs of the proceedings and stood the case over to the Work Health and Safety list for a later date.

In summary, the court granted leave for SafeWork NSW to tender the expert report at trial, while reserving Duffin's right to object to its admissibility. The court also reserved the costs of the proceedings and stood the case over to the Work Health and Safety list for a later date. This decision allows SafeWork NSW to present its case with the benefit of the expert report, while also ensuring that Duffin's rights are protected.

Orders

Orders of the court

(1) Grant leave to SafeWork NSW to tender at the trial the Expert Report of Inspector Beacham dated 30 May 2023, without prejudice to the right of Mr Duffin to take objections based upon the rules of evidence.

(2) Reserve the costs of 31 May 2023 and 13 July 2023.

(3) Stand the proceedings over to the Work Health and Safety list at 9.30am on 7 August 2023.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	SafeWork NSW v Mark Duffin [2023] NSWDC 272
Hearing dates:	13 July 2023
Date of orders:	26 July 2023
Decision date:	26 July 2023
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) Grant leave to SafeWork NSW to tender at the trial the Expert Report of Inspector Beacham dated 30 May 2023, without prejudice to the right of Mr Duffin to take objections based upon the rules of evidence. (2) Reserve the costs of 31 May 2023 and 13 July 2023. (3) Stand the proceedings over to the Work Health and Safety list at 9.30am on 7 August 2023.
Catchwords:	CRIMINAL PROCEDURE – preliminary ruling – case management – whether prosecutor can tender at trial an expert report served after notice of defence response
Legislation Cited:	Criminal Procedure Act 1986 (NSW), ss 247E, 247F, 247G, 247H, 247I, 247J, 247K, 247L, 257F Evidence Act 1995 (NSW), s 192A Work Health and Safety Act 2011 (NSW), 19(1), 27(1), 32
Cases Cited:	Sutherland Shire Council v Benedict Industries Pty Ltd [2013] NSWLEC 121 Sutherland Shire Council v Benedict Industries Pty Ltd (No. 3) [2015] NSWLEC 97
Texts Cited:	Practice Note 16 - Work Health and Safety Prosecutions
Category:	Procedural rulings
Parties:	SafeWork NSW (Prosecutor) Mark Duffin (Defendant)
Representation:	Counsel: J Agius SC with M Moir (Prosecutor) A Moses SC with J Alderson (Defendant) Solicitors: Department of Customer Service (Prosecutor) Clyde & Co (Defendant)
File Number(s):	2021/256605