SafeWork NSW v Rockfield Contracting Pty Ltd

[2020] NSWDC 39

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v Rockfield Contracting Pty Ltd [2020] NSWDC 39
Hearing dates:	26 February 2020
Date of orders:	09 March 2020
Decision date:	09 March 2020
Jurisdiction:	Criminal
Before:	Scotting DCJ
Decision:	(1)   The trial date of 16 March 2020 is vacated. (2)   I direct that the defendant identify any request for particulars (that it has already made, subject to any refinement that may be appropriate in accordance with these reasons) for which it seeks a response from the prosecutor on or before 5.00pm on Friday 13 March 2020. (3)   I direct that the prosecutor provide a response to the requests of the defendant as described in (2) on or before 5.00pm on Friday 20 March 2020. (4)   I list the matter before me on Monday 30 March 2020 at 9.30am to fix a trial date and to hear any further necessary arguments on the particulars issue. (5)   I direct that each party serve and provide to my Associate with written submissions on the particulars issue, if it is to be further argued, on or before 5.00pm on Friday 27 March 2020. (6)   I reserve the questions of costs arising from the vacation of the trial date and the particulars issue.
Catchwords:	CRIMINAL PROCEDURE- Vacate hearing dates- reasons
Legislation Cited:	Work Health and Safety Act 2011
Cases Cited:	Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344 De Romanis v Sibraa [1977] 2 NSWLR 264 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 Marchesi v Barnes [1970] VR 434 S v The Queen (1989) 168 CLR 266 Veysey v R (2011) 33 VR 277
Category:	Procedural and other rulings
Parties:	SafeWork NSW (Prosecutor) Rockfield Contracting Pty Ltd (Defendant)
Representation:	Counsel:    M Cahill (Prosecutor)       M Shume (Defendant)     Solicitors:   SafeWork NSW, Corporate Services,          Department of Customer Service       Kells (Defendant)
File Number(s):	2018/74587
Publication restriction:	None

Judgment

Introduction

1. Rockfield Contracting 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(1) Work Health and Safety Act 2011 (the Act), it failed to comply with that duty and thereby exposed Paul Walsh, a worker at work in the business or undertaking, to a risk of death or serious injury contrary to section 32 of the Act.

2. The matter was listed for hearing on 16 March 2020 with an estimate of 5 days.

3. On 26 February 2020, the defendant made an application to vacate the hearing date on the basis that it did not have an expert report in response to the prosecutor’s expert report, and sought an order that the prosecutor provide certain particulars which the defendant says are necessary for it to defend the charge. On the last occasion, I indicated that my preliminary view was that the hearing should be vacated on the basis of the expert issue alone, and that I wished to consider the particulars issue more carefully by reference to the correspondence between the parties.

4. These are my reasons for confirming my preliminary view that the hearing dates should be vacated and dealing with the particulars issue.

Factual background

5. In 2016 the defendant operated a business providing excavation and horizontal drilling services. In the course of that business the defendant provided a Vermeer Navigator Horizontal Directional Drill (the drill) for use by its workers to undertake horizontal directional drilling. The defendant had contracted with Visonstream Pty Ltd to undertake horizontal drilling under footpaths for the purpose of installing cable to be used by the National Broadband Network (NBN).

6. On 1 April 2016 the defendant was conducting horizontal directional drilling in Station Street, Katoomba.

7. The drill consisted of a mobile powered unit that drove a drill string. The drill string consisted of a number of lengths of metal drill rods that were 3000mm long and 70mm in diameter. The drill fastened the drill rods together to make a continuous string. A drill head was attached to the end of the drill string. The drill head had a series of tungsten carbide teeth for boring through soil and rock. The drive unit could rotate the drill string in forward or reverse.

8. Drilling commenced from an excavated entry pit and finished at an excavated exit pit, which were between 1250mm and 1500mm deep. In between those two pits there were also a series of intermediate pits that the drill string would pass through on the way to the exit pit. Once the drill head reached the exit pit, the drill string would be advanced until the drill head was above the ground. The drill head would then be removed and a reamer was attached together with the cable to be installed. The drill string was then pulled back towards the drive unit from the exit pit to the entry pit.

9. Mr Walsh was employed by the defendant and his role on 1 April 2016 was to track the drill head whilst it was underground with the use of an electronic digi-tracker device (the digi-tracker). During the course of drilling, it was possible to move the drill head up and down and from side to side to avoid underground assets and to direct the drill head into the exit pit.

10. At about 1.30pm, the drill head had been manoeuvred out into the exit pit. The drill string had been advanced out of the top of the exit pit, but the drill head had been advanced too far forward. Mr Walsh was standing in close proximity to the exit pit and communicating with the operator of the drill, asking him to take the drill head back a distance. At about this time the drill string, with the drill head attached, ‘snaked’ out of the ground and stuck Mr Walsh. Mr Walsh sustained fatal injuries.

11. There was no exclusion zone in place around the exit pit and Mr Walsh was not wearing a helmet.

The expert witness issue

12. The prosecutor has qualified Charles Stockton, a civil engineer with extensive experience in horizontal directional drilling. Mr Stockton produced a report dated 21 June 2019 expressing various opinions by reference to specific questions that were put to him.

13. During the earlier stages of the proceedings, the defendant’s solicitor retained an expert, David Gunnell and obtained a report for the purpose of making representations to the prosecutor. That report was served on a without prejudice basis. The solicitor for the defendant understood until about January 2020 that Mr Gunnell was available to provide further assistance if required. As was pointed out in argument, Mr Gunnell went so far as to sign an acknowledgement that he had been given a copy of the Expert Code of Conduct and that he agreed to be bound by it. However, on 29 January 2020 Mr Gunnell wrote to the solicitor for the defendant advising him that it was the policy of his employer not to become involved in matters that would require him to attend court.

14. The solicitor for the defendant has identified an alternate expert. However due to the extent of that expert’s commitments he was unable to prepare a report prior to the listed hearing date.

15. The defendant further complains that the particulars of the charge it has requested are necessary for the expert to be properly briefed. I will return to this issue shortly.

16. I am satisfied that the defendant has demonstrated a sufficient reason for the hearing date to be vacated on the basis of the unavailability of its expert alone, and accordingly I will make that order.

The particulars issue

17. The parties have exchanged a series of correspondence in recent times relating to this issue. I reserved my judgment on this issue to allow me to consider the detail of the particulars sought and the responses provided.

18. Having considered the correspondence it would be best if the matter was fully argued, unless some other agreement can be reached by the parties, because the issues raised are of general importance to other cases in this jurisdiction and I am reluctant to make a decision that may be ill considered. However, it is appropriate to make some general observations as to the law.

19. In the present case, the defendant does not seek to set aside the Summons on the basis that it does not provide sufficient particulars to constitute a valid charge. Rather, it contends that the particulars sought are necessary for it to prepare its defence: De Romanis v Sibraa [1977] 2 NSWLR 264 at 291 cited with approval in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at [26].

20. An accepted purpose of particulars is to inform the defendant of the case that it will face and to allow the court to link the evidence that is given to the allegations in the originating process: Johnson v Miller (1937) 59 CLR 467.

21. An accused must be informed of how the prosecution will prove that it committed the offence. This may include requiring the prosecutor to specify acts that will be relied on to establish a charge. This involves an election by the prosecutor which will be binding on the determination of the case and will inform the admissibility of evidence sought to be led: S v The Queen (1989) 168 CLR 266 and Veysey v R (2011) 33 VR 277.

22. Adequate particulars are essential to an accused receiving a fair trial. The degree of particularisation required depends on the nature and circumstances of the offence and no single approach can be applied to every case: Veysey v R (2011) 33 VR 277.

23. In relation to Work Health and Safety prosecutions the appellate courts have identified a number of relevant matters. The starting point stated in Kirk is that the prosecutor must identify the measures that the defendant was required to take.

24. In Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344 the Court of Appeal stated at [50]:

Equally, to characterize the act or omission constituting the offence as a ‘measure’ does not deny the possibility, in an appropriate case, of specifying the act or omission by reference to a standard described as ‘adequate’. A failure to ensure an adequate system or step to achieve a particular outcome can also be described as a failure to have in place measures sufficient to achieve that outcome. If the outcome is sufficiently particularised, then it will be clear what was the act or omission alleged to constitute the offence.

25. Where the prosecutor fails to particularise its case there is a risk that the judge provides an underlying narrative or structure to the evidence, which is not the prosecutor’s case causing the judge to become an advocate for a party: Veysey v R (2011) 33 VR 277.

26. The court has a common law power to order that the prosecutor provide any particulars that are necessary in the interests of justice: Johnson and Marchesi v Barnes [1970] VR 434. A failure to provide particulars can lead to the dismissal of the charge.

General observations

27. My preliminary views on the correspondence are that the prosecutor’s responses are deficient in three important respects. That is not to say that all of the requests in the correspondence are appropriate or demonstrate a principled approach to the determination of the case. There are a substantial number that should not be pursued any further.

28. First, a prosecutor should not be permitted to avoid giving a binding answer to a request for particulars by applying a blanket label that it is ‘not a proper request for particulars’. In the present case there are some requests for particulars where the defendant has sought identification of the evidence that the prosecutor seeks to rely on to establish a pleaded measure. On the legal principles I have identified, this is an appropriate request for particulars that should be responded to and will frame and accordingly limit the prosecutor’s case. That is not to say that the prosecutor cannot respond in the alternative, if that is an appropriate response.

29. Second, some of the responses fail to identify the evidence in the prosecution brief that will be relied on to establish the charge. On the legal principles I have identified it is not an appropriate response to describe something as ‘a matter for evidence’.

30. Third, it is not an appropriate response to particulars for the prosecutor to seek to keep its options open depending on the evidence that is admitted in the trial. Rather, in order for the evidence to be admitted the prosecutor has to demonstrate how it relates to the proof of the case pleaded in the Summons.

Orders

31. The orders I make are as follows:

1. The trial date of 16 March 2020 is vacated.

2. I direct that the defendant identify any request for particulars (that it has already made, subject to any refinement that may be appropriate in accordance with these reasons) for which it seeks a response from the prosecutor on or before 5.00pm on Friday 13 March 2020.

3. I direct that the prosecutor provide a response to the requests of the defendant as described in (2) on or before 5.00pm on Friday 20 March 2020.

4. I list the matter before me on Monday 30 March 2020 at 9.30am to fix a trial date and to hear any further necessary arguments on the particulars issue.

5. I direct that each party serve and provide to my Associate with written submissions on the particulars issue if it is to be further argued on or before 5.00pm on Friday 27 March 2020.

6. I reserve the questions of costs arising from the vacation of the trial date and the particulars issue.

**********

Decision last updated: 09 March 2020