SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Ltd

[2020] NSWDC 330

District Court

New South Wales

Medium Neutral Citation:

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

Hearing dates:

23 June 2020

Date of orders:

25 June 2020

Decision date:

25 June 2020

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

(1)   Direct pursuant to the Evidence (Audio and Audio Visual Links) Act 1988 that the evidence of any interstate witness be taken by audio visual link using Microsoft Teams software.

(2)   Direct that the evidence of each interstate witness be taken at the capital city office of Norton Rose Fulbright.

(3)   Note that Norton Rose Fulbright will provide a room from which the evidence will be taken by audio visual link and any necessary IT support.

(4)   Direct that whenever a witness is giving evidence from another State, the only other person who may be in the room is an independent legal practitioner agreed upon by the parties, or in default of agreement, nominated by the President of the Law Society of that State.

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

(6)   Direct that the expert witnesses engaged by the prosecutor and the defendant hold a conclave meeting and produce a written conclave report specifying matters agreed and matters not agreed and the reasons for any disagreement.

(7)   Direct that the evidence of the expert witnesses be taken concurrently by audio visual link and that directions 2-5 above do not apply to expert evidence.

(8)   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.

Catchwords:

EVIDENCE – taking evidence of interstate witnesses via audio visual link during COVID-19 pandemic – whether evidence should be taken from the home or workplace of each witness – whether an independent lawyer should be present when interstate witnesses are giving evidence – documents to be shown to witnesses – manner of taking expert evidence from experts located in different states

Legislation Cited:

Evidence (Audio and Audio Visual Links) Act 1998 (NSW), s 3, s 7(1)

Evidence (Miscellaneous Provisions) Act 1958 (VIC), s 42E

Evidence Act 1977 (QLD), s 39E

Evidence Act 1986 (WA), s 121

Work Health and Safety Act 2011 (NSW)

Category:

Procedural and other rulings

Parties:

SafeWork NSW (Prosecutor)
McConnell Dowell Constructors (Aust) Pty Ltd (Defendant)

Representation:

Counsel:
J Agius SC with M Cahill (Prosecutor)
B Hodgkinson SC (Defendant)

Solicitors:
SafeWork NSW (Prosecutor)
Norton Rose Fulbright (Defendant)

File Number(s):

2018/387429

Judgment

Introduction

1. The defendant has been charged with a breach of the Work Health and Safety Act 2011 (NSW), arising out of an incident at Barangaroo. These defended proceedings are listed for a summary trial before me commencing on 6 July 2020 with a three week estimate. The parties have been discussing the logistical problems caused by the COVID-19 pandemic. There are four lay witnesses from Western Australia. There are three lay witnesses from Queensland. Those witnesses should not be required in the present circumstances to travel to Sydney to give evidence. In the case of the Western Australian witnesses, they may not even be able to cross their State border.

2. The only alternative for taking the evidence of those witnesses is to use the provisions of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW).

3. Section 7(1) provides that a New South Wales court may direct that evidence be taken or submissions be made by audio link or audio visual link from a “participating State”. The phrase “participating State” means another State in which provisions of a law in terms substantially corresponding to Pts 2 and 3 are in force. Western Australia satisfies the definition of “participating State” because of s 121 of the Evidence Act 1986 (WA). Queensland satisfies the definition of “participating State” because of s 39E of the Evidence Act 1977 (QLD).

4. There is also an expert witness who is in Victoria, who will be discussed below. Victoria satisfies the definition of “participating State” because of s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (VIC).

5. The prosecutor wishes to take the evidence of the interstate witnesses by audio visual link. The defendant does not oppose this but has expressed concerns about the integrity of the process.

Procedure for taking evidence from interstate

6. Senior counsel for the defendant raised understandable concerns about an interstate witness giving evidence from a location which is not a court room, and which is nothing like a court room. In particular, the defendant is concerned that some other person may be in the room when the witness is giving evidence by audio visual link, or that the witness could refer to documents or material on a screen, other than evidence in the case, or that there could be communication between the witness and some other person by electronic means, during the giving of evidence.

7. There is no suggestion in this case that any particular witness would be inclined to behave in such a fashion. However, it must be recognised that when a witness gives evidence in a court room, the witness sits in the witness box and is isolated from communication with any other person and is not permitted to look at any documents except those put before the witness by counsel or the court. In a court room there can be no communication between the witness and any other person inside or outside the court room.

8. To safeguard the integrity of the process and ensure that there are no concerns on either side about the taking of evidence by audio visual link from interstate witnesses, I propose to make directions to ensure that, as near as is possible, the witness gives evidence in an atmosphere similar to that of a court room.

9. The solicitors for the defendant have proposed that any interstate witnesses attend an office of Norton Rose Fulbright in the capital city in that State to give their evidence by audio visual link. Norton Rose Fulbright is willing to provide IT support and to provide one of its own lawyers to be present with the witness during the giving of evidence.

10. Senior counsel for the prosecution opposes evidence being taken at any office of the solicitor for the defendant and opposes any solicitor for the defendant being the only person present in the room when the witness is giving evidence.

11. In my view the evidence of interstate witnesses needs to be given from a place where there is IT support immediately available. This court has for the last three months been conducting hearings only by audio visual link. The process only works as well as permitted by the technology of each party. If there is a bad internet connection or if a person is unfamiliar with the operation of the technology, this causes problems in the smooth running of a case. The experience of this court has been that where the evidence is taken from the office of a law firm, which can provide IT support, the process runs smoothly and any problems which do arise can be fixed by an IT person rather than by an amateur.

12. The competing contentions as to where the evidence should be taken are:

1. The prosecutor submits that the evidence should be taken from the home or workplace of each witness;

2. The defendant submits that the evidence should be taken from an office of Norton Rose Fulbright in a capital city.

13. I think there are inherent risks in having a lay person give evidence from their home or place of work. There is much value in imposing upon a witness the formality associated with a court room. I am therefore of the view that the preferable course is to have the evidence of each witness taken from an office of Norton Rose Fulbright in a capital city. True it is that that firm acts for the defendant in these proceedings, and that some of the witnesses are employees of an entity which has also been charged with an offence arising out of the same incident. However, if the involvement of Norton Rose Fulbright is limited to providing an office and IT support, as I think it should be, I do not think that any lay person would be worried one way or the other by the fact that the solicitors for the defendant are providing the office for the taking of evidence. If there are any such concerns, they can be allayed by the court informing the witness about the process before his or her evidence commences.

Presence of an independent lawyer

14. However, I do not think that it is in the interests of justice for Norton Rose Fulbright to provide one of their own lawyers to be present in the room while the witness gives evidence. Again, there can be no suggestion that any such person would be anything but faithful as an officer of the court, but in my view it would be preferable for the person who is in the room, to supervise the giving of evidence, to be an independent lawyer. I propose to make an order to enable the parties to consider whether they can agree upon a suitable independent lawyer to attend the taking of evidence. If no agreement can be reached within a short period of time then my order will request the President of the Law Society of a State to nominate a lawyer to be present during the taking of evidence from interstate witnesses.

Documents for interstate witnesses

15. Senior counsel could not agree on the manner in which documents should be put before witnesses who are giving evidence from interstate. I am aware from previous cases conducted by audio visual link that the software can be used to put a document on the screen for a witness to look at. However, there are disadvantages with this approach. The most obvious disadvantage is that when the document is put on the screen, it takes up part or all of the screen and thus there are problems seeing the face of the witness. The second disadvantage is that often these hearings are conducted from a laptop and a document will only appear in very small font or only part of the document will appear on the laptop screen. Further, it is difficult for a witness to have regard to a multi-page document by audio visual means.

16. In my view each party should prepare a physical folder of the documents which are to be put before the witness. In the case of the prosecutor, this may simply mean that a copy of the Prosecution Tender Bundle is provided so that it can be put before the interstate witnesses. In the case of the defendant, the solicitors for the defendant should prepare a folder of documents to be physically put before the witness to be cross-examined. Such folders should be indexed and paginated.

17. Each witness will be called by the prosecution. The prosecutor is free of course to show the Prosecution Tender Bundle to the witness before the witness gives evidence, and indeed this has probably been done during preliminary conferences. On the other hand, the defendant may wish to cross-examine the witness without giving the witness any warning of the documents to be shown. That too is perfectly appropriate. For that reason, the folder of cross-examination documents can be provided, but not seen by the witness, until they are placed before the witness during cross-examination.

18. The presence of an independent lawyer will facilitate both processes. The folders can be sent to the independent lawyer and that lawyer can take them to the hearing room and hand them to the witness when so required.

Expert Evidence

19. The prosecution has an expert witness who is located in Victoria and the defence has an expert witness located in Western Australia. Both have provided expert reports, and the evidence-in-chief of those witnesses will be given by tender of the expert reports.

20. I have not seen the reports and I have no idea of the areas of agreement and disagreement between the experts. It would be conducive to the smooth running of the trial if the experts meet beforehand in a conclave, and produce a joint report listing the areas of agreement and the areas of dispute. I will make a suitable direction in this regard.

21. As discussed with senior counsel, the evidence of the experts could best be given jointly. Unless there is any particular requirement for those experts to attend an office of Norton Rose Fulbright, they could give evidence by Microsoft Teams from their own offices. I will leave it up to the parties to discuss where the expert should be located when they give their evidence by audio visual link. The solicitors for both parties should ensure that each expert has the appropriate technology and internet connection.

Microsoft Teams Software

22. I proposed to use Microsoft Teams software for the conduct of the trial, in so far as it involves taking evidence from interstate witnesses. The experience of the last three months has been that it is the most stable and reliable software approved for use in a New South Wales court. The evidence given by interstate witnesses will be recorded in the usual fashion and a daily transcript will be available, just as if the witness were sitting in a witness box in Sydney.

23. Normal court etiquette, dress and behaviour are required when Microsoft Teams is used to take evidence.

24. Unfortunately when Microsoft Teams is used, there cannot be a “hybrid” hearing where counsel are in court in Sydney, but the witness is on a screen via Microsoft Teams. That is simply not possible with the technology available in the District Court. So when witnesses are giving evidence from interstate via Microsoft Teams, everyone will be on Microsoft Teams. As the trial judge I will sit in the court room and receive the evidence on my laptop. Counsel will have to be in chambers and ask their questions via Microsoft Teams. The witness of course will be interstate in front of a computer and their evidence will be given via Microsoft Teams. This will require some planning on the part of the parties, as the hearing will take place partly in court (for Sydney witnesses and submissions) and partly by Microsoft Teams (for interstate witnesses).

25. The lawyers for both sides should familiarise themselves with the features of Microsoft Teams. There is some flexibility in choosing which pictures appear on the screen. My own practice has been to “pin” to my screen the picture of counsel asking the questions and the picture of the witness. This provides two large views of the participants in the questions and answers. As various other parties speak, they too can be pinned to the screen. There are other ways for a participant to choose what appears on their own screen.

26. If there are persons who wish to follow the proceedings remotely, this can occur. If the evidence is being taken from interstate via Microsoft Teams, anyone can obtain a login from my Associate to enable them to see and hear the evidence. When the hearing is being conducted with all participants physically in court, remote observers will be able to hear what goes on but will not have vision. This is a limitation of the present court technology.

Conclusion and Directions

27. I make the directions set out below for the conduct of the trial. If the parties wish to vary these directions I will grant liberty to apply. That liberty of course extends to the parties coming back before me to seek additional directions for the conduct of the trial.

28. The directions are:

1. Direct pursuant to the Evidence (Audio and Audio Visual Links) Act 1988 that the evidence of any interstate witness be taken by audio visual link using Microsoft Teams software.

2. Direct that the evidence of each interstate witness be taken at the capital city office of Norton Rose Fulbright.

3. Note that Norton Rose Fulbright will provide a room from which the evidence will be taken by audio visual link and any necessary IT support.

4. Direct that whenever a witness is giving evidence from another State, the only other person who may be in the room is an independent legal practitioner agreed upon by the parties, or in default of agreement, nominated by the President of the Law Society of that State.

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

6. Direct that the expert witnesses engaged by the prosecutor and the defendant hold a conclave meeting and produce a written conclave report specifying matters agreed and matters not agreed and the reasons for any disagreement.

7. Direct that the evidence of the expert witnesses be taken concurrently by audio visual link and that directions 2-5 above do not apply to expert evidence.

8. 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.

Postscript

29. After preparation of this judgment, the solicitor for the prosecutor advised my Associate by email that three of the interstate witnesses may not be able to attend a capital city to give their evidence. I cannot make directions in relation to those witnesses without hearing further submissions from the parties. I encourage the parties to discuss suitable arrangements for those witnesses. If consent directions cannot be agreed, the liberty to apply should be exercised to bring the matter back before the court as soon as possible.

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Decision last updated: 25 June 2020