SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd

[2024] NSWDC 395

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Pendle Ham & Bacon Curers Pty Ltd [2024] NSWDC 395

Hearing dates:

25, 25, 27 and 28 March 2024

Date of orders:

2 September 2024

Decision date:

02 September 2024

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)    The transcript of the recorded interview between Inspectors Ball and Barry of SafeWork NSW and Michael Zammit conducted on 22 September 2021 is excluded.

Catchwords:

EVIDENCE —Admissibility of evidence

CRIMINAL LAW – work health and safety - objection to tender of record of interview

Legislation Cited:

Evidence Act 1995

Partnership Act 1892

Work Health and Safety Act 2011

Cases Cited:

Galvin v R [2006] NSWCCA 66

GPI Leisure Corp Pty Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531

Category:

Procedural rulings

Parties:

SafeWork NSW (Prosecutor)
Pendle Ham & Bacon Curers Pty Ltd (Defendant)
Pendle Ham and Bacon Pty Ltd (Defendant)
PHBC LH Pty Ltd (Defendant)
Michael Zammit (Defendant)

Representation:

Counsel:
B Docking (Prosecutor)
I Taylor SC / M Shume (Defendants)

Solicitors:
Legal, Department of Customer Service (Prosecutor)
Hall & Wilcox (Defendants)

File Number(s):

2023/160812 and 2023/160871
Pendle Ham & Bacon Curers Pty Ltd

2023/160834 and 2023/160857
Pendle Ham and Bacon Pty Ltd

2023/160882
PHBC LH Pty Ltd

2023/160822
Michael Zammit

Publication restriction:

None

RULING

Introduction

1. Michael Zammit, Pendle Bacon & Ham Pty Ltd (the General Partner), Pendle Bacon & Ham Curers Pty Ltd (the Limited Partner) and PHBC LH Pty Ltd (the Labour Hire Company) are defendants in a joint trial in progress before the Court. [1]

   1. I will refer to the Zammit family members by their first name to avoid confusion, and I intend no disrespect by doing so.

2. The charges brought under the Work Health and Safety Act 2011 (the Act) relate to a worker falling through a skylight on the roof of the Pendle Hill Meat Market (the Meat Market) on 22 May 2021.

3. The Meat Market was a business operated by a partnership trading under the name “Pendle Ham & Bacon Curers Partnership” (the Partnership). The Partnership was registered as a limited partnership under the Partnership Act 1892 and created by a Deed of Limited Partnership dated 16 April 2015, constituted by Pendle Ham & Bacon Pty Ltd as the General Partner and Pendle Ham & Bacon Curers Pty Ltd as the Limited Partner.

4. At all material times, Charles Zammit and Jason Zammit were the directors of the General Partner, the Limited Partner and the Labour Hire Company.

5. Michael is the son of Charles and the brother of Jason. He was employed by the Labour Hire Company as a Manager and placed to work with the Partnership.

6. On or about 22 May 2021, Michael instructed Jayanthan Sithiravel (Jayanthan) to instruct other workers to clean solar panels installed on the roof of the Meat Market. He had previously instructed Jayanthan about the safety precautions to be taken by the workers who were to undertake the task.

7. On 22 May 2021 Jayanthan instructed Vinoth Shanmugalingam, Thavasthasan Ponnuthurai and Sedhurajan Velusamy (the workers) to undertake the task. At about 1.00pm, Mr Shanmugalingam fell through a frosted perspex skylight installed on the roof of the Meat Market, about 8m to the concrete floor and suffered serious injuries.

8. The workers were employed by the Labour Hire Company and placed to work for the Partnership.

9. Each of the corporate defendants has pleaded not guilty to the Category 1 offences with which it is charged, on the basis that the prosecution cannot establish the fault element of gross negligence or recklessness set out in s 31 of the Act. The Limited Partner also contends that the prosecution cannot establish that it was operating a business or undertaking or that it was reasonably practicable for it to take any of the particularised measures because it did not engage workers for any purpose.

10. The General Partner and the Labour Hire Company have admitted that they breached their work, health and safety duties owed to the workers and indicated that they would enter pleas of guilty to the Category 2 offences.

11. The prosecutor seeks to tender the transcript of a recorded interview between Inspectors Ball and Barry of SafeWork NSW and Michael conducted on 22 September 2021 (the ROI) against the corporate defendants.

12. It was common ground that the inspectors exercised their power in s 171 of the Act to compel Mr Zammit to answer their questions and as a result the ROI is not admissible against him: s 172(2) of the Act.

13. The corporate defendants object to the tender of the ROI on the following grounds:

1. it would be unfairly prejudicial to the corporate defendants to admit the ROI against them when they are prevented from cross-examining Michael because he is not a competent witness or a compellable witness by operation of s 17(2)-(3) Evidence Act 1995;

2. it would be unfairly prejudicial to Mr Zammit to admit the ROI when he is also a defendant and there is a risk that it may be inadvertently used by the Court against him;

3. it is unclear from the ROI as to what, if any, authority Mr Zammit had to make admissions on behalf of any of the corporate defendants; and

4. it is unclear from the ROI which parts of it, if any, are relevant to a fact in issue in the cases against the corporate defendants, particularly in the light of the agreed facts.

14. The prosecutor contends that the evidence is admissible, on the following bases:

1. the onus was on the defendant or defendants to seek a separate trial and a forensic choice was made not to do so;

2. section 172 of the Act provides protection against the use of the evidence against Mr Zammit but does not prevent its derivative use against others, including the corporate defendants;

3. the defendants are free to test the evidence in the ROI by other means including by adducing other evidence of their choosing;

4. the prosecution is entitled to lead the evidence in ROI and is not limited to the “bare statements of admission” contained in the agreed facts.

Relevant Law

15. Section 87 Evidence Act 1995 relevantly provides:

(1)   For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—

(a)   when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made, or

(b)   when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person’s employment or authority, or

(c)   the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

(2)   For the purposes of this section, the hearsay rule does not apply to a previous representation made by a person that tends to prove—

(a)   that the person had authority to make statements on behalf of another person in relation to a matter, or

(b)   that the person was an employee of another person or had authority otherwise to act for another person, or

(c)   the scope of the person’s employment or authority.

16. Section 135 Evidence Act 1995 provides:

The court may refuse to admit 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.

17. Section 137 Evidence Act 1995 provides:

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.

18. Section 244 of the Act provides:

(1)   For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate.

(2)   If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness.

(3)   If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.

Consideration

Unfair prejudice to Mr Zammit

19. As a judge sitting in a summary hearing, I am capable of bifurcating my mind as to the evidence that is admissible against Mr Zammit and the evidence that is admissible against the corporate defendants. In those circumstances, I am not satisfied that admitting the ROI would cause unfair prejudice to Mr Zammit, because I would not take it into account against him when it came to determining the case.

Are the representations made by Mr Zammit admissions made with authority by the corporate defendants

20. I am satisfied that it is reasonably open to find that the statements made by Michael in the ROI were admissions made with the authority of the corporate defendants, within the meaning of s 87(1)(b) Evidence Act 1995, for the reasons that follow.

21. The evidence led in the trial establishes that the corporate defendants are directed by the Zammit family, of which Michael is a member. His father (Charlie) and brother (Jason) are the directors of the corporation. Each of Charlie, Jason and Michael are involved in the day-to-day management of the businesses operated by the corporate defendants. Jason gave evidence that Michael had been a director of some companies in the past but asked to step back from those duties for personal reasons. Jason gave evidence that Michael had the authority to direct workers and make decisions that involved the expenditure of money by and on behalf of the business.

22. The workers gave evidence that they considered Michael to be their boss, in relation to the work he directed them to undertake in the factory premises and in the Meat Market.

23. Michael is identified in documents of PHBC LH Pty Ltd as a senior manager in the case of an emergency.

24. The corporate structure of the business is complicated. The evidence suggests that it was poorly understood by Charlie, Jason, Michael and by senior administrative employees, such as Ms Zvirblis.

25. The prosecution is entitled to rely on s 244 of the Act. The defendants concede that Michael was an employee of the Labour Hire Company and accordingly s 244 applies to deem that his conduct, knowledge, intention and/or recklessness is that of the Labour Hire Company.

26. The prosecution will also be able to rely on s 244 of the Act in relation to the General Partner and the Limited Partner if it can establish that Michael was an agent or an officer of those companies. At this time, this point has not been fully argued. For the purpose of this application, I will assume that Michael is an agent of the General Partner and the Limited Partner and that his conduct, knowledge, intention and/or recklessness is that of the General Partner and the Limited Partner.

27. My finding on this point is relevant to the admissibility of the ROI only. It may ultimately come to pass that I decide, on the basis of all of the evidence, that Michael did not have much relevant authority on behalf of any one or more of the corporate defendants.

Probative value of the evidence

28. The issues in the case are:

1. In relation to the Category 1 offences, does the evidence establish the fault element of the offence that the relevant defendants were either:

1. grossly negligent; or

2. reckless to the risk to an individual of death or serious injury? (Element E of the Category 1 offence).

2. Was the Limited Partner conducting a business or undertaking? (Element A of the Category 1 offence and Element 1 of the Category 2 offence).

3. If the answer to (2) is yes, was it reasonably practicable for the Limited Partner to take the steps set out in [11] of the relevant Summons?

4. Did Michael Zammit breach his s 28(b) duty by failing to take the steps set out in [7] of the relevant Summons? (Element (b)).

29. Issue 4 can be put to one side, because it is common ground that the ROI cannot be tendered against Michael.

30. For the reasons given, the prosecution is entitled to rely on s 244 of the Act. The ROI can be relied on as evidence of Michael’s conduct, knowledge, intention or recklessness and thereby as evidence of the corporate defendants’ conduct, knowledge, intention or recklessness.

31. It was asserted in submissions that the content of the ROI was essential to proving gross negligence and/or recklessness against each of the corporate defendants. However, no submission was advanced as to how any particular answer or answers in the ROI would be relied on to prove gross negligence or recklessness.

32. It is not in dispute that Michael had the authority to instruct the workers to clean the solar panels and that he instructed the workers to undertake the task in the manner as alleged by them and implemented by them, or that this constituted a breach of the work health and safety duty owed to the workers by the General Partner and the Labour Hire Company. In other words, that the General Partner and the Labour Hire Company failed to take some of the reasonably practicable steps set out in the relevant Summonses.

33. There is a dispute as to what each of the corporate defendants did in the course of operating the business of the Meat Market.

34. The structure of the ROI makes it very difficult to place much weight on the evidence, vis-à-vis any of the corporate defendants. With respect to the inspectors, it is clear that they did not understand the complicated corporate structure that operated the relevant businesses of the Zammit family and accordingly they did not pose their questions by reference to any particular corporate defendant. To be fair to the Inspectors, it is clear from the evidence that the complex corporate structure employed to operate the business was not well understood by Charlie, Jason and other senior administrative employees, such as Ms Zvirblis. The answers given by Michael in the ROI reflect a similar lack of understanding of the roles of the corporate defendants.

35. For example, in Q134 of the ROI, Inspector Barry asked Mr Zammit in relation to “Pendle Ham” who had financial delegation within the company? The problem with that question was that the name of each of the General Partner, the Limited Partner and the Partnership contained the words “Pendle Ham”. This pattern was repeated throughout the ROI for other safety related questions.

36. On my reading of the ROI, Michael appeared to answer questions relating to the business of the Partnership, rather than by reference to any of the specific corporate defendants. Michael’s answers in the ROI do not seem to assist much in determining which corporate defendant did what. The most relevant evidence for determining that question exists in contemporaneous documents that establish that the complex corporate structure was in existence for a number of years prior to the incident.

37. Further, the probative value of the evidence will be significantly reduced if it was admitted, but Michael could not be cross-examined on it. Michael’s evidence in the ROI displays the same fundamental lack of understanding of the corporate structure that operated the family’s businesses, as was apparent the evidence of Charlie and Jason. The corporate defendants will not have the opportunity to cross-examine on the basis for the answers given by Michael in the ROI, particularly relating to his understanding of the corporate structure. In those circumstances, I have considerable doubts about the reliability of Michael’s answers in the ROI.

38. Ultimately, while there is some probative value in the evidence it is limited.

Unfair prejudice

39. The real issue is whether or not the ROI should be excluded on the basis of ss 135 or 137 Evidence Act 1995.

40. I am satisfied that the ROI should be excluded for the reasons that follow.

41. It is beyond question that Mr Zammit cannot be forced to testify in these proceedings: s 17(3) Evidence Act 1995 and Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [51] and [116]. I am told by his counsel that he will not be giving evidence voluntarily. As a result, he cannot be cross-examined by the corporate defendants on the ROI. That is an obvious source of prejudice, that cannot be overcome in the present context. The right to a fair trial ordinarily involves the right (subject to the control of the Court) to test the evidence adduced against a party: GPI Leisure Corp Pty Ltd v Herdsman Investments Pty Ltd (No 3) (1990) 20 NSWLR 15. However, the inability to cross-examine is not necessarily decisive, it will depend on the circumstances of the case and the reason why the evidence is sought to be led: Galvin v R [2006] NSWCCA 66 at [28] and [40]

42. The content of Michael’s ROI is sought to be led by the prosecution as evidence of the conduct, knowledge, intention or recklessness of the corporate defendants, which is directly relevant to the proof of the fault element of the Category 1 offences (which are the most serious offences that the corporate defendants face). On my review of the ROI there are no questions or answers that are precisely on point. I anticipate that I will be asked by the prosecution to draw a number of inferences (and perhaps further inferences from those inferences) arising from Michael’s answers. The corporate defendants will not have the opportunity to resist the drawing of those inferences through testing Michael’s evidence in cross-examination.

43. This is not a case where the prejudice can be cured by adequate directions. In the absence of cross-examination, I cannot assess the reliability of Michael’s evidence.

44. It was submitted that the corporate defendants were free to adduce other evidence to test Michael’s evidence in the ROI. This argument should be rejected for two reasons. First, in the context of criminal proceedings, the corporate defendants bear no onus of proof of any issue and do not have to prove anything. Second, the prosecution did not suggest what other evidence might be available to be called on this issue. Evidence has already been led from all of the witnesses who could reasonably impact this issue. In my view, the most direct and relevant evidence of Michael’s knowledge, intention and recklessness could only come from him.

45. Finally, it was submitted that the onus was on the corporate defendants to apply for a separate trial if they wanted to cross-examine Michael. This argument should also be rejected. The prosecution elected to conduct a joint trial because the offences arose out of the same circumstances and there was considerable utilitarian benefit in doing so. However, by making that election the prosecution would have, or should have, known that Michael was an “associated defendant” within the meaning of s 17 Evidence Act 1995, with the consequence that he was not a compellable witness in the joint trial. I am not satisfied that the corporate defendants have failed to seek an order for separate trials so as to render the ROI inadmissible. In my view, they were entitled to take advantage of the economy of conducting a joint trial, particularly where the defendants were related and could retain joint legal representation.

Orders

46. The orders I make are as follows:

1. The transcript of the recorded interview between Inspectors Ball and Barry of SafeWork NSW and Michael Zammit conducted on 22 September 2021 is excluded.

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Endnote

Decision last updated: 04 September 2024